In this case, the petitioner Shyam Prasad Narayan was the defendant number 1 and the appellant of the case. In this case, the matter was related to “mitakshra copracenory”. For which the Hindu undivided family took the partition between the father and his five sons, and the property was divided by the father of the sons. So, due to this many of the problems were arise out which are given as the following fact.
FACT OF THE CASE
In the supreme court, question arise in the case was that for the high court judgement legality and correctness of the decree which pass on 15th may 2006.
In the partition father Gopal ji and five son which are Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath gupta and Suresh Kumar and some part of the property were restrain in the hand of the father. And the plaintiff filed a suit against the defendant for that the agreement document between the defendant 1 and 2 on 30 Jan 1990, is invalid and for other reliefs. Because at the time of the partition Laxmi Prasad got share in the property and half of the portion of the RCC building which is situated at singtam bazar, wherein at present time shop of liquor is running and Shyam Prasad Narayan got the shoe shop which run on the rent by the owner Gouri Prasad and also allotted other partition in the property.
After the possession of the property, Laxmi Prasad with his brother Shyam Prasad executed an agreement on 30 Jan 1990 for exchanging the immovable property of the partition which the defendant no.2 has no right to exchange their share with the defendant no.1, because the property is the ancestral property and both has got their share. So, the agreement is not registered and it has not legal value.
The defendant no.1 filed the written statement that property is not an ancestral property, so the defendant says agreement between them is said to be invalid and further that defendant no1 said that the agreement effected on executed date. The defendant no.2 give the written statement that the contention with defendant no.1 is for the exchange of only the business of liquor and the shoe shop and deed to signed the document for exchanging the business.
Trial court issued an important question that the parties should show the evidence of the contention and it says that the property is to be an ancestral property so that plaintiffs of the defendant 2 has the right in such property.
The defendant no.1 says that the entire share of the property of Gopal ji was the self-acquired property and he also took the partition with the five sons on 1 march 1987. The settlement of the defendant no1 and 2 are for the business not for the building, so the sons and grandson of the defendant no2 have no right to challenge for the property of the said date agreement for the business and no exchange of the property contended by the plaintiffs. In such situation the appellant is protected under the section 53A of the transfer of property act 1882 by the registration of the agreement for the transfer of the property.
On the side of the respondent no 1 to 4 of the plaintiffs submitted the matter related for the settlement on 30 Jan, 1990, which the document simply clarified that it is for the transfer of immovable property. So the plaintiffs are the sons of the lineal descendent of the defendant no.2 and they were come under the coparcenary with the right of interest in the property, but the document is not to be registered therefore the defendant is to be save under the section 53A of the transfer of property act.
ISSUES OF THE CASE
- the allotted property in the partition is the coparcenary property?
- whether unregistered exchange of the immoveable property deed to have any right of the defendant?
- whether there is any right for defendant to take any benefits in performance under section 53A of the transfer of property act?
JUDGEMENT OF THE CASE
The supreme court held that in regard to the issue of the property which is inherited by a Hindu male from father, father’s father or father’s father’s father in the ancestral property. According to the mitakakshara law, it is an essential feature of the ancestral property that is sons, grandsons and great grandsons have an interest in the property, from at the time of birth, and the share in the ancestral property male were obtain the property, when they were coparcener.
In the case “C. Krishna Prasad v. CIT Bangalore, Krishna prasad was the appellant along with his father Krishna swami naidu and brother, C.Krishna kumar formed an Hindu undivided family up to 30 Oct 1958. The question which came out that whether on the partition of the joint family the Hindu unmarried male can be assessed the status of undivided family even no person beside in the family. It was held that the share which a coparcener obtains on the partition of the ancestral property as regards the male issue. It also take interest in the property by the birth in the family, it does not a matter whether the birth is on the time of partition or a subsequently born person.”
Another case is that the Yogendra and ors vs Leelamma n. & ors, “It was held that sole coparcener get the property in partition shall be his separate property, from the same shall revive only when a son is born to him it is one thing that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid”
Hence, therefore the property given to defendant on 1987 was the separate property than the plaintiff has the right in the defendant property by as the status of the coparcener.
The other issue is that for exchange contract between the defendant no. 1&2 in which the defendant 1 says it is only for the business but the 2 is show it for the building of the RCC were exchanged and the building value is above rupee 100. There is provision for the transfer or sale of immovable property under section 54 of the transfer of the property act, the exchange of the property is related to the sale of property, which clears that the value of property is above rupee of 100 so that the instrument to be registered.
“Under section 17(1) (b) of the registration act, it mandates that any document which has the effect of creating and taking away the right in respect of an immovable property must be registered and section 49 of the registration act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under section 17 of the registration act.”
According to section 17 of the Registration act and section 91 of the evidence act, it was held that the exchange cannot be prove by the defendant by the registered or oral means so it held the exchange is not performed.
Third issue for the benefits in this context is that “It was held that the defendant who intends to avail the benefit of the section 53A must plead that he has taken possession of the property in part performance of the contract”. Therefore, it is not open for the first defendant to claim the benefits available under section 53A of Transfer of property act.”
In this case, Shyam Prasad Narayan was the defendant no.1 /plaintiff who get his right of the partition property, which is exchange with his brother defendant no.2 because the instrument was unregistered according to section 17 (1)(b) of the registration act and other plaintiff son of the defendant no. 2 which is for the right of the plaintiff. Under his ancestral property of the defendant no.2 held the plaintiff have a right with the male issue as a coparcener. This case is fully based on transfer of the property act, registration act, the concept of the mitakshra law.
Author: Manish Kumar,
Delhi Metropolitan Education( Affiliated to GGSIPU) 2nd year (BALLB)