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61. In Roshan Singh V. Zile Singh AIR 1988 SC 881, the Supreme Court reiterated the test to determine whether an instrument is merely a memorandum recording a completed family arrangement or an instrument of partition, in the following words:

―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 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 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.‖ (emphasis supplied) ―15. . . .The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s.17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. . .‖ ―16. . . . The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See: Rajangam Ayyar v. Rajangam Ayyar, (1923) 69 Ind Cas 123 : (AIR 1922 PC 266) and Nani Bai v. Gita Bai, AIR (1958) SC 706. It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co- tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh. P-12 was a mere list of properties allotted to the shares of the parties.‖

84. In Chief Controlling Revenue Authority, Board of Revenue, Madras v. B.A. Mallayya, 1971(1) MLJ 177, the full bench of the Madras High Court considered the issue whether the instrument in question was a release deed or an instrument of partition. Some of the members of the joint family executed a document termed as a release deed expressing their desire to separate themselves from the joint family in consideration of they being paid by the releasees, the other members of the joint family, a certain sum by the sale of some property of the joint family. The issue arose whether the document was liable to be stamped under Article 45 of the Act as a partition deed even though it purported to be a mere release deed. The court observed as follows:

92. A comparison of the language used by the parties in the document in question in the case of Mahip Singh (supra) with that of the memorandum of family settlement in the present case shows that on facts the decision in Mahip Singh (supra) cannot be applied to the present case. In the present case the parties to the MOFS have clearly stated that the ―respective properties that have fallen into their lot...........‖ which signifies a division of the properties by partition and not by mere release. I have already analyzed hereinabove the transaction in question which shows that properties which were not even co-owned by the parties were brought in and thrown in a common hotchpotch only whereafter mutual adjustment of rights took place between the parties. Moreover, persons who were not even co- owners earlier were vested with rights and became parties to the family settlement. This aspect clearly distinguishes the present case from that of Mahip Singh (supra). Thus the argument of the counsel for the defendants that Mahip Singh's case (supra) gives a ―unique interpretation‖ to family arrangements and holds that in such a case the Document is to be charged with the lower of the duties, is in the teeth of sec.6. If the argument founded upon Mahip Singh's (supra) advanced by Mr. Banerjee were to be accepted and applied, then every partition deed would also be classified as a release under Article 55 to the Schedule of the Stamp Act. Such an interpretation would render Article 45 of Schedule 1 of the Stamp Act redundant as every partition amongst the co-owners is also a ―mutual release‖. Pertinently even this court in the subsequent decisions in B.S. Goel (supra) and Nitin Jain (supra) have not construed Mahip Singh (supra) in the manner as suggested by Mr. Banerjee. Therefore, I am of the view that Mahip Singh (supra) does not support the case of the defendants.

108. Rajender Kumar (supra) relied upon by Mr. Midha is distinguishable on its facts, inasmuch as, in that case the parties after arriving at an oral family partition had acted upon the same and "retained possession of properties which fell to their respective shares". The parties executed and registered a disclaimer agreement. It was only thereafter that the application under Order 23 Rule 3 CPC was filed before the court. It was in these facts that the court came to the conclusion that more duty was not payable as on an instrument of partition, neither on the memorandum recording oral family settlement nor on the decree passed by the court.