Himachal Pradesh High Court
________________________________________________________________ vs Ludder Singh on 28 December, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 280/2005 Reserved on: 8.12.2015 .
Decided on: 28.12.2015 ________________________________________________________________ Shiv Ram and another ...Appellants Versus Ludder Singh ......Respondent ________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes.
________________________________________________________________ For the Appellants rt : Mr. Bhupender Gupta, Senior Advocate with Mr. Lovneesh Kanwar, Advocate.
For the Respondent :
Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate.
________________________________________________________________ Rajiv Sharma, Judge.
This Regular Second Appeal has been directed against judgment rendered by learned Presiding Officer, Fast Track Court, Mandi, H.P., in Civil Appeal No. 22/99, 69/2004 dated 17.3.2005.
2. Key facts necessary for the adjudication of the present appeal are that the plaintiffs-appellants (herein after referred to as 'plaintiffs') filed a civil suit against the respondent-
defendant (herein after referred to as 'defendant') seeking declaration to the effect that they are owner-in-possession of the land detailed in para-3 of the plaint on the basis of agreement 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 2dated 24.5.1995, with consequential relief of possession.
According to the averments made in the plaint, suit land as .
detailed in para 1 of the plaint was earlier in illegal possession of the parties. Defendant made an application for grant of Nautor land. It was agreed between the parties that after grant of land it shall be divided in three equal shares between the parties. Land was sanctioned in favour of the defendant. However, it was of thrown into common stock of the family till 1973. Plaintiffs remained in possession of the land till 24.5.1995 when plaintiffs rt relinquished possession on the terms and conditions of the family settlement arrived at between the parties. Settlement was reduced into writing on 24.5.1995 whereby plaintiffs relinquished possession in favour of the defendant and defendant also agreed to deliver the possession of the another piece of land which was recorded in joint possession of the plaintiffs and defendant which was recorded in the ownership of the State of Himachal Pradesh.
Though defendant agreed to deliver the possession of land which was earlier in possession of the defendant, but in fact, he did not deliver the possession and committed violation of the terms and conditions of the agreement dated 24.5.1995. Defendant filed a suit before the Sub Judge 1st Class, Sarkaghat. Defendant produced the agreement Ext. PA dated 24.5.1995 and has withdrawn the suit on the basis of family settlement/agreement.
It was agreed upon between the parties that if the defendant did ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 3 not deliver the possession of government land recorded in the ownership of the plaintiffs and also the portion of the land which .
was sanctioned in favour of plaintiff No. 1 which fell to the share of the defendant, plaintiffs shall be deemed to be in possession of the land mentioned in para -3 of the plaint. Notice was issued to the defendant vide registered AD. However, defendant did not reply and nor did he deliver the possession. Since the terms and of conditions of agreement Ext. PA have been violated by the defendant, plaintiffs have become owner of the land mentioned in rt para-3 of the plaint on the basis of settlement. Possession of the land was liable to be restored to the plaintiffs, on the basis of agreement dated 24.5.1995.
3. Suit was contested by the defendant. It was stated that the land described in para-1 was granted to the defendant Ludder Singh while in Army. It was never in illicit possession as alleged by the plaintiffs. There was no such agreement that the land would be divided between the parties. It was denied that the land was thrown in the common stock of the family. Defendant was in possession as owner since land was sanctioned to him.
However, in para-5 of the written statement, defendant has admitted that on 24.5.1995 compromise has taken place in the civil suit. It is further stated that the case was pending before the Assistant Collector 1st Grade Sarkaghat qua the government land, of which defendant has 1/3rd share i.e. 0-06-00 hectares.
::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 4Defendant has relinquished his share and is not interfering at all.
He has not committed any violation of agreement dated .
24.5.1995. It is admitted that on the basis of agreement dated 24.5.1995, suit was withdrawn. He has not interfered after 24.5.1995 in the suit land.
4. Plaintiffs filed replication. Learned sub Judge framed issues on 13.8.1996 and 25.11.1998. Sub Judge 1st Class. He of decreed the suit on 8.1.1999. Defendant filed an appeal before Presiding Officer, Fast Track Court. He allowed the same on rt 17.3.2005. Hence, this Regular Second Appeal.
5. The Regular Second Appeal was admitted on 29.9.2005, on the following substantial questions of law:
"Whether the First Appellate Court has wrongly come to the conclusion that Ex.PA required registration under Section 17 of the Registration Act when it was proved on record that oral family agreement had taken place in the year, 1973 and Ex. PA was merely a memorandum thereof?
Whether the First Appellate Court has wrongly ignored the material document Ex.PA, which could have been admissible for collateral purposes?
6. Mr. Bhupender Gupta, learned Senior Advocate, on the basis of substantial questions of law, has vehemently argued that the learned first appellate Court has come to a wrong conclusion that Ext.PA was required to be registered under Section 17 of the Registration Act. He then contended that Ext.
PA has been wrongly ignored.::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 5
7. Mr. G.D. Verma, learned Senior Advocate, has supported the judgment and decree passed by learned first .
appellate Court.
8. I have heard the learned counsel for the parties and also gone through the judgment as well as record very carefully.
9. Since both the substantial questions of law are interconnected, as such are taken-up together to avoid repetition of of evidence.
10. PW-1 Shatru Ghan has deposed that after suit land rt was granted as Nautor to the defendant, it was partitioned in equal shares between the parties. It was thrown into common stock of the family and similarly, the land which was granted as common Nautor land to Shiv Ram was also thrown into the common stock. Land was partitioned in 1973 between the parties.
11. PW-2 Bhagat Ram and PW-7 Gurdass Ram have corroborated the statement of PW-1.
12. PW-6 has prepared the Tatima Ext. PW-6/A to Ext.
PW-6/C as per the demarcation conducted by the Kanungo on the spot.
13. PW-9 Shambhu Ram, Kanungo deposed that he has carried out demarcation of the suit land. Suit land was found in possession of the plaintiffs. He submitted his report Ext. PW-9/A. ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 6 He has recorded the statements of the witnesses vide Ext. PW-
9/B. .
14. PW-10 Amar Singh deposed that previously suit land was in joint possession of the parties but after it was granted as Nautor to the defendant, it was partitioned between the parties and he has cultivated the land falling to the share of the PW-1.
15. Case of the plaintiff, precisely, is that on 24.5.1995, of a family partition/agreement has taken place between the parties. In para-5 of the written statement, defendant has rt admitted about the agreement, on the basis of which he has withdrawn the civil suit filed before Sub Judge. Execution of the agreement has duly been supported by PW-1 Shatrughan as well as PW-3 Kesar Singh, PW-4 Teg Singh and PW-5 Lal Singh.
16. DW-1 is the defendant. He has agreed that on 24.5.1995 a compromise took place between the parties. He has admitted his signatures on Ext. PA. He also admitted that a compromise was entered in the civil suit pending between the parties. According to the terms and conditions of the Ext. PA, land which was granted as Nautor to the defendant qua which he has filed suit against plaintiffs has been partitioned in the family partition, which means that the defendant who has also signed Ext. PA, has himself admitted that the land which has been granted as Nautor to him, was partitioned in a family partition.::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 7
17. It is evident from the contents of Ext. PA that not only the plaintiffs have relinquished their rights in the suit land .
in favour of the defendant but it also includes some other properties which are not the subject matter of the dispute, which have been partitioned between the parties on the basis of said document. Thus, Ext. PA is not merely a memorandum prepared after family arrangement already made between the parties. Ext.
of PA reflects division of properties and adjustment of shares between the parties and, on the basis of this document, not only rt rights have been relinquished by the plaintiffs in favour of the defendant but defendant also has relinquished some rights in the immovable properties in favour of plaintiffs. Thus, the document is a deed of partition and not a memorandum of earlier partition.
Thus, it was required to be compulsorily registered under Section 17 of the Registration Act.
18. Their lordships of the Hon'ble Supreme Court in Kale and others v. Deputy Director of Consolidation and others reported in AIR 1976 SC 807, have held that the family arrangements may be even oral in which case no registration is necessary if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 8 been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the .
memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 the Registration Act and is, therefore, not compulsorily registrable.
19. Their lordships of the Hon'ble Supreme Court in of Nani Bai v. Gita Bai reported in AIR 1958 SC 706, have held that a partition may be effected orally, but if the parties reduce rt the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1)
(b). Their lordships have held as under:
[11] But it was argued on behalf of the appellants that those documents-Exs. D. 52, D-53 and D-55-are not admissible in evidence even for the limited purpose of showing separation in estate. The question, therefore, is whether those documents "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," within the meaning of s. 17 (1) (b) of the Registration Act. No authority has been cited before us in support of this contention. Partition in the Mitaksharasense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bonds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 9 coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, .
what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1) of
(b), the material portion of which has been quoted above.
But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who rt have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17 (1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport of operate to do any of things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document "affecting immovable property." It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose.
20. Their lordships of the Hon'ble Supreme Court in Tek Bahadur v. Debi Singh reported in AIR 1966 SC 292, have held that the family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 10 not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared .
as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the of document would require registration as it is then that it would be a document of title declaring for future what rights in what rt properties the parties possess. Their lordships have held as under:
[12] Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother co- partners; and the last paragraph said:
"We, the three brothers, having agreed over the above statement and having made our own statements in the presence of the Panch called by us, and signed and kept a copy of each of this document as proof of it."::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 11
The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each brother had .
agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and, therefore, is not a document which of would require compulsory registration under S. 17 of the Registration Act.
21. Their lordships of the Hon'ble Supreme Court in rt Siromani v. Hemkumar reported in AIR 1968 SC 1299, have held that document effecting partition of joint family properties and value of more than `100 by metes and bounds is required to be registered compulsorily and in the absence of its registration it is not admissible to prove title of any of the coparceners. Their lordships have held as under:
[4] The first question to be considered in this appeal is whether the deed, Es D-4 dated December 27, 1943 is admissible in evidence. On behalf of the appellants Mr. Gupte put forward the argument that the document is inadmissible in evidence as it effected the partition of the properties of the value of more than Rs 100 and it was not registered. It was argued that there was allotment of specific properties to individual coparceners in this document and its registration was therefore compulsory under Section 17 (1) (b) of the Registration Act. In our opinion, the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenery and there was no partition of the properties by metes and bounds. It is not possible to ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 12 accept this argument as correct. The relevant portion of Ex. D-4 is to the following effect :
For the partition of our joint land in Mauza Tilgi and Supa and house and utensils .
etc. and Dhan, Movable and immovable property, amongst us three brothers, the Panchas have been appointed. The partition and distribution effected by the undermentioned Panchas will be acceptable to us and also the undermentioned conditions will also have to be accepted by us.
1. Out of lease land in Mauza Tilgi and Mauza Supa totalling 123 acres, Hem Kumar's share including Jethansi will be 51 acres that is 51 shares and Dinmani's 39 acres that the 39 shares of and minor Shiromani's whose guardian is Smt. Sobhagwati 33 acres that is 33 shares. The three of them will be in possession of the same. Out of 123 acres of land, the land near Munga Tikra Gara Para will be given to Dinmani and minor Shiromani rt through guardian Smt. Sobhagwati for building a house instead of the old house. For building of the house in Munga Tikra the three brothers will give Rs. 60. Out of the 'Mitti Khatu' and Gobar Khatu, there is in the house, after deducting Hemkumar's tenth share will be divided into three equal shares amongst the three brothers and they will take it so.
They will also divide the burried Khatu into their shares.
22. Their Lordships of the Hon'ble Supreme Court in Roshan Singh and others vs. Zile Singh and others, AIR 1988 SC 881 have held that 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 is not registered, section 49 of the Act will prevent its being admitted in evidence. Their Lordships have held as under:
"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 ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 13 the parties to it, requires registration under S. 17(1)(b) of 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 of 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 rt 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, S. 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a 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."
23. Their lordships of the Hon'ble Supreme Court in Bhoop Singh v. Ram Singh Major reported in AIR 1996 SC 196, have held that the Court should examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 14 consent. If latter be the position, the document is compulsorily registerable. Their lordships have held as under:
.
[16] We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of of registration, which requires payment of stamp duty, embeded in the decree or order.
[17] It would, therefore, be the duty of Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or rt decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable.
24. In the present case, there is no evidence that there was no pre-determined partition in the year 1973. If that was the situation, it was required to be reported to the revenue authorities for making necessary correction in the record of rights.
25. Learned Single Judge of Madras High Court in C.S. Kumaraswami v. A. Gounder reported in AIR 1974 Madras 239, has held that the division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(i)(b) of the A. Learned Single Judge has held as under:
::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 15[10] A partition in a joint Hindu family may denote either of two things: (i) a division in status as between the members of the coparcenary; and (ii) an actual division of .
the properties belonging to the joint family by metes and bounds as between the different members of the family. The expression 'partition' has been used indiscriminately to denote either one or the other of the two things. Once a partition of the properties by metes and bounds has taken place, naturally there will be the consequential transaction of the parties, to whom the properties have been allotted separately, taking possession of these properties. Thus it will be seen that in the case of an express, completed partition there will be three different of stages--(i) the stage of effecting a division in status, (ii) the stage of dividing the properties by metes and bounds, and
(iii) the stage of each party taking possession of the properties allotted to his share. As far as these three stages are concerned, it is conceded, having regard to the rt decided cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the first and third stages, then also it is conceded that the document does not require registration, because neither the division in status nor the actual taking possession the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property.
Therefore, it is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(i)(b) of the Act. Under the Hindu law, it is well settled that, severance in status can take place either by the unilateral declaration of one of the coparceners or by agreement between all the coparceners. Where severance is effected as above, it is not a transaction which requires any writing and even if it is effected by means of any instrument in writing, that will not fall within the scope of Section 17(i)(b) of the Act. Similar will be the position with regard to taking possession of the properties. From the very nature of the case, once a division of the properties by metes and bounds has taken place as between the members of a coparcenary and the parties take possession as exclusive owners of the respective items allotted to them, such a partition assumes a division in status having taken place between the parties. Therefore, though an unregistered partition deed cannot be admitted in evidence to prove the terms of the partition, it can certainly be admitted in evidence for proving the division in status and the fact of partition, as pointed out by several decisions based on the judgment of the privy ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 16 Council in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134 = (AIR 1922 PC 266). Similarly, taking possession of the shares allotted to each one of the parties at the partition will be a purpose collateral to the purpose .
of partition and such taking possession not creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, will not require registration, and therefore an unregistered deed of partition can be used for the collateral purpose, namely, for proving the nature and character of the possession of the respective items of properties in the hands of the members of the coparcenary. In Bai Gulabbai v. Sri Datgarji, (1907) 9 Bom LR 393, it was pointed out that a collateral purpose is any purpose other than that of of creating, declaring, assigning, limiting or extinguishing a right to immovable property. Therefore a collateral transaction within the meaning of the proviso to Section 49 of the Act means a transaction other than the transaction affecting immovable property, but which is in rt some way connected with it. In Ramlaxmi v. Bank of Baroda, the Bombay High Court pointed out-
"The expression 'collateral' transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word 'collateral' is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.
An obvious illustration of this is the transaction which is recorded in the memo of petition before us. The transaction therein recorded was a transaction of partition of the movable and immovable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration and not being registered could not be admitted in evidence under the terms of Section 49, Registration Act. There was, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 17 status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be effected under Hindu law in various modes, one of the modes .
being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there was a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition i.e., severance of joint status thus would be a collateral transaction, and would certainly fall within the proviso to Section 49 of the Registration Act."
of
26. Learned Single Judge of Bombay High Court in Nilkanth v. Ramchandra reported in AIR 1991 Bombay 10 has rt held that caption given to a document by parties is not decisive of what it amounts to. Its contents have to be read as a whole to determine the true nature of the transaction it incorporates. The learned Single Judge has held as under:
12. The crucial question in the suits is as to the effect of Ex.P1. According to Viraj the same does not enlarge the right of N.K. Apte and Saroj Apte nor whittle down that which vests in him and his parents. The submission is that accretions to joint family property, even if the result of one member's enterprise enure to the benefit of the joint family. When therefore a disclaimer or interest in the accretion is made, it must be in the manner provided for alienations i.e. by a registered instrument and if intending to bind the non-alienating coparceners, for reasons justifiable as being for legal necessity or benefit to the estate. Permitting the construction of upper storey upon an existing structure with a commitment that some owners of the latter will not claim an interest in the former, amounts to an alienation or relinquishment. Such is the real nature of the transaction embodied in Ex. P1.
The value of the property parted with is certainly more than Rs.100/-. The first question is whether Ex.P1 required registration. Counsel for the N.K. Apte group says that Ex. P1 is the record of past events and a family arrangement. It was not therefore compulsorily registrable. A family arrangement per se is not exempt from registration. The caption given to a document by ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 18 parties is not decisive of what it amounts to. Its contents have to be read as a whole to determine the true nature of the transaction it incorporates.
.
27. On the similar question, a Division Bench of the Madras High Court in A.C. Lakshmipathy and another vs. A.M. Chakrapani Reddiar and five reported in 2001 (1) CTC 112, have laid down following general prepositions as under:
of [42] To sum up the legal position (I) A family arrangement can be made orally. (II) If made orally, there being no document, no question of registration arises.
rt (III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. (V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes. (VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act.::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 19
28. Learned Single Judge of Andhra Pradesh High Court in A. Krishna v. A. Arjun Rao reported in AIR 2004 AP has held .
that document effecting family partition is required to be stamped and registered. The learned Single Judge has held as under:
[10] The underlying object of Section 35 of the Stamp Act is to ensure that the instrument chargeable with duty is duly stamped, as otherwise it would cause loss to the exchequer, and in order to save revenue to the State, the of provision makes the instrument which is not duly stamped inadmissible in evidence. In the instant case, the plaintiffs by seeking to produce the document dated 3-6- 1977, which is in the nature of memorandum of partition between the parties, are seeking to extinguish the exclusive right created in favour of Defendant No. 2. As rt per the recitals of the document, it is clear that partition has been effected by specifying the shares, which includes payment of maintenance to their mother, in that view of the matter, the document dated 3-6-1977 cannot be said to be memorandum regarding past partition. A perusal of the document further discloses that actual partition was not done by metes and bounds as per earlier partition. By virtue of the document, according to the plaintiffs, separate possession was sought to be delivered to the respective parties, and as such, it is evidencing partition. In this context, it is relevant to state that the document sought to be marked does not contain recitals that the parties have already taken possession of the properties by virtue of the earlier oral partition and continue to enjoy the said property separately after taking possession by virtue of the earlier partition. In the absence of any such recitals in the document, the Court below has rightly come to the conclusion that the document is required to be stamped and registered.
29. Learned Single Judge of Allahabad High Court in Bankey Bihari vs. Surya Narain reported in AIR 1999 Allahabad 167 has held that document disclosing that there was a partition of property between two brothers by metes and bounds and also stating rights and obligations of said two brothers. It was a document of family arrangement and not only a memorandum of ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 20 family arrangement and required registration. The learned Single Judge has held as under:
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8. Learned counsel for the appellant has challenged the judgment of the lower appellate court mainly on the grounds ; firstly, that the document in question was only a memorandum of family settlement, consequently it was not required to be registered ; and secondly, that the said family arrangement was acted upon by the parties and the defendant having benefited therefrom is estopped from denying the existence of the family arrangement or from questioning its validity. In support of his submission, learned counsel has placed strong reliance of upon the decision of the Supreme Court in the case of Kale v. D.D.C., AIR 1976 SC 809. I have carefully considered the submission made by the learned counsel for the appellant. The family arrangement between the parlies had been reduced in writing and is on record as rt Exhibit 1. The lower appellate court has held, and in my opinion rightly, that the said document could not be said to be a deed of partition as one of the parties namely, Purshottam Dass has not taken any share in the property. The law, however, is well-settled that the family arrangement may be even oral and in that case, no registration is necessary. However, registration would be necessary only if the terms of the family arrangement are reduced into writing. The Supreme Court in the case of Kale (supra) has held that a distinction should be made between a document containing the terms and recitals of the family arrangement and a mere memorandum prepared after the family arrangement had already been made. In such a case, the memorandum Itself does not create or extinguish any right in immovable property and, therefore, not compulsorily reglsterable. To the same effect is the view expressed by the Supreme Court in the case of Roshan Singh v. Ziley Singh, AIR 1988 SC 881, wherein the following observations have been made :
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 the division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered Section 49 of the Act will prevent its being admitted in evidence."
In the light of the settled legal position, the document (Exhibit-1) can be examined. From a close perusal thereof. It would be evident that the same was not a memorandum of family ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 21 arrangement by which some antecedent arrangement had been noticed and recorded for information or for rerr.emberanee. The document discloses that there has been a partition by metes .
and bounds between the two brothers (plaintiff and the defendant). Along with the document, a map drawn to scale has also been made a part thereof in which the two portions have been shown in red colour and in violet colour. The document discloses that the portion shown in the map in red has been allotted to the defendant and the one shown in violet colour has been given to the plaintiff. It also discloses that Purshottam Dass, who was the first party mentioned in the said deed. Is not taking any of share in the property. This document also mentions that both the parties who will be in possession of their respective share will not obstruct the light and air of the other party and in case any of them is desirous of disposing of his rt share he shall offer the same to the other party, before disposing it of to any third person. The last line of this document is very significant. It reads as follows:
"Dastavez takseem nama likh diya ki waqt par kam aavey."
Therefore, from a bare reading of this document, it is evident that by the document Itself a partition was effected between the two real brothers, namely, the plaintiff and the defendant. Consequently, it cannot be said to be a mere memorandum of family arrangement which has already been effected and has been recorded only for the purpose of rememberance or for the record.
13. As a result, this Court is of the view that the deed of family arrangement was rightly held to be Inadmissible in evidence as the same was hit by Section 35 of the Stamp Act and Section 17(1) (b) of the Registration Act, and the lower appellate court was, therefore, right in allowing the appeal. The second appeal lacks merit and is dismissed. However in the facts and circumstances of the case the parties shall bear their own costs.
30. In this case, division of property and adjustment of shares has been shown whereby certain rights have been relinquished by the plaintiffs in favour of the defendant and defendant has also relinquished some rights in favour of the ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 22 plaintiffs in the immovable property. Ext. PA deed of partition can not be termed as memorandum of earlier partition between .
the parties.
31. It is reiterated that Ext. PA being deed of partition was required to be registered under Section 17 of the Registration Act and thus, as per Section 49 of the Indian Evidence Act, is not admissible in evidence and plaintiffs can not be declared owner of of the suit land and possession of the suit land can not be delivered in favour of the plaintiffs.
32. rt Plaintiffs have also moved an application being CMP No. 12363/2015 whereby order passed by Assistant Collector 1st Grade, Sarkaghat in file No. 21/93 has been placed on record.
According to the averments made in the written statement, case filed was pending before Assistant Collector 1st Grade. It is duly proved in this document that the Settlement Officer, Kangra at Dharamshala vide Order dated 30.11.1971 has ordered that the plaintiffs i.e. Shiv Ram, Ludder Singh and Shatru Ghan, who have filed the case No. 21/93 be ejected from the Government land comprised in Khasra Nos. 2326, 2327, 2336, 2421, 2432, 2425 and 2433 (7 plots) measuring 0-17-93 hectares situate in Mohal Behri, Tehsil Sarkaghat, District Mandi. They filed suit for declaration before Assistant Collector 1st Grade. He dismissed the same on 11.9.2015. A categorical finding has been returned by the learned Assistant Collector 1st Grade that plaintiffs have ::: Downloaded on - 15/04/2017 19:36:30 :::HCHP 23 failed to adduce clinching evidence to prove the claim of adverse possession. Consequently, the application is disposed of.
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33. The substantial questions of law are answered accordingly.
34. Accordingly, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also dismissed.
of
(Rajiv Sharma)
rt Judge
28.12.2015
vikrant
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