1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

(Judgment Delivered on 01/03/2023)

FA No. 520 of 2018

Mishrilal S/o S/o Lunkaran Bafna Aged About 62 Years R/o Ganj Line,

In Front Of Mazar, Rajnandgaon, District Rajnandgaon,

Chhattisgarh. ..............Plaintiff

---- Appellant

Versus

1.Mohanlal S/o Lunkaran Bafna Aged About 54 Years Adopted S/o

Heeralal Bafna R/o Gataparkala, Post Gataparakala, Tahsil Khairagarh,

District Rajnandgaon, Chhattisgarh. ...........Defendants

2.Deleted (Lunkaran) As Per Honble Court Order Dated 14-01-2022

3.Rajendra S/o Lunkaran Bafna Aged About 43 Years R/o Kailash Nagar,

District Rajnandgaon, Chhattisgarh

4.Bhurmal S/o Lunkaran Bafna Aged About 47 Years R/o Vasnik Bhawan,

Bharka Para, Behind Ambedkar Murty, District Rajnandgaon,

Chhattisgarh

5.Dhyanchand S/o Lunkaran Bafna Aged About 46 Years R/o

Gataparkala, Post Gataparkala Tahsil Khairagarh, District Rajnandgaon,

Chhattisgarh

6.Smt. Ushma Devi W/o Late Indarchand Bafna Aged About 45 Years R/o

Ganj Line In Front Of Mazar, Rajnandgaon, District Rajnandgaon,

Chhattisgarh

7.Sonu S/o Late Indarchand Bafna Aged About 10 Years Through His

Natural Guardian Mother Namely Smt. Ushma Devi, W/o Late

Indarchand Bafna, Aged About 45 Years. R/o Ganj Line In Front Of

Mazar, Rajnandgaon, District Rajnandgaon, Chhattisgarh

---- Respondents

For Appellant :Shri Manoj Paranjpe, Advocate

For Respondents Nos. 1, 2 & 4 to 6:Shri Vinod Kumar Sharma

Advocate

Hon'ble Shri Justice Goutam Bhaduri

& Hon’ble Shri Justice NK Chandravanshi

CAV JUDGMENT

Per Goutam Bhaduri, J

Heard.

1.This appeal is directed against the judgment and decree dated

28/07/2018 passed by the Additional District Judge (FTC),

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Rajnandgaon, District Rajnandgaon (C.G.) in Civil Suit No.10-A/2010

whereby the suit preferred by the plaintiff was dismissed.

2.The admitted facts are that:-

the plaintiff and defendants are related to each other. The

defendant No.2 Lunkaran (since deceased) Son of Amolak

Chand Bafna was the father of plaintiff, whereas Mohanlal

(Defendant No.1), Rajendra (Defendant No.3), Bhurmal

(Defendant No.4), Dhyanchand (Defendant No.5) are sons of

Lunkaran and Smt. Ushma Devi (Defendant No.6) is the

daughter-in-law of Lunkaran Bafna (the other son of Lunkaran)

and Sonu (Defendant No.7) is the son of Inderchand. The

genealogical tree is shown hereunder:-

Wife

Soni Devi (died)

(plaintiff)

Mishrilal

Heeralal (died)

¼Defendant No.-2½

Lunkaran

(Defendant No.-1)

Mohan

(Defendant No.-3)

Rajendra

Amolak Chand Bafna

(Defendant No.-5)

Dhyanchand

(Defendant No.-4)

Bhurmal

Indarchand(died)

Soni Devi Usha Devi

(Adopted Son)

Mohanlal

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the plaintiff filed a suit claiming declaration that he is the co-

owner of suit property valued @ Rs.29 Lakhs and further

declaration was prayed for that a decree dated 26/08/2007

obtained in Civil Suit No.8-A/2007 in between Mohanlal and

Lunkaran before Lok Adalat is not binding on plaintiff and

would not affect the right of brothers and the plaintiff and

permanent injunction was claimed for;

the plaintiff averred that his grandfather Amolak Chand Bafna

came from Jodhpur (Rajasthan) and started his business at

Gatapar Kala in name of Amolak Chand Heera Lal. In the year

1971 late Amolak Chand purchased the suit house in name of

Heera Lal and Lunkaran from the joint income of the family

business. It was further stated that Amolak Chand had two sons

namely Heeralal Bafna and Lunkaran and Heeralal did not have

any child. Lunkaran had 5 sons out of them Inderchand Bafna

has died whose wife and son were made parties;

the plaintiff further claimed that since Heeralal Bafna had no

son, as such he kept Mohanlal (Defendant No.1) S/o Lunkaran

with him. The plaintiff further stated that in the year 1989 he

started living at Mudiyamohara and started his business. The

plaintiff further averred that the suit house which was at

Rajnandgaon a suggestion came for partition in between

Heeralal Bafna and Lunkaran in the year 2006, wherein the

house was valued at Rs.29 Lakhs;

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the plaintiff averred that it was agreed that the house would be

kept by Heeralal and Rs.1 Lakh of loan of late Inderchand Bafna

the other brother would be paid by Heeralal and the rest of the

amount would be paid which would be distributed amongst the

legal heirs of Lunkaran. He stated that though agreement was

executed but was never acted upon;

the plaintiff further stated that in the month of January, 2009 he

came to know that the suit house was recorded in name of

Mohanlal (Defendant No.1) and when he made an enquiry it was

revealed that in a Lok Adalat the suit filed between Mohanlal

and his father Lunkaran creating pressure on defendant No.2, the

father, a fake decree has been executed and by virtue of such

decree right of Defendant Nos.3 to 7 were eliminated;

the plaintiff stated that the suit property was purchased by

Amolak Chand the grandfather of plaintiff and the plaintiff along

with other defendants are co-parcener of the said property. It

was further pleaded that concealing all those facts, by valuing

the property to Rs.29 Lakhs, the decree was obtained by fraud,

which is not binding on the plaintiff and other defendants. The

plaintiff stated that if it is found that Mohanlal was adopted by

Heeralal then in such case Mohanlal would be entitled to the

share of Heeralal and the other defendants would be entitled to

claim half of the share of the suit house. The prayer was made

that Defendant Nos.1 to 7 are the co-owners of the suit property

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and the decree obtained from the Court of II Civil Judge Class-I

on 26/08/2007 before Lok Adalat would not be binding. The

prayer was also made that Mohanlal may be restrained to

interfere with the peaceful possession of the property of

Defendant Nos.3 to 7 and also to restrain him to take steps for

ejectment;

Mohanlal (Defendant No.1), who was claimed to be adopted son

of Heeralal denied the plaint allegation and stated that he is the

adopted son of Heeralal. It was stated that since Heeralal did not

have any son, as such on 28/06/1974 a declaration was made to

show that he is the adopted son and after death of Heeralal he is

entitled to the share to the property. He further stated that he is in

possession of the suit property and further stated that the suit

property was never purchased by Amolak Chand from the

income of the firm and the house in question was purchased by

Heeralal and Lunkaran from Smt. Itchru Bai by registered sale

deed on 25/09/1971;

it was further stated that in the year 1991 by virtue of mutual

partition the property came into exclusive share of Heeralal and

after death of Heeralal, Mohanlal became absolute owner

having inherited the property. It was further stated that the said

facts were never objected by the father of plaintiff namely

Lunkaran (defendant No.2) at any point of time and in Civil Suit

No.8 A/2007 the father Lunkaran (defendant No.2) affirmed the

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oral partition and consequently a compromise was arrived at and

on the basis of that a decree was drawn in the Lok Adalat, which

is binding on all the legal heirs of Lunkaran i.e. the plaintiffs and

the defendants. It was further stated that after that decree, the

entire possession of the suit house was given to the defendant

No.1 Mohanlal by Lunkaran;

Mohanlal (Defendant No.1) further stated that as per the terms of

arrangement/agreement the defendant has discharged bank loan

of Rs.7 Lakhs and paid an amount of Rs.7 Lakhs 10/06/2007 and

Rs.7 Lakhs on 10/12/2007 i.e. total Rs.14 Lakhs was paid to

Defendant No.2 and therefore, the said family arrangement

would be binding on all the parties. Mohanlal (Defendant No.1)

further stated that defendant Nos. 3 to 7 did not have any right in

respect of the said property and prayed for dismissal of suit;

Lunkaran (Defendant No.2) supported the case of his son

Mohanlal. It was stated that the property was purchased by

Lunkaran and Heeralal from their self earning and because of the

fact that Heeralal did not have any issue, he adopted Mohanlal as

his son. Lunkaran, the father, further stated that a partition was

effected in between Mohanlal and Heeralal and the entire suit

property fell into the share of Heeralal. He further averred that

Heeralal died on 31/03/2003 and his wife also died on

13/02/2003, therefore, over the property no right exist that of

other son and daughters;

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he further stated that possession of the property was handed over

to Mohanlal and he has received an amount of Rs.20,000/-. The

defendant No.2 also averred that after death of Heeralal, in 2006

an agreement was drawn before the Panch and it was admitted

by the defendant Mohanlal that the bank loan of Rs.7 Lakhs and

payment of Rs.14 Lakh was made. He stated that the said

agreement was binding upon the parties and this cannot be

challenged;

the other sons i.e. Rajendra (Defendant No.3), Dhyanchand

(Defendant No.5) and the legal heirs of Inderchand Bafna i.e.

Smt. Ushma Devi (Defendant No. 6) & minor Sonu (Defendant

No.7) supported the case of Defendant Mohanlal and stated that

the suit property was purchased by Heeralal and Mohanlal from

their self earning and therefore, Lunkaran do not have any right

to claim share of it. Bhurmal (Defendant No.4) admitted the

plaint averments and claimed his part of share over the property,

however, no counter claim was filed; and

on the basis of the pleadings, learned trial Court framed 5 issues

and the primary issues were issue no. 1 whether the property was

a joint property of plaintiff and defendants. The Court gave a

finding in negative and with respect to the finding of obtaining a

decree in Civil Suit No.8A/2007 on 26/08/2007, the Court gave

a finding that the plaintiff has failed to prove that the decree was

obtained on the basis of fraud and eventually dismissed the suit.

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Hence this appeal by the plaintiff.

3.Learned counsel for the appellant would submit that:-

according to the evidence the property was purchased by

Amolak Chand from the earning of the firm vide Ex. P/3 in the

year 1971. Referring to the alleged Iqrarnama (Ex. D/28) he

would submit that the contents of it would go to show that it

was not exclusive property of Heeralal and Lunkaran;

the suit was valued at Rs.29 Lakhs and a loan of Rs.1 Lakh

was to be paid meaning thereby Rs.28 Lakhs was for divide in

between Heeralal and Lunkaran but such

agreement/arrangement could not be acted upon. It is further

submitted that according to the defence, if the mutual partition

was effected in the year 1991 and property fell into share of

Heeralal then what was the necessity to file the suit to claim

the ownership;

if Mohanlal was adoptive son there was no further necessity for

such suit. Attacking the adoption deed dated 28/06/1974, he

would submit that on that date of adoption deed Mohanlal was

aged about 18-19 years. Referring to the statement of

Mohanlal (DW-2) at para 56 he stated that it is admitted that on

the date of registration, his age was 18-19 years. Referring to

Section 10 of the Hindu Adoption and Maintenance Act, 1956

(hereinafter referred to as the Act, 1956) Section 10 (iv), it is

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submitted that in order to create a valid adoption, the adoptive

person should not be more than 15 years unless custom

permits;

in the instant case, the custom has not been stated or proved by

the defendant. Consequently, by mere registration under

Section 16 of the Act, 1956, the adoption cannot be accepted

unless it is proved. So he would submit that only mere by

registration it will not cure the defect. Learned counsel further

placed his reliance in the case of M. Vanaja Vs. M. Sarla Devi

(Dead) {(2020) 5 SCC 307} and would submit that adoption

cannot be said to be valid unless the consent of the wife before

a male Hindu adopts a child and proof of the ceremony of

actual giving and taking in adoption are proved;

when the property according to Ex. D/28 which is of the year

2006 purport to divide the property which is admittedly more

than 100 Rs. of value and if having not been registered it would

hit by Section 17 of the Indian Registration Act. He further

stated that no whisper has been made in the said document Ex.

D/28 that mutual partition has taken place;

if the property was owned by Heeralal and Lunkaran and the

partition was effected in the year 1991 why the signature of

Mishrilal was obtained in such document and it only goes to

show that no partition have ever taken place between Heeralal

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and Lunkaran. It is further stated that original of Ex. D/28 was

never produced. The learned trial Court has wrongly allowed

the prayer to lead secondary evidence as the statement of DW-

2 had stated that he has received back the original,

consequently, D/28 cannot be acted upon which the trial Court

has failed to appreciate; and

further placed reliance in the case of J. Yashoda Vs. K. Shobha

Rani {(2007) 5 SCC 730} to submit that by mark of exhibit

when the original was not produced document itself would not

be admissible, then secondary evidence could not be allowed.

He would further submit that learned trial Court has failed to

appreciate those facts and thereby came to a wrong finding.

4.Per contra, learned counsel for the respondents/defendants would

submit that:-

as per the plaint allegations, the suit property was an

ancestral property but it has been denied to say that it was an

self acquired property of Heeralal and Lunkaran and not of

Amolak Chand;

he refers to Ex. P-3 which is equivalent to Ex. D/5 the sale

deed to submit that the property in question was purchased

by Heeralal and Lunkaran in their exclusive rights. Further

reference is made to the Khasra Panchshala vide Ex. P/9

from 2004 to 2007 and in respect of certain property and the

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house property Ex. P/10 to show the mutation orders were in

name of Heeralal and Lunkaran;

the reference is also made to Ex. D/15, D/16 & D/17 the

maintenance Khasra to submit that the subject land was

recorded in the name of Heeralal and Lunkaran;

the plaintiff himself admitted that the suit property was

purchased by Lunkaran and Heeralal but volunteered

subsequently and stated to be have purchased by Amolak

Chand. He refers to para 33 of PW-1 and would submit that

the plaintiff is not in possession of the suit house and

submits that he admitted the fact that during the lifetime of

Lunkaran his sons would not have any right in respect of the

property;

according to the plaintiff if the property was acquired by his

grandfather Amolak Chand then why his daughter was not

made a party as the plaintiff admitted that one Bidam Bai

was not made a party to the suit. With respect to the

adoption, referring to the statement of Lunkaran, referring

to question No.48 he would submit that the father has

categorically stated that Heeralal has taken Mohanlal on

adoption and Khemchand Jain (DW-3) stated that he had

executed a deed on 28/06/1974 as per instructions of

Heeralal, Soni Bai, Lunkaran and Ganga Bai and all had

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scribed his signature;

referring to the adoption deed, he would submit that the

deed categorically spells out that when Mohanlal was 8

years old according to the custom he was taken on adoption,

which cannot be disputed. Referring to Section 15 of the

Act, 1956 submission is made that no adoption which has

been validly made can be cancelled. Consequently, no

adoption which has been validly made can be cancelled by

the adoptive father or mother or any other person and

Section 16 of the Act, 1956 draws a presumption. He further

submits that the family arrangement arrived at in between

the parties and as per Ex. D/1 and D/2 Rs. 1 Lakh was paid

to discharge the loan of late Inderchand Bafna, one of the

son, and Rs.14 Lakhs was further paid according to the

evaluation, therefore, oral arrangement was arrived at

between the parties; and

as per Article 57 of the Limitation Act to challenge the

adoption limitation is 3 years so suit filed thereafter would

be barred by law of limitation. He would further submit that

the plaintiff having admitted the fact of adoption of the

family arrangement cannot go back to say that no adoption

was carried out. He placed his reliance in the case of {2002

(3) SCC 634}.

5.We have heard learned counsel for the parties and perused the

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record.

6.According to the plaint averments, the property was purchased

during the lifetime of Amolak Chand. As against it in the sale

deed, Ex. P/3 the purchasers are shown as Heeralal and Lunkaran,

both are sons of Amolak Chand, and they purchased the same in

their exclusive name. They purchased the property from Smt.

Itchru Bai. Ex. P/3 & Ex. D/5 which is sale deed is same. The

Nazul/maintenance Khasra (Ex. P/9 & P/10) show that the

property is recorded in the name of Heeralal and Lunkaran both.

Further the maintenance Khasra marked as D/15, D/16 & D/17

shows name of Heeralal and Lunkaran alone and name of Amolak

Chand is not shown.

7.Para 31 of the cross-examination of plaintiff Mishrilal (PW-1)

shows that he admits the fact that the suit property was purchased

by Lunkaran and Heeralal. Thereafter, subsequently volunteered

that it was purchased by Amolak Chand. While the suit was filed

Lunkaran, the father of plaintiff in whose name property was

purchased, was alive. So if on by sale deed and entry in revenue

records it shows the suit property was purchased and was mutated

in name of Heeralal & Lunkaran then no occasion arises to hold it

otherwise. Further Mishrilal (PW-1) at para 33 admits the fact

that he do not reside in the suit house i.e. Ganjpara. The plaintiff

further admitted the fact that during lifetime of Lunkaran he could

not have claimed any declaration. Therefore, there is no

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document on record to show that the suit property was purchased

from the earning of the firm by Amolak Chand, neither any

statement of account to support those facts have been placed nor

any other evidence is on record, except the oral statement.

Therefore, it would be proper to hold that the suit property was

purchased by Heeralal and Lunkaran jointly from their own

income. Consequently, it cannot be said that the property was an

ancestral property of the plaintiff.

8.The another point which falls for consideration as to whether

Mohanlal (Defendant No.1) was adoptive son of Heeralal Bafna.

In the description of the plaint Mohanlal has been shown as son of

Lunkaran and thereafter has been shown as adoptive son of

Heeralal. In the plaint averments it is stated that Amolak Chand

had two sons namely Heeralal and Lunkaran and Heeralal had no

son and Lunkaran had 5 sons out of which Inderchand has died.

Plaint averments further show that since Heeralal did not have any

son, therefore, he had kept Mohanlal (Defendant No.1) as his son.

At para 10 of the plaint, contradictory averments have been made

that if it is found that Mohanlal is adoptive son of Heeralal, the

suit property would be divided into half in between Mohanlal and

Lunkaran. Meaning thereby half of the share in suit property

would go to Monahlal (Defendant No.1) and half of the share

would fall to Lunkaran.

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9. The plaintiff Mishrilal is son of Lunkaran. Plaintiff in his

statement at para 33 admits the fact that Lunkaran is alive and

hence during his lifetime, the children would not have any right in

the suit property. Thereby the plaintiff was in know of the fact

that the right which is conferred to him and would lead to show

that on the date of filing of the suit, the plaintiff was in know of

the fact that what right would accrue to him. Apart from this,

Mohanlal (Defendant No.1) stated that he was adopted by

Heeralal. The plaint averments show that since Heeralal did not

have any son, as such Mohanlal was kept with him as a son.

Mishrilal (PW-1) at para 31 further admitted that he was not in

know of the fact that whether Heeralal had adopted Mohanlal and

simultaneously shows his inability about any Godnama. From the

statement of the family members, it would be difficult to draw an

inference that family member would be unaware of the fact about

adoption in the family. So prima facie the muffled statement of

plaintiff goes to show that he was aware of fact of adoption of

Mohan Lal by his uncle Heeralal. It would also be difficult to

believe that one brother would not know about adoption in the

family. Therefore, the averments made by Plaintiff that his one

brother Monahlal was kept by his uncle would show that plaintiff

was in know of fact that Mohanlal was adopted by his uncle.

10. Further the father of Mohanlal i.e. Lunkaran, who was

arrayed as Defendant No.2 on a specific question No.48, when he

was asked as to how many sons he has, he stated that he has six

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sons and one had died and one son Mohanlal was adopted by

Heeralal. Khemchand Jain (DW-3), who drafted the adoption

deed had stated that he prepared the deed on direction of Heeralal,

Sonibai, Lunkaran and Gangabai and Godnama was prepared

which is marked as Ex. D/10. Perusal of Godnama (Ex. D/10)

shows that it was written that since Heeralal and Sonibai did not

have any son, as such in order to continue their family Mohanlal

was adopted on 26/01/1963. The deed purports that the request

was made by Heeralal & Soni Bai to Lunkaran and his wife

Gangabai to adopt their son, which was accepted by them and the

son was given to their lap. The deed further suggests that the

adoption was done as per Shwetamber Jain customs and rituals at

Gataparkala, Tehsil Khairagarh, when his age was 8 years and

after that he was being looked after and was brought up by them.

In the school register also it was stated that the name of father was

shown as Heeralal.

11. The adoption deed is registered. The Hindu Adoptions and

Maintenance Act, 1956 purports that no person shall be capable of

being taken in adoption and clause (iv) says that he or she should

not complete the age of fifteen years, unless there is a custom or

usage applicable to the parties which permits persons who have

completed the age of fifteen years being taken in adoption.

12. It has been contended by appellant that at the time of

registration of adoption deed, the age of Mohanlal was 18-19

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years. However, when the deed is examined, it records the fact

that on earlier point of time when Mohanlal was 8 years of age,

the adoption was made. The father of the appellant Lunkaran and

father of the boy who was given in adoption categorically deposed

that he had given his son Mohanlal to Heeralal on adoption.

Khemchand Jain (DW-3), who prepared the Godnama affirms the

fact of earlier adoption which was done was recorded by a deed of

adoption was got registered.

13. Perusal of the adoption deed show that it bears the signature

of Heeralal and his wife Soni Bai and the persons who have given

the children i.e. Lunkaran and his wife Ganga Bai were also

signatories to such deed. Lunkaran had stated that his brother

Heeralal died on 31/03/2003 and his wife also died on

13/02/2003. Section 7 of the Act, 1956 makes it clear that any

male Hindu who is of sound mind and is not a minor has the

capacity to take a son or daughter in adoption. Provided that if he

has a wife living, he shall not adopt except with the consent of his

wife. Section 11 (i) of the Act, 1956 makes it clear that if the

adoption is of a son, the adoptive father or mother by whom the

adoption is made must not have a Hindu son, living at the time of

adoption. It further says that the child to be adopted must be

actually given and taken in adoption by the parents or guardian

concerned or under their authority with intent to transfer the child

from the family of its birth and performance of datta homam shall

not be essential to the validity of adoption.

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14. The reading of adoption deed shows that both the adoptive

husband & wife namely Heeralal and Soni Bai and the likewise

persons who gave their child on adoption i.e. Lunkaran and Ganga

Bai consented to such adoption. It records that when the child

was of 8 years actual performance of giving and taking was

performed. Learned counsel for the appellant has relied on the

judgment rendered by the Supreme Court in the matter of M.

Vanaja Vs. M. Sarla Devi (Dead) {(2020) 5 SCC 307} wherein

the adoptive mother stated that she had never adopted and apart

from the fact the admission of proof of ceremony of giving and

taking in adoption was not proved. Whereas in the instant case

the Ex. D/10 adoption deed shows that original parents consented

to such adoption.

15. Taking into the contents of Ex. D/10 which records fact of

performance of ceremony, when is read along with the averments

of plaint, wherein plaintiff has stated that Mohanlal (Defendant

No.1) was kept as a son along with evidence that Heeralal did not

have child and para 35 when suggestion was given he admits that

adoptive son of Heeralal is Mohanlal would lead to establish that

valid adoption was done and this Court cannot sit as an appellate

authority over the evidence of the adoptive parents and the parents

of the child who gave the child in adoption to say no adoption had

ever taken place.

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16. Section 15 of the Act, 1956 also puts a rider that no

adoption which has been validly made can be cancelled by the

adoptive father or mother or any other person, nor can be adopted

child renounce his or her status as such and return to the family of

his or her birth. Likewise this Court after evaluating the existing

evidence before it has no hesitation to hold that the adoption of

Mohanlal by Heeralal was validly made and the same cannot be

put into question.

17. Another submission of the appellant is that the arrangement

entered in between Lunkaran and Heeralal, the father & uncle

which is marked as Ex. D/28 would not be admissible in evidence

as it do not record a past transaction. It is not in doubt that a

writing which merely recites that there has in time past been a

partition, is not a declaration of will, but a mere statement of fact,

and it does not require registration. The Supreme Court in the

matter of Roshan Singh and others Vs. Zile Singh and others

{(2018) 14 SCC 814, decided on February 24, 1988} observed

that a past transaction do not require registration the Court at para

9 & 10 has held thus:-

9. It is well settled that while an instrument of partition

which operates or is intended to operate as a declared

volition constituting or severing ownership and causes a

change of legal relation to the property divided amongst the

parties to it, requires registration under Section 17 (1) (b) of

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the Act, a writing which merely recites that there has in time

past been a partition, is not a declaration of will, but a mere

statement of fact, and it does not require registration. The

essence of the matter is whether the deed is a part of the

partition transaction or contains merely an incidental recital

of a previously completed transaction. The use of the past

tense does not necessarily indicate that it is merely a recital

of a past transaction. It is equally well settled that a mere list

of properties allotted at a partition is not an instrument of

partition and does not require registration. Section 17(1)(b)

lays down that a document for which registration is

compulsory should, by its own force, operate or purport to

operate to create or declare some right in immovable

property. Therefore, a mere recital of what has already taken

place cannot be held to declare any right and there would be

no necessity of registering such a document. Two

propositions must therefore flow: (1) A partition may be

effected orally; but if it is subsequently reduced into a form

of a document and that document purports by itself to effect

a division and embodies all the terms of bargain, it will be

necessary to register it. If it be not registered, Section 49 of

the Stamp Act will prevent its being admitted in evidence.

Secondary evidence of the factum of partition will not be

admissible by reason of Section 91 of the Evidence Act,

1872. (2) Partition lists which are mere records of a

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previously completed partition between the parties, will be

admitted in evidence even though they are unregistered, to

prove the fact of partition: See Mulla's Registration Act, 8th

edn., pp. 54-57.

10. The tests for determining whether a document is an

instrument of partition or a mere list of properties, have

been laid down in a long catena of decisions of the Privy

Council, this Court and the High Courts. The question was

dealt with by Vivian Bose, J. in Narayan Sakharam Patil v.

Coop. Central Bank, . Speaking for himself and Puranik, J.

the learned Judge relied upon the decisions of the Privy

Council in Bageshwar Charan Singh v. Jagarnath

Kuari(1931-32 59 IA 130) and Subramonian v.

Lutchman{(1922-23) 50 IA 77} and expressed as follows

(Narayan Sakharam case, SCC OnLine MP para 10)

604. Speaking for himself and Sir Gilbert Stone, CJ. the learned

Judge relied upon the decisions of the Privy Council in

Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59 IA

130 and Subramanian v. Lutchman LR (1923) 15 IA 77 and

expressed as follows:

"It can be accepted at once that mere lists of property do not

form an instrument of partition and so would not require

registration, but what we have to determine here is whether

these documents are mere lists or in themselves purport to

'create, declare, assign, limit of extinguish ..... any right, title

or interest' in the property which is admittedly over Rs. 100

in value. The question is whether these lists merely contain

the recital of past events or in themselves embody the

expression of will necessary to effect the change in the legal

relation contemplated."

Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in

22

Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR

(1942) Nag. 73 reiterated the same principle. See also: order cases

in Mulla's Registration Act at pp. 56-57.

18. The aforesaid proposition is not in dispute. Ex. D/28 which

contains the partition of the property in between Lunkaran &

Heeralal was executed on 10/12/2006. In our opinion/view the

said issue at this stage may not be required to be deliberated upon

as the filing of the suit itself appears to be defective. When the

suit was filed Lunkaran, the father of the plaintiff, was alive. He

died in the year 2022. When the plaintiff claimed that the

property was ancestral one, the sisters were not made a party,

which would be evident from para 34 of the statement of Mishrilal

(PW-1) wherein name of Bimla Bai, Mohani Bai and Maina Bai

being the sisters have been admitted. At para 33 of the cross-

examination, the plaintiff further admitted that he is not in

possession of the suit property.

19. The plaint would show that suit was filed only for seeking

declaration. The first declaration was sought for that defendant

Nos. 1 to 7 are co-owners of the suit property; second declaration

is sought for that the decree dated 26/08/2007 obtained in Civil

Suit No.8-A/2007 in between Mohanlal and Lunkaran before Lok

Adalat is out come of fraud; further declaration was sought for

that the defendant No.1 be restrained to interfere in the possession

of plaintiff and defendants No.3 to 7.

20. During the pendency of the appeal, Lunkaran, the father

23

died. Plaintiff though claimed himself to be the co-owner had not

claimed for other relief. Therefore, whether the suit would be

maintainable when plaintiff has only asked for a bare declaration

though he was in a position to ask for other relief? As per the

evidence, the plaintiff is not in possession of the suit property. As

per Section 34 of the Specific Relief Act when the plaintiff is out

of possession of the suit property seeks to have his title declared,

as such that mere declaration will not lie without the relief of

possession, the said proposition is laid down in the case of Ram

Saran v. Ganga Devi {AIR 1972 SC 2685} and the Supreme

Court further held in the case of Executive Officer, Arulmigu

Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran

and others {(2017) 3 SCC 702} that when the plaintiff is not in

possession and having only sought for declaratory reliefs, the suit

was not maintainable.

21. The Supreme Court in the case of Venkataraja and others

Vs. Vidyane Doureradiaperumal (Dead) through LRs and

others reported in (2014) 14 SCC 502, has reiterated the law laid

down in the case of Muni Lal Vs. Oriental Fire and General

Insurance Co. Ltd. Reported in (1996) 1 SCC 90 and Shakuntla

Devi Vs. Kamla reported in (2005) 5 SCC 390 and has held in

para 24, 25 and 26 as under :-

“24. A mere declaratory decree remains non-executable in most

cases generally. However, there is no prohibition upon a party from

24

seeking an amendment in the plaint to include the unsought relief,

provided that it is saved by limitation. However, it is obligatory on

the part of the defendants to raise the issue at the earliest. (Vide

Parkash Chand Khurana v. Harnam Singh [(1973) 2 SCC 484] and

State of M.P. v. Mangilal Sharma [(1998) 2 SCC 510)

25. In Muni Lal v. Oriental Fire & General Insurance Co. Ltd.

[(1996) 1 SCC 90] this Court dealt with declaratory decree, and

observed that : (SCC p. 93, para 4)

“4. … mere declaration without consequential relief does not

provide the needed relief in the suit; it would be for the plaintiff

to seek both the reliefs. The omission thereof mandates the court

to refuse the grant of declaratory relief.”

26. In Shakuntla Devi v. Kamla [(2005) 5 SCC 390] , this Court

while dealing with the issue held : (SCC p. 399, para 21)

“21. … a declaratory decree simpliciter does not attain finality if

it has to be used for obtaining any future decree like possession.

In such cases, if suit for possession based on an earlier

declaratory decree is filed, it is open to the defendant to establish

that the declaratory decree on which the suit is based is not a

lawful decree.”

22.Likewise, in the case of Executive Officer, Arulmigu Chokkanatha

Swami Koil Trust, Virudhunagar (supra), the Supreme Court relying on the

case of Ram Saran Vs. Ganga Devi reported in (1973) 2 SCC 60, has held

in para 34 as under :-

25

“34. In the present case, the plaintiff having been found not to

be in possession and having only sought for declaratory

reliefs, the suit was clearly not maintainable and has rightly

been dismissed by the trial court. In this context the reference

is made to the judgment of this Court in Ram Saran v.

Ganga Devi [Ram Saran v. Ganga Devi, (1973) 2 SCC 60],

wherein in paras 1 and 4 following was stated: (SCC pp. 60-

61)

“1. This is a plaintiffs' appeal by special leave. Ram Saran

and Raghubir Saran, the plaintiffs are brothers. They jointly

owned suit property with Chhabili Kuer, widow of Lalita

Prasad. After the death of Chhabili Kuer on 8-2-1971,

Ganga Devi, the defendant in the suit came forward as the

legal representative of Chhabili Kuer and got the mutation

effected in her name in the place of the deceased Chhabili

Kuer. In 1958, the plaintiffs brought this suit for a

declaration that they are the sole owners of the suit

properties. They did not claim possession of either the

entire or even any portion of the suit properties.

4. We are in agreement with the High Court that the suit is

hit by Section 42 of the Specific Relief Act. As found by

the fact-finding courts, Ganga Devi is in possession of

some of the suit properties. The plaintiffs have not sought

possession of those properties. They merely claimed a

declaration that they are the owners of the suit properties.

26

Hence the suit is not maintainable.”

23. In view of the aforesaid principles of law, the suit itself per

se, considering the relief claimed and the pleading, was not

tenable. Accordingly, the plaintiff is not entitled to any relief.

Therefore, the judgment and decree passed by the Court below is

affirmed.

24. Accordingly, the appeal is dismissed.

25. A decree be drawn accordingly.

SD/- SD/-/-

(Goutam Bhaduri) (NK Chandravanshi)

Judge Judge

Ashu