TMI Blog2019 (5) TMI 1991X X X X Extracts X X X X X X X X Extracts X X X X ..... elow, which were on appreciation of evidence on record. The High Court has exceeded in its jurisdiction while exercising the powers under Section 100 of the CPC. From the entire evidence on record, it appears that even the Sale Deed (Exhibit P1) was not acted upon. Between 1964 to 1971, even the name of Siddalingappa was not mutated/recorded in the revenue record. Both the Courts below considered in detail the aforesaid aspect which has been upset by the High Court. It is required to be noted that even in the cross-examination the original plaintiff was not sure about the sale consideration received from Siddalingappa as a remuneration in view of the registered Sale Deed dated 22.06.1964 (Exhibit P1). Even otherwise, even according to the plaintiff and even considering the material on record, as the suit land was a joint family property and/or was in the name of Nanjappa, all the brothers had an equal share and therefore the same could not have been sold by Nanjappa, plaintiff and other two brothers only and without consent of other brothers including Krishnappa unless the property was partitioned. It is required to be noted that the deed dated 23.04.1971, under which the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants herein-original defendants (hereinafter referred to as the original defendants ) from interfering with his peaceful possession and enjoyment of the suit schedule property. It was the case on behalf of the original plaintiff that he has become an owner of the suit property having purchased the same under a registered Sale Deed and therefore the defendants have no right whatsoever to interfere with his peaceful possession and enjoyment of the suit schedule property. The suit was resisted by the defendants by filing the written statement. It was the case on behalf of the defendants that husband of defendant no.1 and father of defendant nos. 2 and 3 i.e. A. N. Krishnappa (deceased), purchased the suit property on 12.12.1948 under a registered Sale Deed for a consideration of Rs.400/. That the suit property was blended into the joint family properties by him. That thereafter the partition between the sons of deceased Nanjappa was recorded on 23.04.1971 and the suit property fell into the share of the deceased A. N. Krishnappa. It was also the case on behalf of the defendants that they are enjoying the possession of the suit property. It was also the case on behalf of the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore Exhibit D4 is admissible in evidence. 3. Feeling aggrieved and dissatisfied with the Judgment and Decree passed by the learned Trial Court confirmed by the First Appellate Court, the original plaintiff filed a Regular Second Appeal No.1033 of 2001 before the High Court. The High Court framed only one substantial question of law which reads as under : Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23.4.1971 when Ex.D1 Partition deed Palupatti is alleged to have come into existence? 3.1 That by the impugned Judgment and Order, the High Court has allowed the said appeal and has interfered with the findings of facts recorded by both the Courts below and consequently has decreed the suit by holding that Exhibit D4 required registration and therefore the same was inadmissible in evidence. The High Court further observed and held that both the Courts below are not justified in holding that document Exhibit P1 was only a nominal sale deed and that the same was not acted upon. 3.2 Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against the original plaintiff who was party to such family settlement. It is submitted that therefore, the High Court has committed a grave error of law in not giving effect to the Doctrine of Estoppel. 5.5 Relying upon the decision of this Court in the case of Subraya M.N. v. Vittala M.N. and Others (2016) 8 SCC 705, Ms. Kiran Suri, learned Senior Advocate appearing on behalf of the original defendants has vehemently submitted that as held by this Court in the aforesaid decision, when family arrangement/settlement is orally made, no registration is required and that would be admissible in evidence, however, when reduced in writing, registration is essential, without which it was not admissible in evidence. It is submitted that however it is further observed and held by this Court in the aforesaid decision that even without registration, written document of family arrangement/settlement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. It is submitted that it is further observed and held by this Court in the aforesaid decision that unregistered document of family arrangement can be used as corroborative piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the consideration for the sale Exhibit P1 was inadequate and therefore no title passed on. 5.10 It is submitted by Ms. Kiran Suri, learned Senior Advocate appearing on behalf of the appellants original defendants that as observed and held by this Court in the case of Kaliaperumal v. Rajagopal and Another (2009) 4 SCC 193 that though on registration of Sale Deed under the Registration Act, 1908, title will normally pass to the purchaser from the date of the execution of the Sale Deed, true test is the intention of the parties. It is submitted that it is held by this Court that the registration is prima facie proof of intention of transfer of property, but not a proof of operative transfer. It is submitted that it is further observed and held by this Court that where recitals are insufficient or ambiguous, circumstances and conduct of parties can be looked into, subject to provisions of Section 92 of the Evidence Act. 5.11 It is further submitted by Ms. Kiran Suri, learned Senior Advocate appearing on behalf of the original defendants that the High Court has committed a very serious error in setting aside the findings of facts recorded by both the Courts below that Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence and having found that there was a registered Sale Deed in favour of the original plaintiff, the High Court has rightly interfered with the findings recorded by both the Courts below as the said findings were perverse. 6.3 It is further submitted by learned Advocate appearing on behalf of the contesting respondents that as such, the High Court had framed the substantial question of law and thereafter had answered the substantial question of law framed and therefore the High Court has not exceeded in its jurisdiction permissible under the law, and more particularly, has exercised the Jurisdiction within the parameters of Section 100 of the CPC. 6.4 It is further submitted by Ms. K. V. Bharathi, learned Advocate appearing on behalf of the contesting respondents that as such, there was a registered Sale Deed in favour of the original plaintiff, on payment of the sale consideration and in fact the same was acted upon and the possession was handed over pursuant to and under the registered Sale Deed and, therefore, the High Court has rightly held that the original plaintiff has become the absolute owner pursuant to the registered Sale Deed dated 22.06.1964 (Exhibit P1). 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the contesting respondents that even otherwise and in view of the earlier Sale Deed dated 22.06.1964 (Exhibit P1), by which the suit property was sold by the plaintiff along with his two brothers and his father Nanjappa in favour of Siddalingappa, at the time of alleged partition dated 23.04.1971, the suit property was not available for partition. It is submitted that therefore, even otherwise, at the time of so-called partition on 23.04.1971, as the property was already sold, the same could not have been subjected to partition and therefore the Krishnappa could not have acquired any interest in the suit property pursuant to the alleged Partition Deed dated 23.04.1971. 6.10 Making above submissions it is prayed to dismiss the present appeal. 7. Heard learned Advocates appearing on behalf of the respective parties at length. 7.1 At the outset, it is required to be noted that by the impugned Judgment and Order, in a Second Appeal and in exercise of the powers under Section 100 of the CPC, the High Court has set aside the findings of facts recorded by both the Courts below. The learned Trial Court dismissed the suit and the same came to be confirmed by the learned Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise. 7.4 Considering the law laid down by this Court in the aforesaid decisions and even considering Section 100 of the CPC, the substantial question of law framed by the High Court in the present case, as such, cannot be said to be a substantial question of law at all. 8. Having gone through the findings recorded by the Trial Court as well as the First Appellate Court, it appears that both, the Trial Court as well as the First Appellate Court, gave cogent reasons on appreciation of evidence on record, more particularly, the Sale Deed dated 22.06.1964 (Exhibit P1), document dated 23.04.1971 (Exhibit D4) and subsequent Sale Deed dated 18.05.1973 (Exhibit P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Exhibit D4-Partition Deed dated 23.04.1971 purports to convey interest in the immovable property in favour of Krishnappa and that therefore the same was required to be registered and as such it was an unregistered document and therefore having regard to the provisions of the Registration Act, the same is not admissible in evidence and therefore the same cannot be looked into. 9.1 Now so far as the registered Sale Deed (Exhibit P1) is concerned, it is an admitted position that Krishnappa is not a signatory to the said Sale Deed. Therefore, as such, the said Sale Deed does not bind Krishnappa. Even in the cross-examination, the original plaintiff has admitted that Exhibit P1 was not signed by Krishnappa. He has also admitted that his other brothers Rangappa and Govindaiah also did not sign. From the entire evidence on record, it appears that the suit property was initially purchased by Krishnappa in the year 1948 and thereafter, due to some internal family problems with respect to said suit property, it was the Krishnappa who thrown the same property into the joint family property in the year 1952 and Krishnappa executed the Sale Deed in favour of his father Nanjappa stating tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding to him. In the aforesaid decision, it is observed and held by this Court that a person, in his capacity as a defendant, can raise any legitimate plea available to him under the law to defeat the suit of the plaintiff. In paragraph 21 this Court has observed and held as under : 21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (cross-examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tellies with the document dated 23.04.1971 (Exhibit D4). Execution of the document/ Partition Deed/ Palupatta dated 23.04.1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under: 13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere tec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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