Jamunabai and Another vs Sharadabai and Others

The appeal arises out of the judgment and decree passed by the VIth Additional Judge, City Civil Court, Hyderabad, in O.S.No. 1110/81, decreeing the suit in part.

The 1st respondent-plaintiff filed the suit for recovery of possession of A-Schedule property and for permanent injunction restraining the defendants-respondents 3 to 5 from interfering with the possession and enjoyment of B-Schedule property, and for damages for the use and illegal occupation of plaint-A Schedule portion. The suit was decreed except for the relief of awarding damages. The facts, in brief, are as follows:

The parties are referred to as they are arrayed in the suit. Sharbati Bai was married to one Ganesh Lal, who had four sons viz., Brijmohan, Shambudayal Gupta, Jagadish Pershad and Omprakash Gupta. Ganesh Lal died in 1973 leaving his widow Sharbati Bai and his sons.

Sharbati Bai and Ganesh Lal along with his four sons constituted Hindu Joint Family. Brijmohan, married 1st defendant. His son is the 2nd defendant. Brijmohan predeceased his father. Sharbati Bai had originally purchased an old building in Charkaman locality, Hyderabad, through a registered sale deed dated 2-9-1960 from Smt. Gilli Bai, her brother''s wife. She thereafter, got demolished the old house and constructed mulgies on the ground floor arid residential portion on the 1st floor and one room on the 2nd floor. Ganeshlal was earlier living in a rented house and after the purchase of the house the family moved into the house. Sharbati Bai entered into an agreement with the plaintiff on 10-2-1978 to sell the building for a consideration of Rs.30,000/-. She later on entered into another agreement dated 20-3-1978 agreeing to sell the said building in two portions, separately, in favour of the plaintiff for the same consideration of Rs.30,000/-. Accordingly sale deed dated 5-12-1980 was executed in favour of the plaintiff for eastern portion and possession was obtained by the plaintiff having received Rs. 12,000/-. Subsequently, the western portion was sold under sale deed dated 4-6-1981 for an amount of Rs. 18,0007-. Thus the plaintiff became absolute owner of the entire house comprising A and B schedule properties. It was alleged that defendants 1 and 2 along with defendants 3 to 5, the tenants in the house, trespassed into plaint A schedule portion of the suit house on 1-7-1981 and illegally occupied the same and refused to vacate the same. They are liable to vacate the same and also pay damages for use and occupation at the rate of Rs.2,000/- p.m. They also threatened to occupy the plaint-B schedule property. Hence, the suit.

The case of the defendants 1 and 2 as reflected in their written statement is that the suit house is the joint family property as it was purchased out of joint family funds, though the sale deed was obtained benami in Sharbati Bai''s name. The old house was thereafter demolished and the present suit property was constructed by Ganeshlal during his life time with the joint family funds. After his death the 1st and 2nd floors were constructed again with the joint family funds by his sons. It is their case that the agreements dated 10-2-1978 and 20-3-1978 executed in favour of the plaintiff are bogus. The sale deeds dated 5-12-1980 and 4-6-1981 are also bogus and sham, brought into existence at the instance of plaintiff''s husband. Sharbati Bai was not competent to enter into agreements or executing the sale deeds in respect of the joint family property. The family was having jewellery business under the name and style "Brijmohan Jewellers" located in two rented mulgies run by Omprakash Gupta and Jagadeesh Pershad, PW1 and DW1, the sons of Ganesh Lal. It was also averred that Om Prakash Gupta, son-in-law of Sharbati Bai and his Manager used to secrete all the stocks in trade consisting of valuable gold and silver articles, since Jagadeesh Pershad was innocent, as a result Jagadeesh Pershad issued a notice dated 23-3-1978 to all the members of the family including the plaintiff and the defendants demanding partition and separate possession of his share in the suit house, the gold and silver business and agricultural lands. The agreements referred to above were brought into existence by ante-dating them subsequent to the above notice for partition. M/s. Brijmohan Jewellers filed O.S.99/78 on the file of the III Asst. Judge, CCC, Hyderabad, for permanent injunction against Jagadeesh Pershad and others. Another suit O.S.No. 1380/78 on the file of the same Court was filed by Jagadeesh Pershad, against Omprakash Gupta and Sharbati Bai, for permanent injunction restraining the respondents from interfering with the possession and enjoyment of the present suit house. There were also criminal cases between the parties. The parties, on the advice of the well-wishers, compromised and as a result all the cases including the suits were withdrawn and dismissed on 20-8-1980. As per the terms of the said compromise, among other things, life estate was created in the suit house jointly in favour of Sharbati Bai and Jamuna Bai (D1). it is averred that as Sharbati Bai was having only life estate in the suit property, she could not have conveyed the valid title to the plaintiff, absolutely, as she had no title to the property. Hence the sale deeds are not valid besides being sham and nominal. As the defendants had been in possession of the suit property as per the terms of the compromise, the plaintiff was not entitled for damages. In the rejoinder filed by the plaintiff, the plaintiff had denied the allegation of purchase of the house out of the joint family funds, and it was averred that it was constructed only by Sharbati Bai with her own funds. The plaintiff did not admit that any compromise was recorded by the Court.

Defendants 3 to 5, who are the tenants in the house remained ex parte.

On the basis of the above pleadings the following issues were settled for trial:

"1. Whether the sale deeds dated 5-12-1980 and 4-6-1981 are true valid and binding ?

Whether the defendants trespassed into the suit building on 1-7-1981 and whether the plaintiff is entitled to receive costs ?

Whether the plaintiff is entitled to declaration of title, permanent injunction and damages as claimed ?

Whether the suit is not maintainable without relief to avoid the compromise in O.S.1380/78 on the file of the III Asst. Judge, City Civil Court, Hyderabad ?

To what relief?"

The learned Judge in his judgment, did not agree with his plea that the sale deeds Exs.A3 and A4 are sham or nominal, but found that they are valid. He also found that the suit property was the self-acquired property of Sharbati Bai and not joint family property and hence the sale deeds conveyed valid title in favour of the plaintiff. Further the learned Judge found that the compromise memo was hit by Section 17 of the Registration Act for . non-registration and therefore could not be looked into for any purpose. In the result the suit was decreed as stated supra.

The following points arise for consideration in this appeal:

(1) Whether the agreement of sale Ex.A2 and sale deeds Exs.A3 and A4 are valid or sham or nominal ?

(2) Whether the suit property is the joint family property of Ganeshlal and his sons or the self-acquired property of Smt Sharbati Bai ?

(3) Whether Sharbati Bai could convey valid title under Exs.A3 and A4 in favour of the plaintiff?

(4) Whether the compromise entered into in O.S.1380/78 is hit by Section 17 of the Registration Act and the provisions of the Indian Stamp Act and is not binding upon Sharbati Bai ?

Point No.1:

In order to prove this point the plaintiff relied upon the oral evidence of PW1, plaintiff''s husband. It is his evidence that under Exs.A28 dated 2-9-1960 the property was sold by Gillibai in favour of Sharbati Bai. Ex.A2 is the agreement of sale entered into by Sharbati Bai and the plaintiff with regard to the suit property. Exs.A1 is the receipt executed by Sharbati Bai for Rs. 10,000/- received towards earnest deposit. Exs.A3 and A4 are the registered sale deeds in favour of the plaintiff, executed by Sharbati Bai. Exs.A5 and A6 are the letters of attomment, in favour of the plaintiff, of the tenants in the house. PW3 is the attestor to the agreements and sale deeds. He is the plaintiff''s brother. He testifies to the affixing of the thumb impression by Sharbati Bai on Exs.A2, A3 and A4 and his attestation on them along with another. The evidence of the plaintiff and PW3 is not shaken in the cross-examination and the lower Court found that the agreements and sale deeds are valid and nothing is brought to my notice to interfere with the said finding. I therefore, hold this point in favour of the plaintiff.

Point Nos. 2 and 3 :

Both the points can be discussed together. As already seen supra, Ganesh Lal, his wife Sharbati Bai and their four sons constituted a Joint Hindu Family. Ganeshlal died in 1973 leaving his widow in undivided status with his sons. Sharbati Bai purchased quite an old building, in her own name, under registered sale deed Exs.A28 dated 2-9-1960. It is the case of the plaintiff that she purchased the old house with her own money, demolished the same and constructed the mulgies on the ground floor and the residential portion on the first floor, also with her own money. She was in possession and enjoyment of the house, exclusively letting out the mulgies on tenancy in her own name. It is, however, the case of the defendants that the suit house was the property of the joint family, though it was put by the Kartha of the family in the name of his wife Smt. Sharbati Bai having purchased the same with joint family funds. The entire house was commonly used by all the members of the joint family. The old house was demolished and the mulgies and residential portions were constructed, with the monies of the joint family. Sharbati Bai had no funds either to purchase the house or to construct the suit house.

The Court below has not framed an issue on point No.2 and on point No.3 as well. Learned Counsel for the appellant therefore sought to contend that the judgment is vitiated in not framing the real issues and thus in not focussing the attention of the Court on them which are vital to the correct decision in the suit. But it is to be noticed that the evidence in this regard was considered thoroughly, in dealing with issue No. 1 and the said issue is a comprehensive one. It is true that this is the crucial issue that would arise out of the above pleadings. If it is found that the property was the joint family property, men the suit fails and it was liable to be dismissed. The learned Judge ought to have framed the issue on this aspect and given a clear and separate finding. The learned Judge however, after considering the evidence available regarding the nature of the suit property, whether joint or separate and hearing me arguments, gave a clear finding upon it. He then arrived at a conclusion regarding the validity of the sale deeds on issue No. 1. It cannot therefore be said that the real issue was not considered by the learned Judge and the judgment is vitiated in this regard, as contended by the learned Counsel for the appellants.

In order to throw light on this aspect, the plaintiff examined PW1, her husband, who is the main witness for her. He deposed mat Sharbati Bai purchased the old house, demolished and constructed the present house with her own money. She executed sale deeds Exs.A3 and A4 and delivered possession of the suit house to the plaintiff. She attorned under Exs. A5 and A6, the tenants in favour of the plaintiff. In his cross-examination certain facts have been elicited which, in my opinion, negative his plea that the old house was her separate property. In the cross-examination it is brought out that Sharbati Bai had no property prior to 1960, but only cash. But he could not say where she was keeping the money and how she got the money, or what was the source of her income. He himself admitted that his father was having the rice mill. He says that he was running the jewellery business in 1962, though he was a minor at that time. It should also be noticed that his father was alive at that time. He, however, comes out stating that his father was an agriculturist having 20 or 22 acres of land. It is true that he deposed that the permission for construction of the suit house was in the name of his mother only and the property was purchased and the house has been constructed only with her funds. He also deposed that during the life time of his father itself there was a division in all the properties of the family in 1964 and thereafter they have been enjoying the property in their names and that he continued to carry on the jewellery business. It was also brought out that the permission under Urban Land Ceiling and Regulation Act was applied and given in the name of his mother. The property tax receipt relating to the suit property Ex.A45 was in the name of his mother and the notice of house tax Ex.A46 was also in her name. PW2, one of the tenants of the suit house was examined to show that he was a tenant under Sharbati Bai and he has been paying rents to her and not to Ganeshlal and that the suit for eviction in 1976 was also filed by her. PW3 who is the plaintiffs brother is an attestor to the receipt Ex.Al, agreement of sale Ex.A2, sale deeds Exs.A3 and A4. He deposed to the attestation to the documents along with another attestor and to the delivery of vacant possession of the suit house to the plaintiff, in his presence. This is the only evidence in support of the plea regarding the nature of the suit property, on the side of the plaintiff.

PW1''s brother was examined on the side of defendants as DW1. It is his evidence that he had taken over the management of the family as Kartha after his famer''s demise. He deposed that his father was carrying on jewellery business as well as agriculture. The rice mill was also owned by his father and not by his mother. His mother had no property of her own. In 1960, they used to live in a rented house. The suit house was purchased by his father from Gilli Bai, though the house was put in the name of his wife. On the date of purchase, his mother had no business or property. He stated that in their community generally immovable properties are purchased by men in the names of their spouses. It is further his case that the old house was demolished and the suit house was built entirely with the funds of joint family. After the death of his father in 1973, he and PW1 continued the jewellery business and it was they who had completed the construction of the suit house. It is his case that there was a division in the family in 1977 and thereafter they had their own businesses separately. The suggestion made that his wife was a partner of Sandeep Sari Centre along with Brijmohan, Jamunabai and Sharbatibai (D1 and plaintiff) and that PW1 was the sole proprietor was denied. The 1st defendant was examined as DW2. It is brought out in her evidence that the rice mill was given to Shambudayal (one of the sons) to his share. She, however, said in her cross-examination that there was no proof to show that the suit house was constructed by her father-in-law. But, she said that the agricultural lands fell to the share of 2nd defendant, her son, and he sold them in Ex.A15 dated 19-3-1981. On the above evidence the learned Judge came to the conclusion that the suit property was the exclusive property of Sharbati Bai. Learned Counsel for the appellants contends that the evidence adduced supports his plea that there was sufficient nucleus of joint family property to have purchased the suit property and leave the suit property standing in the name of a member of the joint family must be treated in law as joint family property. It is, however, contended by the learned Counsel for the respondents that Sharbati Bai purchased the house with her funds in her own name and treated the same as such till it was disposed of by her to the plaintiff. Since she was running the rice mill, she must have had sufficient funds in her hands to purchase the house and the evidence let in by the defendants was inadequate to establish that the suit property was purchased by joint family funds.

After discussing the evidence in this regard, as stated supra, the learned Judge held that the suit property was the serf-acquired property of Sharbatibai. Learned Judge relied upon two sets of circumstances to arrive at the finding that the suit property was self-acquired property of Sharbatibai:

(1) The admissions made by the 1st defendant that there was no evidence to establish that the suit house was purchased by Ganeshlal with joint family funds; and

(2) Sharbatibai had more than one source of income to purchase the suit house, from agricultural lands, as allegedly admitted by 1st defendant and also from the rice mill.

Both the grounds, in my view, are untenable, either in law or on facts.

Hindu law on this aspect of the case, namely, the nature of the property in the name of a member of the joint family, is well settled. There is no presumption that the property held by any member of joint family is joint. The initial burden rests upon the person who seeks to assert that the property is joint. If it is established that the family possesses adequate joint family property which might have fonned the nucleus to acquire the property, then the burden shifts to the person alleging mat the property is self-acquired, to establish affirmatively that the property was acquired without the aid of the joint family property. A classic decision on this aspect is Appalaswamy v. Suryanarayanamurti AIR 1947 PC 189, where Sir John Beaumont observed as follows:

"Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."

The Supreme Court in Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, , following the rule laid down in the above Privy Council case, observed that:

"The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."

Learned Judge of the trial Court had misdirected himself in seeking a positive proof by the defendants to establish that the suit house was purchased and new house was constructed by joint family funds, without keeping the above principle of law in mind. In my view the initial onus was discharged by the defendants in the present case in establishing that the joint family had possessed adequate property from the income of which the suit property-old house might have been acquired, and the new house constructed. It was elicited in the cross-examination of PW1 himself that his father was an agriculturist who had 20 or 22 acres of land. DW1 also deposed that his father got agricultural land at Chippalapalli of Ibrahimpatnam Taluk of R.R. District. DW1 also stated that his father used to do business in jewellery in the name of Brijmohan Jewellers. DW2, who is the 1st defendant, deposed that her son 2nd defendant, sold Ac.22.20 gts., of lands in 1981 and those lands fell to the share ofher son. PW3 however, deposed that he was a minor of 17 or 18 years in 1962 and that he was doing jewellery business at that time, though his father was alive at that time. It is his case that the jewellery business was of his own business and not that of his family and his father was only an agriculturist. There is no evidence to show that the jewellery business was his own and the family Had nothing to do with it. It is too hard to believe that a minor would be permitted to do jewellery business as a proprietor concern. Ex.Xl makes the matter clear. It is clearly stated in Ex.Xl a .statement made before the Superintendent, Central Excise, Hyderabad, that "Brijmohan Jewellers" was a family firm named after their deceased brother Brijmohan. The suit house was purchased in 1960 for a sum of Rs.5,000/- under Ex.A28. The income from the agricultural lands and the jewellery business must be adequate to acquire the suit property. The evidence of DW1 is clear that after the purchase of the old house, it was pulled down and his father constructed the ground-floor spending about Rs.20,000/-. After the death of his father, he and PW1 continued the jewellery business as a joint family business. He and PW1 completed the construction of 1st floor, which was started by his father before his death. A total amount of Rs.30,000/- to 35,000/- was spent for 1st floor and 2nd floor. Thus, the jewellery business must have provided adequate nucleus for construction of the new house. Thus, the initial burden has been discharged by the defendant. The plaintiff, however, failed to establish that the suit house was acquired by Sharbati Bai with her own funds without the aid of the joint family funds. PW1 himself has stated that prior to 1960 his mother had no properly but she was having cash. But he could not say, when pursued in cross-examination, where she was keeping the money. A vague answer was given stating that she might be keeping the money in the house or in the safe deposit locker. He, however, admitted that she had no bank account. Learned Judge, however, proceeded on the footing that she had a rice mill of her own which could be one of the sources of her income. But it is the case of the defendants that the rice mill also belonged to joint family. PW1 in fact admitted in cross-examination that his father was having a rice mill in Shamshergunj. It is not disputed that there was only one Saraswati Rice Mill. He, however, pre-varicates later when he said that his mother owned a rice mill. But, admittedly, there is no iota of evidence to prove how Sharbati Bai could acquire the rice mill. It is not her case that it was purchased out of her Stridhana. There is also no evidence to show that she had any Stridhana. No other evidence is forthcoming to show that she had other funds to purchase the rice mill. PW1, except stating that she was having cash, could not explain how it was acquired, how much was the cash and for how much the rice mill was acquired by her. DW1 had clearly stated that his father was having rice mill by name Saraswati Rice Mill at Shamshergunj. which was started in 1950, It has also come out in the evidence of DW2 that the rice mill was given to Shambudayal (one of the sons), to his share. It is, however, suggested by the plaintiff that Shabarbati Bai gave the rice null during the alleged partition in 1964 to Shambudayal. This suggestion is demonstrably false, because in Ex,B4, the written statement filed by PW1, who was the 1st defendant in O.S.No.1380/78 on the file of III Asst, Judge, City Civil Court, Hyderabad, it was averred that in the alleged partition in 1964 Shambudayal, who was living separately, was allotted Saraswati Rice Mill towards his share. Thus it is evident that the rice mill was a family property, which was allotted to Shambudayal, who was one of the coparceners. If it were self-acquisition of Shabarbati Bai, it could not have been subjected to partition among the coparceners. It is the uniform evidence of DW1 and 2 that Shabarbati Bai had no property of her own, which was also the case of PW1, prior to 1960. Having said that she had no property in 1960, he did not give any details as to when and how his mother acquired the rice mill. In view of the above cogent evidence, which I am inclined to accept, the finding of the learned Judge that the rice mill belongs to Sharbatibai and it provided adequate nucleus, appears to be erroneous.

Learned Judge also committed an error in holding that Sharbatibai had also agricultural lands to provide the source of income to purchase the suit property. It is true that DW2 admitted that she had some agricultural lands in her village, But it should be noticed that she also stated that she had no capacity to purchase the suit house nor to construct the house with her own funds. She asserted that both the floors of the suit house were constructed by her father-in-law and that her mother-in-law did not construct the suit house. As per the above principle of law enunciated in Applaswami case (supra) by the Privy Council, the person alleging self-acquisition should establish affirmatively that the property was acquired without the aid of the joint family property. On the basis of a solitary statement about her having some agricultural lands in her village, in the absence of any other evidence regarding extent of the lands, income therefrom, particularly in the teeth of evidence of PW1 that she had no property whatsoever in 1960, it is not possible for me to agree with the learned Judge, to hold that the plaintiff established that the suit house was purchased by Sharbati Bai with the income from the agricultural lands. Thus, it is clear from the above evidence that the plaintiff failed to discharge her burden. The appreciation of evidence of the learned Judge is sketchy. His approach to the case is erroneous. Learned Judge also committed serious error of law in holding that there was no evidence to show that the suit house was constructed by Ganesh Lal. Law does not require a positive proof that the house was constructed from the funds of joint family. The defendants succeed if they show that the family had sufficient nucleus to purchase the suit house and to construct the new house. As seen above learned Judge has also committed serious error in holding that Sharbati Bai had capacity to purchase the suit house. I am, therefore, of the view that the suit property is a joint family property and not self-acquired property of Sharbati Bai and the finding of the learned Judge in this regard is erroneous. Points Nos.2 and 3 are answered accordingly.

Point No. 4:

It is stated in the written statement filed by the 1st defendant, that O.S.No.939/78 on the file of III Asst. Judge, City Civil Court, Hyderabad, was filed by Brijmohan Jewellers and another suit O.S.No.1380/78 on the file of the same Court was filed by Jagadeesh Perashad and 2nd defendant against PW1 and Sharbati Bai for permanent injunction restraining them from interfering with their possession and enjoyment of the present suit house. There were also criminal cases between the parties. The above litigation was compromised due to the intervention of well-wishers. A compromise memo, Ex.B2, was filed under Order 23 Rule 3 read with Section 141 of CPC in the Court in O.S.1380/78. As per the terms of the compromise the suits were withdrawn and dismissed, the criminal cases pending were not pressed and they were also to be dismissed or compounded, the possession of one Jewellery shop should exclusively belong to Jagadeesh Pershad and another shop at Charkaman should go to Omprakash Gupta and in the suit house, joint life estate was created in favour of Sharbati Bai and Jamunabai (D1). After their death the would-be wife of Jaganmohan (D2) should become the absolute owner of the suit house. However, in the event of no marriage taking place or the marriage desolved or death of his wife, the 2nd defendant should become the absolute owner of the property. Another house at Shamshergunj should go to Shambudayal Gupta. Sharbati Bai, PW1, 2nd defendant, as well as their Counsel signed on Ex.B2. As per the evidence on record, the suits were dismissed in view of the compromise as withdrawn.

Relying upon the compromise, by which the suits were dismissed in terms of the compromise, the learned Counsel for the defendants strenuously contends that Sharbati Bai, being signatory to the compromise and having acted upon the same, had no title to dispose of the suit house, as under the compromise she was given only a life interest jointly with 1st defendant and the sale deeds in favour of the plaintiff are not valid. The compromise was spoken to by PW1. In the rejoinder filed by the plaintiff it was, however, stated that she was not a party thereof hence no proceedings thereunder could bind her, and she was not personally aware of any compromise. Whatever the effect of the compromise upon the plaintiff, it is established that Ex.B2 compromise memo was filed in the Court and the suits pending between tlie parties were dismissed. Under the compromise memo as seen supra, Sharbati Bai would get only life interest in the suit house along with 1st defendant. She appears to have relinquished her exclusive rights in the property. She was a signatory to Ex.B2. It was therefore, submitted that she was not competent to convey the property absolutely in favour of the plaintiff. But the learned Counsel for the respondent vehemently refuted the contention and submitted that no reliance can be placed upon the compromise memo, firstly as it is hit by Section 17 of the Registration Act, 1908 (for short ''the Act'') as it was not registered; secondly, it is inadmissible in evidence as it was not duly stamped. Learned Counsel submits, elaborating has contention regarding the first objection, that Ex.B2, having created rights in the parties, extinguishing absolute and exclusive rights and creating only life interest in Sharbati Bai, creating a life interest in 1st defendant creating a future right in the would be wife of die 2nd defendant and creating an absolute right in 2nd defendant, requires registration. It is further contended that as the suits were not dismissed in terms of Ex.B2, and the tenns of tlie compromise memo were not incorporated in the decree, the exception engrafted in sub-section (2)(vi) to Section 17(1)(b) of the Act would not come into operation. To appreciate the first objection about non-registration of the document, let us read the relevant provisions of Section 17 of the Act. u/s 17(1)(b) any non-testamentory instrument purporting to create, declare assign or extinguish any right, title or interest, of tlie value of Rs. 100/- and upwards, to or any immovable property, shall be registered. Section 17(2)(vi) however, is one of the exceptions engrafted to the aboye sweeping provision. Under this clause, notwithstanding anything contained in Section 17(1)(b), any decree or order of the Court is not liable to be registered. Admittedly the compromise falls u/s 17(1)(b) and is therefore liable to be registered. Ex.B2 being unregistered, is hit by Section 17(1)(b) and is inadmissible in evidence. But the question to be decided is whether in view of the exception engrafted in Section 17(2)(vi), the decree passed in O.S. 1380/78 dismissing tlie suit in view of the compromise, can be compromise admissible and relied upon. It is the contention of the learned Counsel that the exception is not applicable since the decree was not passed in terms of the compromise.

It is well settled that unless the terms of the compromise are incorporated in the decree the compromise is inadmissible. The decree where the suit was dismissed on the ground that the parties have compromised does not come within the exception since the decree does not refer to any of the tenns ofthe compromise. On the other hand a decree where a suit was dismissed in terms ofthe compromise is incomprehensible without reference to the compromise.

In Fazal Rasul Khan v. Mohd-ul-Nisa AIR 1944 Lah 394, the question for determination was whether disposal of a suit by stating "Suit compromised and accordingly dismissed", could be said to embody the terms of the compromise. The Bench opined that it would not unless the tenns of the compromise are in some way cinboded in the decree or tlie order, which would be so where a suit is disposed of by saying "suit decreed in the tenns of the compromise." This view of the Bench was approved by the Supreme Court in Bhoop Singh Vs. Ram Singh Major and others, , where the legal position qua clause (vi) of Section 17(2) of the Act was summarised. The relevant proposition is -

"(4) If the decree were not embody the terms of compromise as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.''''

Admittedly, O.S.1380/78 was dismissed in view of the compromise. Hence, it has to be held that the compromise would not fall within the exception and is therefore inadmissible in evidence and does not bind the plaintiff. It is, however, contended by the learned Counsel for the defendants that as PW1 had admitted in his evidence that the suits ended in compromise, it is now not open to the plaintiffs to contend that the compromise was inadmissible in evidence. I do not agree. A mere statement that the suits ended in compromise would not carry the case of the defendants any further unless they further establish the terms of the compromise.

Learned Counsel, however, surprisingly comes forward, with an assertion, at this stage, that a decree in fact was passed by the Court in terms of the compromise. However, he fairly conceded that the said decree was not brought on record in the present suit either in the Court below or in this Court. No reason is assigned why it was not filed. He, however, filed CMP No.3606 of 1998 under Order 41 Rule 27 of Code of Civil Procedure, during his reply arguments, to call for the decree in O.S. 1380/78 dated 19-8-80 from the Court of III Asst. Judge, City Civil Court, Hyderabad. Learned Counsel for the respondents objects for this petition as highly belated and as not maintainable in law. Elaborate arguments were heard as to the maintainability of the petition. Since the objection of the learned Counsel for the respondents depends upon this question, I propose to dispose of the C.M.P., at this stage.

It is the contention of the learned Counsel for the appellants that the terms of the compromise were read into the decree and the memo Ex.B2 filed by the parties was directed to be incorporated into the decree and such a decree was in tact passed by the Court below. Hence it was necessary to call for the decree drafted in the said suit from the Court in order to do justice to the parties. It is submitted by the learned Counsel for the respondents that the trial Court and the parties proceeded with the present suit on the premise that no compromise decree was passed and the lower Court also gave a clear finding to that effect. It is further submitted that a fabricated document was brought into existence quite some time ago, with the connivance and cooperation of the corrupt officials in the City Civil Court, Hyderabad, and is now sought to be filed. It was further admitted that when Jagadeesh Pershad, the 1st plaintiff in O.S.No.1380/78, filed a copy application of the decree in the said suit in 18-3-82., the same was returned with an endorsement "decree cannot be prepared u/s 2 C.P.C." However, after the disposal of the present suit, when he made an application on 27-10-1987, for copy of the compromise decree in O.S.1380/78, a decree was fabricated and was furnished to him. On the complaint of PW1 the matter was enquired into by the Chief Judge, City Civil Court, Hyderabad, when the fraud came to light. Hence, the fabricated decree was ''suitably amended'' and suitable action was taken against erring officials. Thus fraud was played on the Court to obtain a compromise decree, which was, however, thwarted by timely intervention by the Chief Judge, City Civil Court, Hyderabad.

Order 41 Rule 27 C.P.C. deals with production of additional evidence in the appellate Court. It is seen tliat the application was filed under clause (b) of sub-rule (1) of Rule27 Order41 C.P.C. Under sub-rule(1) it is made clear that the parties to an appeal shall not be entitled to produce additional evidence in the Appellate Court, except under the circumstances enumerated therein. Under clause (b) additional evidence can be produced:

(1) to enable the Court to pronounce judgment; (2) for any other substantial cause. Clause 1(b) of Rule 27 CPC came for interpretation by Courts in several cases. As laid down by the Privy Council in the well known case of Kessowji v. G.I.P., Railway, 31 I.A. 115, is

"the legitimate occasion for the application of the present rule is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it."

This view was reiterated in a later case of AIR 1931 143 (Privy Council) , where it was observed that the crucial test was

"whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."

In Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 , following the principle enunciated in the above decisions, it is observed -

"The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 Civil P.C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent."

In K. Venkataramiah Vs. A. Seetharama Reddy and Others, it was observed -

"Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where eventhough the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment'', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code.

(17) It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in AIR 1931 143 (Privy Council) the Privy Council while discussing whether additional evidence can be admitted observed:

"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."

In the light of the above position of law let me consider the request to adduce additional evidence sought to be produced in the appeal. The application is filed to call for the decree in O.S.1380/78, dated 19-8-80, from the Court of III Asst. Judge, City Civil Court, Hyderabad. In the written statement filed by the defendants 1 and 2 in the present suit it was clearly averred that O.S.Nos.939 and 1380 of 1978 were adjusted by compromise and both the suits were dismissed as having been withdrawn. PW1 in his deposition has stated that he signed on Ex.B32 along with his advocate and others and it was filed in the Court. Ex.B2 is the certified copy of the compromise. At the later stage he deposed that the suit was compromised as it was dismissed. DW1 has deposed that O.S.1380/ 78 ended in compromise. DW1 and Sharbati Bai signed on the compromise memo Ex.B2. The compromise was .recorded in the Court. He again deposed that the suit was dismissed and no document was executed in compromise after Ex.B2. Thus it is significant to notice that both the parties had never mentioned about the decree having been passed in O.S. 1380/78 in terms of compromise. Admittedly no decree has been filed into the Court. Both the parties therefore proceeded in the trial Court on the premise that no decree in terms of compromise was passed in O.S.1380/78 but the suit was dismissed in view of the compromise. The trial Court also in its judgment at para 32 has rightly stated that "admittedly the said compromise was not recorded by the Court and that there was no decree passed in the suit pursuant to the terms of the said compromise."

Learned Counsel for the appellants has not pointed out to me any trace of evidence to arrive at any contrary finding that the decree was in fact passed by the Court incorporating the compromise. The petitioner also does not come forward with any positive case about the existence of a decree passed in terms of the compromise. No suspicion is thrown on the finding given by the Court below and that there was any decree. It is also not his case that by mistake or over-sight the decree has not been filed before the Court. The legitimate occasion for the application under clause (b), as laid down by the Supreme Court in Arjan Singh v. Kartar Singh - (supra), is when on examining evidence as it stands some inherent lacuna or defect becomes apparent. I do not find any such lacuna in the evidence and this Court is not disabled to pronounce the judgment on the material before it. On the other hand the averments made in the counter-affidavit reveals that a fabricated decree was brought into existence, which attempt came to light at the instance of the respondent in ''an enquiry by the Chief Judge, City Civil Court, Hyderabad, and ultimately the mischief was set right by way of an amendment of the alleged decree dated 16-2-94 passed in I.A.32/93 in O.S. 1380/78 by the III Asst. Judge, City Civil Court, Hyderabad. The order in I.A.32/93 was passed after notice, to the parties and it has become final. The amended decree clearly shows that the suit was dismissed as withdrawn but not in terms of compromise, hi view of the foregoing, I am of the view that no decree was passed in O.S.No.1380/78 in term of compromise and that the suit was only dismissed as withdrawn.

I am also of the view, for the reasons stated above, that the petition, CMP No.3606/98, is highly belated. The petition is therefore dismissed. The compromise is therefore inadmissible in evidence as it is unregistered.

Coming to the next objection with regard to the enforceability of the compromise on the ground that the compromise memo was not properly stamped it is contended by the learned Counsel for the respondents that u/s 2(14) of the Indian Stamp Act (for short ''Stamp Act''), if any instrument by which any right or liability is created, is not duly stamped such an instrument is not admissible for any purpose, u/s 35 of the Stamp Act. Ex.B2, being unstamped, is therefore inadmissible in evidence for any purpose.

Sri M.R.K. Chowdary, learned senior Counsel for the appellants however submits that as the instrument has been admitted in evidence, it cannot be called in question at this stage. It was further submitted that even if the compromise memo was not properly stamped, it is admissible for collateral purpose, the same can be looked into and hence the objection is not valid.

It is not in dispute that the compromise memo falls under the definition of ''instrument'' in clause (14) of Section 14 of the Stamp Act and in view of Section 35 of the Stamp Act, it is not admissible in evidence for any purpose nor can be acted upon unless it is duly stamped. Section 36 of the Stamp Act reads that where an instrument lias been admitted in evidence without being objected to, such admission shall not, except as provided in Section 61, be questioned at any stage of the suit. Section 35 is clear that an instrument which is not duly stamped could not be admitted in evidence for any purpose, in contra distinction to Section 17(1)(b) of the Registration Act where we do not find the words ''for any purpose''. The mention of the above words therefore is significant and it should be held, giving the normal and full meaning for the words, that an instrument which is not duly stamped is not admissible for any purpose. Where an instrument which was not registered may be admissible in evidence for collateral purpose, whereas an instrument which was not duly stamped on the other hand cannot be looked into for any purpose. Sir John Beaumont in AIR 1946 51 (Privy Council) observed that

"A document admitted in proof of some collateral matter is admitted in evidence for that purpose, and the statute enacts that it shall not be admitted in evidence for any purpose. Their Lordships see no reason why the words "for any purpose" in the Indian Act of 1879 should not be given their natural meaning and effect. Such words may well have been inserted by the Legislature in order to get rid of the difficulties surrounding the question of what amounted to a collateral purpose"

It is true that the instrument having been admitted in evidence without objection, it cannot be called in question at this stage as laid down by Section 36 of the Stamp Act. But law is well settled that Section 36 docs not apply to secondary evidence. Ex.B2 is the certified copy of the compromise memo that was filed in the Court and not the original. Section 33 and 35 speak of an instrument being filed or was brought before the Court. Section 33 enables the Court to impound an instrument produced before the Court which was chargeable with duty if it appears that such instrument was not duly stamped. As per sub-section (2), for the above purpose, it is the duty of the Court to examine and ascertain whether the instrument was duly stamped with a stamp of the value and description required by the law when such instrument was executed. In view of the above provisions, if a copy was filed, but not the original, do Sections 33 - 36 come into play. The Supreme Court in AIR 1971 1070 (SC) , laid down that the definition of instrument u/s 2(14) of the Stamp Act does not cover copy of the document for the purpose of Stamp Act and that Sections 35 and 36 are not concerned with the copy of the document. Section 36 does not apply to secondary evidence adduced in proof of the contents of the document unstamped or insufficiently stamped. Learned Judge observed that -

"13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person liaving by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence whether by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. ''Instrument'' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered, Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."

I am therefore of the view that the compromise is inadmissible as it is not duly stamped. Hence, the objections raised by the learned Counsel for the respondent as to the enforccability of Ex.B2 should be sustained.

Learned Counsel for the appellants, lastly advanced an argument that the compromise was in the nature of family settlement among the members of the ''family and hence it was not compulsorily registrable. It should be noticed that there is no pleading or issue about the alleged family settlement. The written statement filed by the defendants also does not contain even a whisper about the family settlement. In fact, it is the specific case of the defendants that the suits were dismissed in view of the compromise. Ex.B2 was filed under Order 22(3) read with Section 151 CPC and it also refers to the compromise. No arguments were also advanced either in the trial Court or by the learned Counsel before this Court about the family settlement. No ground is raised, even in the memo of grounds regarding family settlement. It is true that as held by the Supreme Court in Kale and Others Vs. Deputy Director of Consolidation and Others, , that the family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. The Supreme Court further observed that

"..... a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.''''

This position of law is well settled as laid down in Ram Charan Das Vs. Girjanandini Devi and Others, , which was followed in Luxmi Narain Kapoor Vs. Radhey Mohan Kapoor and Others, . All the judgments cited by the learned Counsel for the appellants on this point need not be discussed which only reiterate the above position of law. A scrutiny of Ex.B2 reveals that the parties having accepted the advice of elders compromised as per the term of the compromise on the date when Ex.B2 was executed. This Ex.B2 was not the record of past compromise. The terms of the compromise were reduced into writing in Ex.B2. It cannot, therefore, be called a document prepared after the family arrangement had already been made. The document, therefore, requires registration. This objection of the learned Counsel for the respondents is devoid of force, either. The finding of the learned Judge on this aspect is confirmed.

In view of the above, the compromise does not bind the respondents as it is not enforceable and could not be looked into for any purpose. The point is accordingly answered in favour of the respondents-defendants.

In the result, in view of the finding given by me on points 1 and 2, the appellants succeed. The appeal is, therefore, allowed. The suit is dismissed with costs.