Madhya Pradesh High Court
Kailash Prasad (Dead) Through Lrs ... vs Jagdish Sharma on 28 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:31032
1 MP-2508-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 2508 of 2025
KAILASH PRASAD (DEAD) THROUGH LRS SHIROMANI AND OTHERS
Versus
JAGDISH SHARMA AND OTHERS
Appearance:
Shri Harish Joshi - Advocate for the petitioners.
None for the respondent though served.
Heard on - 11.09.2025
Pronounced on - 28.10.2025
ORDER
Petitioner has preferred this petition under Article 227 of the Constitution of India being aggrieved with the order dated 28.08.2024 passed by 1st Civil Judge, Junior Division, Sonkatch, District Dewas in Cos- A13/2024, whereby the application filed by the respondent no.1 and 2 under Section 17 of Registration Act, 1908 (hereinafter referred to as 'the Act, 1908') has been allowed.
2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for declaration and permanent injunction against defendants/ respondents no. 1 to
6. When the matter was fixed for evidence of petitioners, the respondent no.1 and 2 filed an application u/s 17 of Registration Act, challenging admissibility of memorandum of Family arrangement. Thereafter, petitioners filed their objections to the said application, however, the same was allowed Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00 NEUTRAL CITATION NO. 2025:MPHC-IND:31032 2 MP-2508-2025 vide order dated 28.08.2024. Memorandum of family arrangement document has been found to be requiring registration under 'the Act, 1908' and therefore as per Section 35 of The Indian Stamp Act, 1899 (for short 'the Act, 1899') document has been impounded and documents of memorandum of family arrangement have been sent to collector of stamps by the trial Court.
3. Learned counsel for the petitioners submitted that the Memorandum of Family Arrangement entitles them to a share in the property and that the sale deed executed by the defendant no.1/respondent no.1 in favour of respondent no.4 on 24.01.2020 is illegal, and not binding upon the petitioners. The respondents have filed a written statement in the trial court denying all of the petitioners' claims. While the case was awaiting the petitioners' evidence, respondent number 4 filed an application under Sections 17 and 49 of 'the Act,1908' challenging the admissibility of the Memorandum of Family Arrangement. The trial court allowed the respondent's application holding that the registration of Memorandum of Family Arrangement required to be valid. Section 17 of 'the Act, 1908' mandates registration for certain documents relating to immovable property, and Section 49 of 'the Act, 1908' makes unregistered documents inadmissible as evidence. In accordance with Section 35 of 'the Act, 1899', the court ordered the impounding of the document because it was not properly stamped and registered. The documents have been sent to the Collector of Stamps to assess the proper stamp duty and penalty.
4. Counsel further submitted that the established legal principle is that Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00 NEUTRAL CITATION NO. 2025:MPHC-IND:31032 3 MP-2508-2025 the admissibility of a document is determined by the recitals contained within the document itself, not by the claims or defenses of the parties involved in the case, whereas the trial court allegedly ignored this settled principle of law while passing the impugned judgment. The documents in question make it clear that no rights were created in the property mentioned therein. The family members have merely made an arrangement or settlement, as desired by their ancestor Nathu Prasad Ji, the original owner, regarding their respective shares in the property. The family settlement deed does not show any relinquishment of rights therefore it is not required to be registered. It is well settled in law that if, a deed of family settlement does not itself create or extinguish any rights in immovable property, the same does not requires registration.
5. The trial Court has committed error in holding that the documents / recital is family arrangement deed and therefore requires registration under 'the Act, 1908'. The learned trial Court has committed error in allowing the application under Section 17 of 'the Act, 1908', without considering the pleadings of the document. The impugned order is based upon misinterpretation of Section 17 of 'the Act, 1908'. Even if it is assumed that the Family arrangement dated 16.10.2020 is hit by rigors of Section 17 of 'the Act, 1908', even then the documents in controversy are admissible into evidence for the purpose of "collateral transaction" under section 49 of 'the Act 1908'. Learned counsel relied upon the judgment of Hon'ble Supreme Court in the case of Roshan singh & Ors. vs. Zile Singh & Ors [(2018) 14 SCC 814]; SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., [2011 Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00 NEUTRAL CITATION NO. 2025:MPHC-IND:31032 4 MP-2508-2025 (14) SCC 66] a n d Yellapu Uma Maheshwari & Anr vs Buddha Jagadheeswararao & Ors [ 2011 (14) SCC 66] in support of his contentions and submitted that the impugned order is bad in law and not sustainable, hence counsel prays for quashment of the same.
6. Since the respondent did not appear despite having been served notice via 'humdast' mode, the order was passed ex-parte.
7. After hearing counsel for the petitioners I have perused the record.
8. The alleged document is an instrument of Family settlement, which establishes the division of property among family members as desired by the original owner, Nathu Prasad Ji. The trial court determined that the contents of the disputed document show it was an actual family settlement, not simply a reminder of an earlier division of agricultural land. The document was dated 16.01.2020, but was mistakenly written as 16.01.2018. While the pleadings refer to the document as being of the year 2020, the document is in fact dated 16.01.2018. No date is mentioned with any of the signatories' signatures in the document. Here it is significant to mentioned that the date of the document is important because the settlement was made and the documents were prepared on that same date i.e. on 16.01.2018, however, the petitioner's claim that the documents were prepared in 2020 is not reliable. There will be no exemption from the stamp duty, since the meeting and document preparation dates are the same, this relief is not applicable in this case. The point of consideration is that whether the said document is required to be registered or not.
Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00NEUTRAL CITATION NO. 2025:MPHC-IND:31032 5 MP-2508-2025
9. As the stamp duty paid was lesser than the requisite stamp duty, therefore relying upon the judgment of Hansa Industries Pvt. Limited vs. Kidarsons Industries Pvt. Ltd [AIR, 2007 SC 18] and in the light of Section 17 of 'the Act, 1908' the trial court has ordered the document to be impounded for subsequent proceedings. For impounding, the deficient stamp duty and a penalty of up to ten times of that amount must be paid under Sections 35 or 40 of 'the Act, 1899', depending on whether the document is admitted in court or sent to the Collector. Even after payment, this process does not substitute for the legal requirement of registration, and the document remains an unregistered instrument.
10. In view of the aforesaid discussions, it is apposite to refer Section 17 of 'the Act, 1908' which is reproduced below:
Section 17 - Documents of which registration is compulsory.
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00 NEUTRAL CITATION NO. 2025:MPHC-IND:31032 6 MP-2508-2025 title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property
(f) any document which purports or operates to effect any contract for sale of any immovable property;
(g) power of attorney relating to sale of immovable property in any way
(h) any other instrument required by any law for the time being in force, to be registered.
Provided that the [State Government]may, by order published in the [Official Gazette], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A of the Transfer of Property Act, 1882.
(2) Nothing in clauses (b) and (c) of subsection (1) applies to -
(i)...
(ii)..
(iii)..
(iv)..
Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00NEUTRAL CITATION NO. 2025:MPHC-IND:31032 7 MP-2508-2025
(v) [any document other than the documents specified in subsection (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of One Hundred Rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will when executed, create, declare, assign, limit or extinguish any such right, title or interest "
11. As per Section 17(1)(b), other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be registered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force.
12. The judgment relied by counsel for the petitioners Roshan Singh & Ors (Supra) deal with documents of partition and in the said context it was held that since the document merely creates a right to obtain another document and therefore the said document does not require registration and is accordingly admissible in evidence. It was held that if a document was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition, the same was exempted from registration under section 17(2)(v) of the Act, 1908. In the present case the alleged document in question was not a memorandum of family settlement but an instrument of family arrangement, therefore, it was required to be registered under 'the Act, 1908' and therefore was inadmissible in evidence being unregistered.Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00
NEUTRAL CITATION NO. 2025:MPHC-IND:31032 8 MP-2508-2025
13. In the case of Pramod Kumar Vs. Vimla Devi, 2017(1) MPLJ 512, the co-ordinate Bench of this Court has held that oral partition when it is reduced in writing and recital of document clearly speaks of allotment of properties to respective parties, such document shall be required to be registered compulsorily. In the case of Rukayya Bai Vs. Munni Bai and another, 2004(2) MPLJ 92 , the co- ordinate Bench of this Court held that a family settlement reduced in writing contents showing relinquishment of rights and title in house are required to be compulsorily registered and therefore, cannot be used to protect possession if not registered. In the light of the aforesaid discussions this Court is of the view that the trial court has rightly held that the document in question is an instrument of family arrangement, and therefore, the trial court directed the document to be impounded, thereafter, the said document has been sent to collector of stamps. The said document is an unregistered instrument and it is up to the concerned parties choice whether to impound the same or not. However, it is made clear that mere impounding of the document does not render the document to be a registered document. This Court is of the view that the impugned order is just and proper and no inference is warranted in the impugned order.
14. With the aforesaid observations, the petition stands dismissed.
(ALOK AWASTHI) JUDGE sumathi Signature Not Verified Signed by: SUMATHI JAGADEESAN Signing time: 28-10-2025 19:38:00