Family settlement operates as estopel = even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23.04.1971 and he also 30 admitted that 3 to 4 punchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of plaintiff that there was an oral partition on 23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 784 OF 2010
Thulasidhara & Another ..Appellants
Versus
Narayanappa & Others ..Respondents
J U D G M E N T
M.R. SHAH, J.

  1. Feeling aggrieved and dissatisfied with the impugned
    Judgment and Order passed by the High Court of Karnataka at
    Bengaluru dated 25.07.2007 passed in Regular Second Appeal
    No.1033 of 2001, by which, in exercise of powers under Section
    100 of the CPC, the High Court has allowed the said appeal
    preferred by the respondent herein­original plaintiff and has
    quashed and set aside the Judgment and Decree passed by both
    1
    the Courts below dismissing the suit, and consequently decreeing
    the suit, original defendants have preferred the present appeal.
  2. The facts leading to the present appeal in nutshell are
    as under :
    That the respondent herein­original plaintiff
    (hereinafter referred to as the ‘original plaintiff’) instituted the
    suit in the Court of Munsiff and JMFC at Gubbi (learned Civil
    Judge, Junior Division, Gubbi) being Original Suit No.141 of
    1984 praying for the Judgment and Decree in his favour to the
    effect that he be declared as the owner of the suit schedule
    property and also for permanent injunction restraining the
    appellants herein­original 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
    2
    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 defendants
    that no Sale Deed has been executed by the defendants in favour
    of the plaintiff and the alleged Sale Deed is fabricated by the
    plaintiff.
    2.1 That the learned Trial Court framed the following
    issues:
    “(i) Does the plaintiff prove his title to the suit
    schedule property?
    (ii) Whether the plaintiff proves his lawful
    possession of the suit schedule property on the
    date of suit?
    (iii) Does the plaintiff prove the interference by
    the defendants to his possession of the suit
    property?”
    3
    2.2 That both the parties led evidence, both, oral as well as
    documentary. That after considering the submissions made on
    behalf of the rival parties and on appreciation of evidence,
    learned Trial Court held that there was a partition between family
    on 23.4.1971 and for that the learned Trial Court observed and
    held that Exhibit D4(Partition Deed dated 23.04.1971) is
    admissible in evidence. The learned Trial Court also observed and
    held that the suit property was available at the time of partition.
    The learned Trial Court also observed and held that Exhibit P1
    (the Sale Deed relied upon by the original plaintiff) was only a
    nominal Sale Deed and not an out and out sale deed since
    Exhibit P1 was executed as security for loan and never intended
    to sell the suit property. The learned Trial Court also observed
    and held that the suit property was purchased by late
    Krishnappa for a sum of Rs.400/­ in 1948 and thereafter it is
    stated to have been sold at Rs.200/­ after 16 years i.e. in 1964,
    which is highly improbable. The learned Trial Court also gave a
    specific finding that there was a concealment of material facts in
    the suit, which shows mala fide intention of the plaintiff. The
    learned Trial Court also held that plaintiff, in collusion with PW2,
    has got executed a sham document in his favour. By holding so
    4
    and recording above findings, the learned Trial Court dismissed
    the suit.
    2.3 The First Appellate Court dismissed the appeal
    preferred by the original plaintiff and confirmed the Judgment
    and Decree passed by the learned Trial Court dismissing the suit.
    While dismissing the appeal, the learned First Appellate Court
    observed that Exhibit D4 cannot be said to be a Partition Deed
    and can be said to be only a list of properties partitioned and
    does not create or extinguish any right in the immovable property
    and therefore not a compulsorily registrable document and
    therefore 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?”
    5
    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 Court, original
    defendants have preferred the present appeal.
  4. Ms. Kiran Suri, learned Senior Advocate has appeared
    on behalf of the appellants­original defendants and Ms. K. V.
    Bharathi Upadhyaya, learned Advocate has appeared on behalf of
    the respondent­original plaintiff and wife and son of the original
    plaintiff (newly added respondents), who are permitted to be
    impleaded as respondents by this Court.
    6
  5. Ms. Kiran Suri, learned Senior Advocate appearing on
    behalf of the original defendants has vehemently submitted that
    the High Court has exceeded in its jurisdiction under Section 100
    of the CPC by interfering with the concurrent findings of facts
    recorded by both the Courts below.
    5.1 It is further submitted by Ms. Kiran Suri, learned
    Senior Advocate appearing on behalf of the original defendants
    that in fact substantial question of law framed by the High Court
    as such cannot be said to be a substantial question of law at all
    and the same can be said to be a question of fact. It is submitted
    that therefore the High Court has committed a grave error and/or
    has exceeded in its jurisdiction by entering into the question of
    fact and thereby by interfering with the concurrent findings of
    facts recorded by the Courts below.
    5.2 It is further submitted by Ms. Kiran Suri, learned
    Senior Advocate appearing on behalf of the original defendants
    that High Court has committed a serious error in holding that
    Exhibit D4 requires registration, whereas, both the courts below
    clearly recorded that Exhibit D4 does not require any
    registration.
    7
    5.3 It is further submitted by Ms. Kiran Suri, learned
    Senior Advocate appearing on behalf of the original defendants
    that High Court has committed a grave error in observing and
    holding that as Exhibit D4 was an unregistered document and
    therefore the same was not admissible in evidence.
    5.4 It is vehemently submitted by Ms. Kiran Suri, learned
    Senior Advocate appearing on behalf of the original defendants
    that assuming that Exhibit D4 requires registration and the same
    was unregistered, in that case also, the same document can be
    used and considered for collateral purpose. It is submitted that
    even otherwise and as held by this Court in the case of Kale and
    Others v. Deputy Director of Consolidation and Others (1976) 3
    SCC 119 even if the family settlement was not registered, it
    would operate as a complete estoppel 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
    8
    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 evidence for explaining the nature of
    settlement/arrangement arrived at between the parties, conduct
    of plaintiff members in receiving money from the defendant
    members of the family in lieu of relinquishing their interest in
    certain family properties. It is submitted that in the present case,
    document D4 dated 23.04.1971 was in fact acted upon by all the
    parties including the plaintiff and therefore assuming that
    9
    document D4 required registration, in that case also, the same
    can be used as corroborative evidence.
    5.6 It is submitted by Ms. Kiran Suri, learned Senior
    Advocate appearing on behalf of the original defendants that as
    such document D4 cannot be said to be a Partition Deed and it
    can be said to be a document containing list of properties allotted
    to parties and therefore the same was not required to be
    registered. It is submitted that, therefore, the High Court has
    committed a grave error in holding that as Exhibit D4 was an
    unregistered document, the same was inadmissible in evidence.
    In support of her above submissions, she has heavily relied upon
    the decisions of this Court in the case of Roshan Singh and
    Others v. Zile Singh and Others (2018) 14 SCC 814.
    5.7 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 serious error in holding that
    the suit property was not available for partition in the year 1971
    with the joint family in the year 1971. It is submitted that by
    holding so, the High Court has not at all considered the fact that
    10
    Exhibit P1, a Sale Deed relied upon by the plaintiff, was a
    nominal Sale Deed and everybody understood.
    5.8 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 grave error in interfering
    with the findings of the Courts below that Exhibit P1 exhibits
    only as a security and is not a document for sale.
    5.9 It is further submitted by Ms. Kiran Suri, learned
    Senior Advocate appearing on behalf of the original defendants
    that High Court has committed a grave error in interfering with
    the findings of facts recorded by both the courts below that
    Exhibit P1 was not acted upon. It is further submitted that both
    the Courts below clearly recorded in their respective findings that
    the possession remained with the defendants 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 appellants­original
    defendants that as observed and held by this Court in the case of
    Kaliaperumal v. Rajagopal and Another (2009) 4 SCC 193 that
    11
    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
    Exhibit P1 was a nominal Sale Deed. It is vehemently submitted
    by Ms. Kiran Suri that in the facts and circumstances of the
    case, the High Court has committed a grave error in giving much
    emphasis on Exhibit P1 being registered Sale Deed, without
    considering the surrounding circumstances and the intention of
    12
    the parties which are brought/borne out from the conduct of the
    parties.
    5.12 Now, so far as not praying to set aside the Sale Deed
    (Exhibit P1) by the defendants by filing a suit is concerned,
    relying upon the decision of this Court in the case of Vidhyadhar
    v. Manikrao and Another (1999) 3 SCC 573, it is vehemently
    submitted that in a suit filed by the plaintiff for a declaration to
    declare him an owner on the basis of the Sale Deed, the
    defendant who is a stranger to the Sale Deed can raise a plea
    that the Sale Deed was void, fictitious, collusive or not intended
    to be acted upon and/or not binding to him. It is submitted that
    as held by this Court in the aforesaid decision, defendant can
    raise any legitimate plea available to him under the law to defeat
    the suit of the plaintiff. It is submitted that therefore non­filing of
    the suit by the defendant to set aside the Sale Deed (Exhibit P1)
    and/or not specifically praying to quash and set aside the Sale
    Deed (Exhibit P1), would not defeat the case of the defendant and
    the same cannot go against the defendant.
    5.13 Making above submissions and relying upon the
    decisions of this Court, it is prayed to allow the present appeal
    13
    and quash and set aside the impugned Judgement and Order
    passed by the High Court and restoring the Judgement and
    Decree passed by the learned Trial Court dismissing the suit.
  6. Present appeal is vehemently opposed by Ms. K. V.
    Bharathi Upadhyaya, learned Advocate appearing on behalf of
    the newly added respondents (wife and son of the original
    plaintiff).
    6.1 It is vehemently submitted by Ms. K. V. Bharathi,
    learned Advocate appearing on behalf of the contesting
    respondents that in the facts and circumstances of the case, the
    High Court has rightly decreed the suit and has rightly held that
    the original plaintiff is entitled to the declaration that he had
    become the owner of the suit property under the registered Sale
    Deed.
    6.2 It is vehemently submitted by Ms. K. V. Bharathi,
    learned Advocate appearing on behalf of the contesting
    respondents that on appreciation of evidence 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
    14
    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).
    6.5 It is further submitted by Ms. K. V. Bharathi, learned
    Advocate appearing on behalf of the contesting respondents that
    15
    in fact by registered Sale Deed dated 22.06.1964 (Exhibit P1),
    which was also signed by the plaintiff along with two brothers
    and their father Nanjappa, the suit property in question, was sold
    in favour of Siddalingappa. Therefore, Siddalingappa became the
    absolute owner and thereafter the plaintiff purchased the suit
    property from the above Siddalingappa under registered Sale
    Deed dated 18.05.1973 (Exhibit P2). It is submitted therefore, the
    plaintiff became the absolute owner of the suit property under
    the registered Sale Deed dated 18.05.1973 (Exhibit P2).
    6.6 It is further submitted by learned Advocate appearing
    on behalf of the contesting respondents that the registered Sale
    Deed dated 22.06.1964 (Exhibit P1) cannot be said to be a
    nominal Sale Deed as held by the High Court.
    6.7 It is further submitted by Ms. K. V. Bharathi, learned
    Advocate appearing on behalf of the contesting respondents that
    in any case, nobody challenged either the registered Sale Deed
    dated 22.06.1964 (Exhibit P1) or the subsequent registered Sale
    Deed dated 18.05.1973 (Exhibit P2). It is submitted that none of
    the defendants challenged the aforesaid two registered Sale
    Deeds. It is submitted therefore, in absence of any challenge, in
    16
    respect of the aforesaid Sale Deeds, more particularly, the Sale
    Deed dated 18.05.1973 (Exhibit P2) and considering Section 54
    of the Transfer of Property Act, the original plaintiff has become
    the absolute owner pursuant to the registered Sale Deed(s).
    6.8 It is further submitted by Ms. K. V. Bharathi, learned
    Advocate appearing on behalf of the contesting respondents that
    the so­called Partition Deed dated 23.04.1971 (Exhibit D4) is
    rightly held to be not admissible in evidence as the same was
    unregistered. It is further submitted that Exhibit D4 cannot be
    said to be a list of property partitioned. It is submitted that
    Exhibit D4 is a Partition Deed and therefore the same was
    required to be registered. It is submitted that as the same was
    unregistered, as rightly held by the High Court, the same was not
    admissible in evidence. It is submitted, therefore, the High Court
    has rightly not considered the so­called Partition Deed dated
    23.04.1971 (Exhibit D4).
    6.9 It is further submitted by learned Advocate appearing
    on behalf 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
    17
    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 so­called 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 First Appellate Court.
    While allowing the second appeal, the High Court framed only
    one substantial question of law which reads as under :
    18
    “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?”
    No other substantial question of law was framed. We
    are afraid that the aforesaid can be said to be a substantial
    question of law at all. It cannot be disputed and even as per the
    law laid down by this Court in the catena of decisions, the
    jurisdiction of the High Court to entertain Second Appeal under
    Section 100 of the CPC after the 1976 amendment, is confined
    only with the Second Appeal involving a substantial question of
    law. The existence of ‘a substantial question of law’ is a sine qua
    non for the exercise of the jurisdiction under Section 100 of the
    CPC.
    7.2 As observed and held by this Court in the case of
    Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC
    722, in the Second Appeal under Section 100 of the CPC, the
    High Court cannot substitute its own opinion for that of the First
    Appellate Court, unless it finds that the conclusions drawn by
    the lower Court were erroneous being :
    19
    (i) Contrary to the mandatory provisions of the applicable
    law;
    OR
    (ii) Contrary to the law as pronounced by the Apex Court;
    OR
    (iii) Based on in­admissible evidence or no evidence.
    It is further observed by this Court in the aforesaid decision
    that if First Appellate Court has exercised its discretion in a
    judicial manner, its decision cannot be recorded as suffering from
    an error either of law or of procedure requiring interference in
    Second Appeal. It is further observed that the Trial Court could
    have decided differently is not a question of law justifying
    interference in Second Appeal.
    7.3 When a substantial question of law can be said to have
    arisen, has been dealt with and considered by this Court in the
    case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the
    aforesaid decision, this Court has specifically observed and held :
    “Under Section 100 CPC, after the 1976 amendment,
    it is essential for the High Court to formulate a
    substantial question of law and it is not permissible
    to reverse the judgment of the first appellate court
    without doing so. There are 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
    20
    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 P2) and thereafter held that the plaintiff is
    not entitled to the declaration that he has become the owner.
    While interfering with the Judgment and Decree passed by both
    the Courts below, it appears that the High Court has again
    21
    reappreciated the entire evidence on record, which in exercise of
    powers under Section 100 of the CPC, is not permissible. Under
    the circumstances, the High Court has committed a
    grave/manifest error in quashing and setting aside the findings
    recorded by both the Courts below, 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.
  9. Even otherwise, on merits also, the impugned
    Judgment and Order passed by the High Court allowing the
    appeal and consequently decreeing the suit, is not sustainable. It
    was the case on behalf of the original plaintiff that the suit
    property was sold by registered Sale Deed dated 22.06.1964
    (Exhibit P1) by the plaintiff, along with his two brothers and their
    father Nanjappa in favour of one Siddalingappa from whom the
    plaintiff subsequently purchased the suit property under the
    registered Sale Deed dated 18.05.1973 (Exhibit P2). On the other
    hand, it was specific case on behalf of the defendants that the
    Sale Deed dated 22.06.1964 was a nominal Sale Deed and was
    never acted upon and as such was not to be acted upon at all. It
    22
    was also the case on behalf of the defendants that thereafter in
    the year 1971, the partition took place and the same was reduced
    in writing by document dated 23.04.1971 (Exhibit D4) and under
    the same document, it was recorded that the suit property had
    gone in favour of Krishnappa. Plaintiff denied that any partition
    was reduced in writing, more particularly, in the form of Exhibit
    D4 dated 23.04.1971. The High Court has observed and held that
    in view of the registered Sale Deed executed in favour of the
    plaintiff, the plaintiff has become the actual owner. The High
    Court has allowed the appeal and subsequently has decreed the
    suits mainly on the ground that :
    (i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)
    was an out and out Sale Deed and the same was not a nominal
    Sale Deed;
    (ii) That the defendants have never challenged the registered Sale
    Deed dated 22.06.1964 (Exhibit P1) and even the subsequent
    registered Sale Deed dated 18.05.1973 (Exhibit P2).
    (iii) Exhibit D4­Partition 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
    23
    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 cross­examination,
    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 that it
    belongs to joint family property. 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
    24
    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 cross­examination 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. In the cross­examination the original plaintiff has
    specifically admitted that in the year 1965­66, when the father
    sold away the said suit schedule property, there was no partition
    between the brothers at that time. In the circumstances, the
    registered Sale Deed dated 22.06.1964 (Exhibit P1), by which the
    suit property was sold to Siddalingappa, cannot bind
    Krishnappa. It was a registered Sale Deed which was not acted
    upon. Even the plaintiff and Siddalingappa tried to mutate the
    25
    name of Siddalingappa in the year 1973, which was the subject
    matter of the Revenue Authority.
    9.2 Now so far as the submission on behalf of the plaintiff
    that as the registered Sale Deed dated 22.06.1964 (Exhibit P1)
    was not challenged by the defendant by way of suit or even
    counter claim and therefore thereafter it was not open for the
    defendants to challenge the same is concerned, at the outset, it is
    required to be noted and as observed hereinabove, Krishnappa
    was not a signatory to the said document/Sale Deed and
    therefore it cannot bind him or his heirs. Even otherwise and as
    held by this Court in the case of Vidhyadhar (supra), in a suit
    filed by the plaintiff for a declaration on the basis of the
    registered Sale Deed, it is always open for the defendant, who is a
    stranger to the Sale Deed, to raise a plea that the Sale Deed was
    void, fictitious, collusive or not intended to be acted upon and or
    not 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 :
    26
    “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 landlord­tenant 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 property so that
    that person, namely, the transferee, may
    institute eviction proceedings on the ground of
    his genuine need and thus evict the tenant who
    could not have been otherwise evicted. In this
    situation, the deed by which the property was
    intended to be transferred, would be a collusive
    deed representing a sham transaction which was
    never intended to be acted upon. It would be
    open to the tenant in his capacity as a defendant
    to assert, plead and prove that the deed was
    fictitious and collusive in nature. We, therefore,
    cannot subscribe to the view expressed by the
    Privy Council in the case of Lal Achal Ram
    [(1905) 32 IA 113 : ILR 27 All 271] in the broad
    terms in which it is expressed but do approve the
    law laid down by the Calcutta, Patna and Orissa
    High Courts as pointed out above.”
    27
    Therefore, in the facts and circumstances of the case, we are of
    the opinion that without even challenging the Sale Deed (Exhibit
    P1) by way of behalf of independent proceedings, in a suit filed by
    the plaintiff seeking a declaration that he has become the owner
    pursuant to the registered Sale Deed, it is always open for the
    defendant, who is stranger to the Sale Deed, to raise a plea that
    either the Sale Deed is not binding to him or the same was
    without consideration or it was a nominal Sale Deed or void or
    fictitious, for that matter, collusive and not intended to be acted
    upon.
    9.3 Now so far as the finding recorded by the High Court
    that as the Partition Deed dated 23.04.1971 (Exhibit D4) was
    unregistered though required registration under the Provisions of
    the Registration Act and therefore the same is not admissible in
    evidence is concerned, it is required to be noted that as such
    Exhibit D4 can be said to be a Palupatti as has been described as
    Palupatti. Palupatti means list of properties partitioned. At the
    most, it can be said to be a family arrangement. Therefore, in the
    facts and circumstances of the case, the same was not required
    to be registered.
    28
    9.4 It is required to be noted that the deed dated
    23.04.1971, under which the suit property had gone /devolved in
    favour of the Krishnappa, was reduced in writing before the
    Panchayat and Panchas, and the same was signed by the village
    people/panchayat people and all the members of the family
    including even the plaintiff. Though the plaintiff disputed that
    the partition was not reduced in writing in the form of document
    Exhibit D4, on considering the entire evidence on record and
    even the deposition of plaintiff (cross­examination), 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
    29
    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
    technical rules of evidence. They have an
    important purpose to serve in the administration
    of justice. The ultimate aim of the law is to
    secure justice. In the recent times in order to
    render justice between the parties, courts have
    been liberally relying on those principles. We
    would hesitate to narrow down their scope.
    As observed by this Court in T.V.R. Subbu
    Chetty’s Family Charities case, that if a person
    having full knowledge of his right as a possible
    reversioner enters into a transaction which
    settles his claim as well as the claim of the
    opponents at the relevant time, he cannot be
    permitted to go back on that agreement when
    reversion actually falls open.”
    9.5 As held by this Court in the case of Subraya M.N.
    (Supra) even without registration a written document of family
    settlement/family arrangement can be used as corroborative
    evidence as explaining the arrangement made thereunder and
    conduct of the parties. In the present case, as observed
    hereinabove, even the plaintiff has also categorically admitted
    that the oral partition had taken place on 23.04.1971 and he also
    30
    admitted that 3 to 4 punchayat people were also present.
    However, according to him, the same was not reduced in writing.
    Therefore, even accepting the case of plaintiff that there was an
    oral partition on 23.04.1971, the document Exhibit D4 dated
    23.04.1971, to which he is also the signatory and all other family
    members are signatory, can be said to be a list of properties
    partitioned. Everybody got right/share as per the oral
    partition/partition. Therefore, the same even can be used as
    corroborative evidence as explaining the arrangement made
    thereunder and conduct of the parties. Therefore, in the facts
    and circumstances of the case, the High Court has committed a
    grave/manifest error in not looking into and/or not considering
    the document Exhibit D4 dated 23.04.1971.
    9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)
    executed by Siddalingappa in favour of the plaintiff is concerned,
    as there was a categorically finding by both the Courts below that
    the same document was sham. It is required to be noted that in
    the cross­examination, the plaintiff has stated that he paid
    Rs. 3000 to 4000 to Siddalingappa and the said property was
    purchased by him in the year 1973. However, in the document,
    31
    the sale consideration is stated to be Rs.200/­. Even PW2
    Siddalingappa has stated that he purchased the suit schedule
    property for Rs.200/­ and he sold the suit schedule property to
    the plaintiff for Rs.600/­ Therefore, it is a serious dispute with
    respect to consideration paid by the plaintiff and received by the
    Siddalingappa.
  10. In the aforesaid facts and circumstances of the case,
    the High Court was not justified in interfering with the findings
    recorded by both the Courts below. For the reasons stated above,
    the impugned Judgment and Order passed by the High Court
    cannot be sustained and the same deserves to be quashed and
    set aside and is accordingly quashed and set aside. The
    Judgment and Order passed by both the Courts below dismissing
    the suit, are hereby restored and consequently the suit filed by
    the original plaintiff is dismissed. No costs.
    ……………………………….J.
    [L. NAGESWARA RAO]
    NEW DELHI, ……………………………….J.
    MAY 1, 2019. [M.R. SHAH]
    32