Madhya Pradesh High Court
Harshwardhan Nayak vs Yasho Wardhan Nayak on 16 April, 2015
1
W.P.No.19470/2013
Writ Petition No.19470/2013
16.04.2015
Shri Dinesh Koshal, learned counsel for petitioner.
Shri Umesh Trivedi, learned counsel for respondents
No.1 and 6.
Shri Harsh Gupta, learned counsel for respondents No.2 and 5.
Heard.
Order dated 30.09.2013 passed by First Civil Judge Class-II, Tikamgarh in Civil Suit No.3-A/2012 is being assailed vide this petition under Article 227 of the Constitution of India. Vide impugned order the trial Court allowed the objection raised by respondents No.1 and 6 with regard to admissibility of 'Parivarik Vyavastha Patra' - Family settlement during examination-in-chief on the ground that it is not admissible since it is not registered under the Registration Act, 1908 (hereinafter referred to '1908 Act').
Suit at the instance of petitioner/plaintiff is for declaration of title over 1/5 share in the suit property and as evident from the pleadings the claim is rested on the said 'Parivarik Vyuvastha Patra' which is brought on record as Annexure P-2 (hereinafter referred to as 'the instrument'). The said instrument as evident therefrom was executed on 23.03.2005 delineate the share in the property in metes and bounds amongst the family members. In the course of 2 W.P.No.19470/2013 recording of evidence petitioner tendered the instrument in evidence to substantiate his claim wherein objections were raised on behalf of defendant No.1 & 2 to the effect that and since vide instrument in question the partition was effected in metes and bounds it was compulsorily registrable under Section 17 of the Registration Act, 1908 and having not been registered cannot be taken in evidence because of the bar under Section 49 of the Act. Though objection raised by defendants No.1 and 6 was opposed at by the petitioner/plaintiff, however, the trial Court ruled with defendants No.1 and 6 and declined to admit the document in evidence on a finding that vide said instrument delineating of share amongst the family members was in metes and bounds was compulsorily registrable but was not registered.
Assailing the order it is submitted by learned counsel for petitioner that the trial Court committed grave jurisdictional error as the claim put froth by the petitioner was in respect of his own share which was delineated by the instrument in question and though not registered could have been taken in evidence for collateral purpose to establish the right which accrued in his favour thereunder.
Petitioner has placed reliance on decisions in Bondar Singh vs. Nihal Singh : AIR 2003 SC 1905 and Narendra Kante vs. Anuradha Kante : 2010 (2) JLJ 210. 3 W.P.No.19470/2013
Learned counsel for respondent however supports the order.
Considered the rival submissions.
There is no dispute amongst the parties that the instrument in question delineates the share amongst the family members in metes and bounds. In other words there was no prior partition and the partition for the first time took place with execution of said instrument. Thus there was transfer of share amongst the family members and the corresponding relinquishment of right on respective family members over the joint ownership. As there was transfer of right in favour of respective family members of the respective shares the instrument was compulsorily registrable under Section 17 of the 1908 Act. Clause (b) of sub-section 1 of Section 17 requires :
"17. (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 No. XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VII of 1871), or the Indian Registration Act 1877 (III of 1877),or this Act came or comes into force, namely :-
(a) instruments of gift of immoveable 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 4 W.P.No.19470/2013 contingent, of the value of one hundred rupees and upwards, to or in immoveable property;
(c) ...
..."
Furthermore, clause (c) of Section 49 provides for that "No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Though, vide proviso appended to Section 49, it is provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
However, in the present case, the petitioner is not benefited by the proviso as he lay his claim on the basis of instrument which is unregistered.
In this context reference can be had of the decision in Roshan Singh v. Zile Singh : AIR 1988 SC 881 wherein it is held:
"9. It is well-settled that while an instrument of partition which operates or is intended to operate 5 W.P.No.19470/2013 as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst 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. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport 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 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. Secondary 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 6 W.P.No.19470/2013 parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition."
The decision in Bondar Singh (supra) and Narendra Kante (supra) relied upon by the petitioner are distinguishable on the facts; whereas, in the case of Bondar Singh (supra) the suit was for declaration of title and permanent injunction on the basis of adverse possession wherein a sale deed dated 09.05.1931 by father of defendant in favour of predecessor in interest of the plaintiff which was an admitted document though unstamped and unregistered was under consideration and its admissibility was to the extent for collateral purpose to establish "the nature of possession of plaintiff over the suit land" whereas the decision in Narendra Kante (supra) turned on the facts that there was a previous oral partition which was reduced into writing later on and was a memorandum of partition and its not registration did not effect the right accrued on earlier oral partition. Whereas in the case at hand it is for the first time the family members got together and partition the suit property in metes and bounds vide partition deed in question which being compulsorily registrable under 1908 Act and being not registered was rightly declined to be admitted in evidence. Therefore, no interference is caused.
Consequently, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand