Gurdial Singh vs Ajmer Singh

S.P. Goyal, J.—The appellant filed by this suit for possession of the land in dispute which originally was owned by Rura Singh, deceased on the basis of a Will as well as being the son of he predeceased, daughter of the testator. The respondents denied the relationship of the plaintiff with the deceased and also the validity of the Will. They further pleaded that Rura Singh was not the owner of the land in dispute at the time of his death which he had given in exchange to them in lieu of their land situate at village Kohla Majra, tehsil Rajpura. The suit was dismissed by the trial Court and its judgment affirmed on appeal by the learned Additional. District Judge which led to the filing of this Second Appeal by the plaintiff.

Although both the Courts rejected the Will set up by the plaintiff, but that is of no consequence because the plaintiff was held to be the son of the predeceased daughter of Rura Singh, which finding was never challenged in the lower Appellate Court. Therefore, the sole controversy between the parties is centered around the issue as to whether Rura Singh gave the land in dispute in exchange to the defendants in lieu of their land situate at village kohla Majra.

The respondents, to prove the exchange, produced Exhibit R1 executed by Rura Singh, deceased, wherein it was stated that he had given the land in dispute in exchange to them and Exhibit D.1, the copy of the application submitted by Rura Singh to the Consolidation Officer requesting that the possession of the land in dispute be delivered to the respondents in view of he said exchange. They also relied on the entries in the Jamabandis and Khasra Girdawris showing their possession over the land in dispute and of the plaintiff over the land in dispute and of the plaintiff over the land given in exchange by them to Rura Singh. The contention raised by he appellant to assail the validity of the exchange was that the document, Exhibit R1, being an Exchange Deed was compulsorily registrable and having been not registered was inadmissible in evidence. It was further contended that once the Exchange Deed was inadmissible in evidence, no oral or other evidence would be admissible to prove the alleged exchange. The trial Court rejected the contention holding that the deed, Exhibit R1, was a record of the part transaction and, therefore, not compulsorily registrable. It was further observed that even if Exhibit R1, was held to be compulsorily registrable, the respondents were entitled to defend their possession under section 53A of the Transfer of Property Act being inapplicable in the erstwhile State of Pepsu, there was no bar for effecting an oral exchange, which had been amply proved from the evidence referred to above. As regards document, Exhibit R1, very queer observation was made that it being duly stamped could be used for corroborating the oral exchange, as deposed to by the D Ws. The approach of both the Courts below was wholly erroneous and unwarranted by law.

In the present case, The exchange took place through written Exchange Deed consisting of Exhibit R1 and the other similar document which was executed by Ajmer Singh on his own behalf and as guardian of respondents Nos. 2, 3 and 4, who were minors at that time, in favour of Rura Singh. The learned counsel for the respondents, however, urged that Exhibit R1, does not bear the signatures of the respondents, it was only an acknowledgement and could not be termed as an Exchange Deed. The argument is wholly misconceived. A contract need not be contained in several documents as held in Regina Ernest De Soysa v. The Attorney General for Ceylon, A.I.R. 1919 Privy Council 242. Though the second part of the document has not been produced on the record, but its execution stands part of the document has not been produced on the record, but its execution stands admitted by the respondents. The following recital in the document, Exhibit R1, shows that it was not a record of past transaction but the exchange had been actually effected through this document:

''I have given in exchange my land valued rupees twenty to Ajmer Singh, Gurnam Singh, Chander Singh and Joginder Singh in lieu of their land valued rupees ten, annas eight and possession there of has been delivered to Ajmer Singh. Ajmer Singh has given in exchange his land through a similar agreement of the same date and has delivered its possession to me''.

The finding of the Court below that the land had been exchanged orally and that Exhibit R1 was not an Exchange Deed, therefore, cannot be sustained and are hereby reversed.

Though it is doubtful if the provisions of the Transfer of Property Act were not applicable in the erstwhile State of Pepsu, But even if that may be so once the Exchange Deed had been written it was compulsorily registrable, the subjectmatter of the exchange being of the value of more than rs. 100/ by virtue of the provisions of section 17 of the Registration Act. The document being unregistered was, therefore, inadmissible in evidence. Once it is held that the deed through which the exchange was effected was inadmissible in evidence, oral and other documentary evidence to prove the exchange would be barred by the provisions of section 91 of the Evidence Act. So the alleged exchange of the land in dispute could not be sustained on the basis of the oral evidence and the entries in the Jamabandis and Khasra Girdawris. The finding of the Courts below on the issue relating to the exchange of land between Rura Singh and the respondents, therefore, has to be reversed.

No other point having been urged, this appeal is allowed, the impugned judgment and the decree set aside and the suit decreed. However, in the circumstances of the case, the parties are left to bear their own costs.