Summary
The Supreme Court upheld a decree challenging an unregistered exchange of family property. The property had been found ancestral, and the father’s partition share retained its coparcenary character as regards his sons and grandson. The exchange included an RCC building, so registration was required; it could not be proved as an effective transfer through oral evidence. Part-performance protection was unavailable because the necessary plea had not been raised.
Issues
- Whether ancestral property allotted on partition became the father’s absolute property as against his sons and grandson.
- Whether the unregistered exchange could transfer the building or be proved through oral evidence.
- Whether Section 53A protection could be claimed without pleading possession in part performance.
Provisions considered
- Sections 118 and 54, Transfer of Property Act, 1882An exchange involving immovable property of the requisite value must follow the mode prescribed for sale. The deed included an RCC building worth over Rs. 100 and required a registered instrument. (¶¶ 17, 18)
- Sections 17(1)(b) and 49, Registration Act, 1908The unregistered deed could not be relied on to effect or prove the transfer of the immovable property. (¶¶ 19, 20, 22)
- Section 91, Indian Evidence Act, 1872The contents of the inadmissible exchange deed could not be established by substituting oral evidence for the required document. (¶¶ 21, 22)
- Section 53A, Transfer of Property Act, 1882The appellant had not pleaded taking possession in part performance; he could not obtain the provision’s protection without that pleading. (¶ 23)
Held
- On the concurrent finding that the divided property was ancestral, the father’s partition share remained coparcenary property as regards his sons and grandson, though separate as against other relations. Their suit challenging the exchange was maintainable. (¶¶ 11, 12, 16)
- The deed’s recitals included the RCC building, rather than merely an exchange of businesses. Its admitted value exceeded Rs. 100, so the transaction required registration under the rules governing sale and exchange. (¶¶ 17, 18, 20)
- The exchange deed could not be taken into account to establish transfer of the immovable property. Its lack of required registration could not be overcome by oral proof of its contents under Section 91. (¶¶ 20, 21, 22)
- Pleadings give notice of the opposing case and define the controversy. The appellant’s failure to plead possession in part performance precluded the Section 53A defence. (¶ 23)
Result
Appeal dismissed; High Court judgment restoring the trial court’s decree sustained. No order as to costs.