Point of Law: Compulsory registration as adumbrated under Section 17(1)(b) of the Registration Act, failing which, the claimants/appellants have to face mischief consequences of Section 49 of the Registration Act

JUDGMENT :

(Prayer: Civil Miscellaneous Second Appeal is filed under Order 41 Rule 27 read with Section 100 of Civil Procedure Code against the judgment and decree dated 01.04.2008 made in C.M.A.No.2 of 2008 on the file of the District Judge, Nilgiris at Udhagamandalam, confirming the fair and decreetal order dated 16.10.2006 made in E.A.No.279 of 1999 in E.P.No.87 of 1998 in O.S.No.25 of 1989 on the file of the Sub-Court, Nilgiris at Udhagamandalam.)

1. The appellants are the claimants, but, they were not arrayed as parties in O.S.No.25 of 1989. The suit property originally belonged to one Morcha Gowder, who died leaving behind his sons, namely, Y.M. Boja Gowder and Y.M. Subramaniam. The second respondent/Y.B.Ramakrishnan is one of the legal heirs of Y.M. Boja Gowder. Whileso, the Tamil Nadu Housing Board/first respondent herein filed a suit in O.S.No.25 of 1989 seeking for recovery of Rs.5,85,552/- and obtained an decree with interest at 18% per annum from the date of suit till the date of realisation. Thereafter, the decree holder/Tamil Nadu Housing Board filed E.P.No.25 of 1989 for attachment and sale of the following properties:

R.S. No. Total extent and extent owned

157/2 1.98 acres

157/6 2.48 acres

157/5 2.55 acres

207/9 2.60 acres

of Yadapalli Village

Total 9.61 acres

Since the properties were attached on 13.12.1999, E.A.No.279 of 1999 was filed by the appellants on 21.12.1999 under Order 21 Rule 58 read with Section 151 of the Civil Procedure Code (CPC) to release one of the items of the attached properties viz. 2.60 acres in S.No.207/9 of Edappally Village.

2. It is further averred by the appellants in the Execution Application (EA) that the petition mentioned property was originally allotted to their share under the family arrangement in the year 1952, subsequently, that was partitioned in the year 1988. Even on earlier occasion, oral partition effected was reduced into writing in the form of Memorandum dated 08.08.1988 confirming the allotment of petition mentioned property in their favour. Thereafter, the claimants/appellants have filed a suit in O.S.No.130 of 1995 seeking for declaration of their title and for consequential injunction in respect of the petition mentioned property. The said suit was subsequently transferred to the file of District Munsif Court, Coonoor, and renumbered as O.S.No.340 of 1995 and in the said suit, interim injunction was granted in favour of the appellants herein and the judgment debtor/second respondent herein was a party in the said suit. Since the second respondent has no share or interest, the land in S.No.207/9 absolutely belongs to the appellants, hence, the petition mentioned property cannot be sold in execution of the decree obtained against the second respondent by the first respondent/Tamil Nadu Housing Board.

3. The first respondent/Tamil Nadu Housing Board filed a counter affidavit taking a stand that the claimants/appellants herein do not derive any right over the alleged oral partition or family arrangement in respect of the petition mentioned property, because, the land in question is absolute property of the second respondent. Whileso, EA has been filed by the appellants with an attempt to defeat the decree obtained by the first respondent/Tamil Nadu Housing Board against the second respondent, hence, the same is liable to be dismissed.

4. The second respondent/judgment debtor has filed a counter affidavit contending that the subject property in S.No.207/9 of Edappally Village, originally belonged to Morcha Gowder, grandfather of the second respondent, who died intestate leaving behind his two sons, namely, Y.M.Boja Gowder and Y.M.Subramaniam. Y.M.Bhoja Gowder is the father of the second respondent who died intestate leaving behind Y.B.Bheeman, Y.B.Krishnamurthy and Y.B.Nanjammal @ Nancy. Pending this appeal, Y.M.Subramanian, first claimant, died leaving behind the claimants 2 to 4/appellants herein. Therefore, since the said Morcha Gowder is none other than the grandfather of th