PETITIONER:
ROSHAN SINGH & ORS.
Vs.
RESPONDENT:
ZILE SINGH & ORS.
DATE OF JUDGMENT24/02/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1988 AIR 881 1988 SCR (2)1106
1988 SCALE (1)391
ACT:
Registration Act, 1908: SS. 17(1)(b) & 49: Partition-
Document containing list of properties allotted to parties-
Recital of past events-Registration whether necessary-
Whether admissible in evidence to prove factum of partition.
HEADNOTE:
%
The parties are decendants of a common ancestor, who
had two sons. These two branches of the family had joint
properties, both agricultural and residential. The
agricultural land was partitioned in 1955 and the names of
the respective parties were duly mutated in the revenue
records. This was followed by a partition of their
residential properties including the house, ghers, ghetwars
etc. The factum of partition was embodied in the memorandum
of partition Exh. B-12 dated August 3, 1955 and bears the
thumb impressions and signatures of the heads of the
families, and later confirmed in the settlement dated
January 31, 1971, Exh. P-1 written in the presence of a
number of villagers.
A dispute arose between the parties in February, 1971
when the respondents were sought to be prevented by the
appellants from raising a boundary wall to a plot of land
that had fallen to their share. In proceedings under s. 145
Cr. P.C., 1898, the Sub-Divisional Magistrate held that the
father of the appellants was in actual possession of the
disputed piece of land. In revision the Sessions Judge
agreed with the conclusion arrived at by the Magistrate. On
further revision the High Court affirmed the findings
reached by the courts below.
In a suit for declaration brought by respondents a
Single Judge of the High Court came to the conclusion that
the disputed plot belonged to them and it had fallen to
their share in the partition of 1955 and later confirmed in
the settlement dated 31st January, 1971. He construed the
document Exh. p-12 to be a memorandum of family arrangement
and not an instrument of partition requiring registration
and therefore admissible in evidence under the proviso to s.
49 of the Act for a collateral purpose of showing nature of
possession. In a Letters Patent appeal a Division Bench of
the High Court affirmed the reasoning and
1107
conclusion arrived at by the Single Judge.
In the appeal by special leave, it was contended for
the appellants that the document Exh. P-12 does not contain
any recital of a prior, completed partition but on its terms
embodies a decision which is to be the sole repository of
the right and title of the parties i.e. according to which
partition by metes and bounds had to be effected. It,
therefore, required registration under s. 17 of the
Registration Act.
Dismissing the appeal,
^
HELD: 1. Partition, unlike the sale or transfer which
consists in its essence of a single act, is a continuing
state of facts. It does not require any formality, and
therefore if parties actually divide their estate and agree
to hold in severalty, there is an end of the matter. [1115B-
C]
2. 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. it is assumed
that the title had always resided in him or her so far as
the property falling to his or her share is concerned and
therefore no conveyance is necessary. [1116C-E]
Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr.,
[1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr.,
LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. Mewa
Koonwar, [1868] 3 Agra HC 82 at p. 84 refereed to.
In the instant case, admittedly there was a partition
by metes and bounds of the agricultural lands effected in
the year 1955 and the shares allotted to the two branches
were separately mutated in the revenue records. There was
thus a disruption of joint status. All that remained was the
partition of the ancestral residential house called
rihaishi, the smaller house called baithak and
ghers/ghetwars. 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. The parties set out competing claims to the
properties and there
1108
was an adjustment of the rights of the parties. The
compromise was on the footing that there was an antecedent
title of the parties to the properties and the settlement
acknowledged and defined title of each of the parties. The
opening words of the document are: 'Today after discussion
it has been mutually agreed and decided that ...' what
follows is a list of properties allotted to the respective
parties. From these words it is quite obvious that the
document contains the recital of the past events and does
not itself embody the expression of will necessary to effect
the change in the legal relation contemplated. It cannot,
therefore, be construed to be an instrument of partition.
[1116F-G; 1114C-D]
Section 17(1)(b) of the Registration Act 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 rights in immovable property. Therefore, a mere
recital of what has already taken place could not be held to
declare any right and there would be no necessity of
registering such a document. [1113H; 1114A]
Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123
and Nani Bai v. Gita Bai, AIR (1958) SC 706 referred to.
3. A document though unregistered can, however, be
looked into under the proviso to s. 49 of the Act which
allows documents which would otherwise be excluded, to be
used as evidence of any collateral transaction not required
to be effected by a registered instrument, 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. [1116G-H;
1117A]
Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285
referred to.
4. In any view, the document Exh. P-12 is a mere list
of properties allotted to the shares of the parties. It
merely contains the recital of past events. It is,
therefore, admissible in evidence. [1117B]
Narayan Sakharam Patil v. Cooperative Central Bank,
Malkapur & Ors., ILR (1938) Nag. 604; Bageshwari Charan
Singh v. Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian
v. Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil v.
Namdeo Bhagwanji Patil & Ors., ILR
1109
(1942) Nag. 73 and Mulla's Registration Act, 8th Edn. pp.
54-57 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: CIVIL APPEAL No. 2185 of
1987.
From the Judgment and Order dated 4th August 1986 of
the High Court of Delhi in R.F.A. No. 16 of 1986.
S.N. Kacker, Awadh Behari and A.K. Sanghi for the
Appellants.
U.R. Lalit, R.S. Hegde and K.R. Nagaraja for the
Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave by the defendants
arises in a suit for a declaration and injunction brought by
the plaintiffs and in the alternative for partition. They
sought a declaration that they were the owners in possession
of the portions of the property delineated by letters B2,
B3, B4 and B5 in the plaint map which had been allotted to
them in partition, and in the alternative claimed partition
and separate possession of their shares. The real tussel
between the parties is to gain control over the plot in
question marked B2 in the plaint map, known as Buiyanwala
gher. Admittedly, it was not part of the ancestral property
but formed part of the village abadi, of which the parties
were in unauthorised occupation. The only question is
whether the plaintiffs were the owners in possession of the
portion marked B2 as delineated in the plaint map. That
depends on whether the document Exh. P-12 dated 3rd August,
1955 was an instrument of partition and therefore
inadmissible for want of registration under s. 49 of the
Indian Registration Act, 1908, or was merely a memorandum of
family arrangement arrived at by the parties with a view to
equalisation of their shares.
The facts giving rise to this appeal are that the
plaintiffs who are four brothers are the sons of Soonda.
They and the defendants are the descendants of the common
ancestor Chattar Singh who had two sons Jai Ram and Ram Lal.
Soonda was the son of Ram Lal and died in 1966. Jai Ram in
turn had two sons Puran Singh and Bhagwana. The latter died
issueless in 1916-17. Puran Singh also died in the year 1972
and the defendants are his widow, three sons and two
daughters. It is not in dispute that the two branches of the
family had joint ancestral properties, both agricultural and
residential in Village Nasirpur, Delhi
1110
Cantonment. The agricultural land was partitioned between
Puran Singh and Soonda in 1955 and the names of the
respective parties were duly mutated in the revenue records.
This was followed by a partition of their residential
properties including the house, gher/ghetwar etc. The factum
of partition was embodied in the memorandum of partition
Exh. P-12 dated 3rd August, 1955 and bears the thumb
impressions and signatures of both Puran Singh and Soonda.
In terms of this partition, the ancestral residential house
called rihaishi and the open space behind the same shown as
portions marked A1 and A2 in the plaint map Exh. PW 25/1,
fell to the share of Puran Singh. Apart from this, Puran
Singh was also allotted gher shown as A3 in the plaint map
admeasuring 795 square yards. Thus, the total area falling
to the share of Puran Singh came to 2417 square yards. The
plaintiffs' ancestor Soonda on his part got a smaller house
called baithak used by the male members and visitors, warked
B1 in the plaint map having an area of 565 square yards.
Apart from the house marked B1, Soonda also got ghers marked
B2 to B5, demarcated in yellow in the plaint map and thus
the total area got by Soonda also came to 2417 square yards.
In terms of this partition, the plaintiffs claim that
the parties have remained in separate exclusive possession
of their respective properties. However, in February 1971
the plaintiffs wanted to raise construction over the gher
marked B2 in the plaint map and started constructing a
boundary wall. Defendants no. 1-3, sons of Puran Singh,
however demolished the wall as a result of which proceedings
under s. 145 of the Code of Criminal Procedure, 1898 were
drawn against both the parties about this property. The Sub
Divisional Magistrate, Delhi Cantt, New Delhi by her order
dated 26th April, 1972 declared that the second party,
namely Puran Singh, father of defendants nons. 1-3, was in
actual possession of the disputed piece of land marked B2 on
the date of the passing of the preliminary order and within
two months next before such date and accordingly directed
delivery of possession thereof to him until evicted in due
course of law. On revision, the Additional Sessions Judge,
Delhi by order dated 4th March, 1974 agreed with the
conclusions arrived at by the learned Sub Divisional
Magistrate. On further revision, a learned Single Judge
(M.R.A. Ansari, J.) by his order dated 6th Agust, 1975
affirmed the findings reached by the Courts below on
condition that while party no. 2 Puran Singh would remain in
possession of the property in dispute, he would not make any
construction thereon. The plaintiffs were accordingly
constrained to bring the suit for declaration and injunction
and in the alternative, for partition.
1111
After an elaborate discussion of the evidence adduced
by the parties, the learned Single Judge (D.R. Khanna, J.)
by his judgment dated April 18, 1980 came to the conclusion,
on facts, that the plaintiffs were the owners in possession
of the property marked as B1, a smaller house known as
baithak, and the disputed plot B2, and the properties,
marked as A1, the ancestral residential house called
rihaishi and A2, the open space behind the same, belonged to
the defendants. Taking an overall view of the evidence of
the parties in the light of the circumstances, the learned
Single Judge came to the conclusion that the gher marked B2
belonged to the plaintiffs and it had fallen to their share
in the partition of 1955 and later confirmed in the
settlement dated 31st January 1971. In coming to that
conclusion, he observed:
"I have little hesitation that the portions marked
A-1 and A-2 and B-1 and B-2 were ancestral
residential houses of Ghers of the parties and
Soonda and Puran had equal share in them. The
residential house shown as A-1 and the open space
behind that marked as A-2 were admittedly given to
Puran in the partition of 1955. Similarly B-1 was
allotted to Soonda. I am unable to hold that B-2
was also allotted to Puran. This would have been
wholly unequitable and could not have by any
stretch reflected the equal division of these
joint properties. Puran in that case apart from
getting the residential house for which he paid
Rs.3,000 to Soonda would have also got far area in
excess if defendants' case that Gher B-2 also
belongs to them is accepted. In any natural and
equitable division of the properties, that
allotment of the residential house marked 'A' and
the open space behind the same to Puran, Baithak
B-1 and Gher No. 2 could have been naturally been
given to Soonda. That it was actually done so,
gets clarified in the document Ex. P1 dated
31.1.1971 which was written in the presence of a
number of villagers between Puran and Soonda."
The learned Judge went on to say that the document Exh. P-12
was executed by Puran Singh and Soonda in the presence of
the villagers who attested the same, and there was some
sanctity attached to it. What is rather significant is that
Puran Singh was required to pay Rs.3,000 as owelty money for
equalisation of shares.
Aggrieved, the defendants preferred an appeal under cl.
10 of the Letters Patent. A Division Bench of the High Court
(D.K. Kapur,
1112
CJ. and N.N. Goswamy, J.) by its judgment dated 4th August,
1986 affirmed the reasoning and conclusion arrived at by the
learned Single Judge and accordingly dismissed the appeal.
Both the learned Single Judge as well as the Division Bench
have construed the document Exh. P-12 to be a memorandum of
family arrangement and not an instrument of partition
requiring registration and therefore admissible in evidence
under the proviso to s. 49 of the Act, and have referred to
certain decisions of this Court in support of that
conclusion.
In support of the appeal, Shri S.N., Kacker, learned
counsel for the appellants has mainly contended that the
document Exh. P-12 is an instrument of partition and
therefore required registration under s. 17 of the Act. It
is urged that the High Court has on a misconstruction of the
terms wrongly construed it to be a memorandum of family
arrangement and admissible for the collateral purpose of
showing nature of possession under the proviso to s. 49 of
the Act. In substance, the submission is that the document
does not contain any recital of a prior, completed partition
but on its terms embodies a decision which is to be the sole
repository of the right and title of the parties i.e.
according to which partition by metes and bounds had to be
effected. We regret, we find it rather difficult to accept
the contention.
In order to deal with the point involved, it is
necessary to reproduce the terms of the document Exh. P-12
which read:
"Today after discussions it has been mutually
agreed and decided that house rihaishi
(residential) and the area towards its west which
is lying open i.e. the area on the back of
rihaishi (residential) house has come to the share
of Chaudhary Pooran Singh Jaildar.
2. House Baithak has come to the share of
Chaudhary Soonda. The shortage in area as compared
to the house rihaishi and the open area referred
to will be made good to Chaudhary Soonda from the
filed and gitwar in the eastern side.
3. Rest of the area of the field and gitwar
will be half and half of each of co-shares. The
area towards west will be given to Chaudhary
Pooran Singh and towards east will be given to
Chaudhary Soonda.
4. Since house rihaishi has come to the share
of
1113
Chaudhary Pooran Singh therefore he will pay
Rs.3000 to Chaudhary Soonda.
5. A copy of this agreement has been given to
each of the co-shares.
D/-3.8. 1955
Sd/- in Hindi LTI
Pooran Singh Zaildar Ch. Soonda."
According to the plain terms of the document Exh. P-12,
it is obvious that it was not an instrument of partition but
merely a memorandum recording the decision arrived at
between the parties as to the manner in which the partition
was to be effected. The opening words of the document Exh.
P-12 are: 'Today after discussion it has been mutually
agreed and decided that .....'. What follows is a list of
properties allotted to the respective parties. From these
words, it is quite obvious that the document Exh. P-12
contains the recital of past events and does not itself
embody the expression of will necessary to effect the change
in the legal relation contemplated. So also the Panch
Faisala Exh. P-1 which confirmed the arrangement so arrived
at, opens with the words 'Today on 31.1.1971 the following
persons assembled to effect a mutual compromise between
Chaudhary Puran Singh and Chaudhary Zile Singh and
unanimously decided that .....'. The purport and effect of
the decision so arrived at is given thereafter. One of the
terms agreed upon was that the gher marked B2 would remain
in the share of Zile Singh, representing the plaintiffs.
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
1114
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.
The tests for determining whether a document is an
instrument of partition or a mere list of properties, have
been laid down in a long catena of decisions of the Privy
Council, this Court and the High Courts. The question was
dealt with by Vivian Bose, J. in Narayan Sakharam Patil v.
Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag.
604. Speaking for himself and Sir Gilbert Stone, CJ. the
learned Judge relied upon the decisions of the Privy Council
in Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59
IA 130 and Subramanian v. Lutchman LR (1923) 15 IA 77 and
expressed as follows:
"It can be accepted at once that mere lists of
property do not form an instrument of partition
and so would not require registration, but what we
have to determine here is whether these documents
are mere lists or in themselves purport to
'create, declare, assign, limit of extinguish
..... any right, title or interest' in the
property which is admittedly over Rs. 100 in
value. The question is whether these lists merely
contain the recital of past events or in
themselves embody the expression of will necessary
to effect the change in the legal relation
contemplated."
Sir Gilbert Stone, CJ speaking for himself and Vivian Bose,
J. in Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors.,
ILR (1942) Nag. 73 reiterated the same principle. See also:
order cases in Mulla's Registration Act at pp. 56-57.
Even otherwise, the document Exh. P-12 can be looked
into under the proviso to s. 49 which allows documents which
would
1115
otherwise be excluded, to be used as evidence of 'any
collateral transaction not required to be effected by a
registered instrument'. In Varada Pillai v. Jeevarathnammal,
LR (1919) 46 IA 285 the Judicial Committee of the Privy
Council allowed an unregistered deed of gift which required
registration, to be used not to prove a gift 'because no
legal title passed' but to prove that the donee thereafter
held in her own right. We find no reason why the same rule
should not be made applicable to a case like the present.
Partition, unlike the sale or transfer which consists
in its essence of a single act, is a continuing state of
facts. It does not require any formality, and therefore if
parties actually divide their estate and agree to hold in
severalty, there is an end of the matter.
On its true construction, the document Exh. P-12 as
well as the subsequent confirmatory panch faisala Exh- P-1
merely contain the recitals of a past event, namely, a
decision arrived at between the parties as to the manner in
which the parties would enjoy the distinct items of joint
family property in severalty. What follows in Exh. P-12 is a
mere list of properties allotted at a partition and it
cannot be construed to be an instrument of partition and
therefore did not require registration under s. 17(1)(b) of
the Act. That apart, the document could always be looked
into for the collateral purpose of proving the nature and
character of possession of each item of property allotted to
the members.
The matter can be viewed from another angle. The true
and intrinsic character of the memorandum Exh. P-12 as later
confirmed by the panch faisla Exh P-1 was to record the
settlement of family arrangement. The parties set up
competing claims to the properties and there was an
adjustment of the rights of the parties. By such an
arrangement, it was intended to set at rest competing claims
amongst various members of the family to secure peace and
amity. The compromise was on the footing that there was an
antecedent title of the parties to the properties and the
settlement acknowledged and defined title of each of the
parties. The principle governing this was laid down by the
Judicial Committee in Khunni Lal v. Gobind Krishna Narain &
Anr., LR (1911) 38 IA 87. Ameer Ali, J. delivering the
judgment of the Privy Council quoted with approval the
following passage from the judgment in Lalla Oudh Behari
Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84:
"The true character of the transaction appears to
us to have
1116
been a settlement between the several members of
the family of their disputes, each one
relinquishing all claim in respect of all property
in dispute other than that falling to his share,
and recognizing the right of the others as they
had previously asserted it to the portion allotted
to them respectively. It was in this light, rather
than as conferring a new distinct title on each
other, that the parties themselves seem to have
regarded the arrangement, and we think that it is
the duty of the Courts to uphold and give full
effect to such an arragement."
This view was adopted by the Privy Council in
subsequent decisions and the High Courts in India. To the
same effect is the decision of this Court in Sahu Madho Das
& Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22. 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. As pointed out
by this Court in Sahu Madho Das' case, it is assumed that
the title had always resided in him or her so far as the
property falling to his or her share is concerned and
therefore no conveyance is necessary.
In the present case, admittedly there was a partition
by metes and bounds of the agricultural lands effected in
the year 1955 and the shares allotted to the two branches
were separately mutated in the revenue records. There was
thus a disruption of joint status. All that remained was the
partition of the ancestral residential house called
rihaishi, the smaller house called baithak and
ghers/ghetwars. 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, LR (1923) 69 IA 123 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
1117
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.
In the result, the appeal fails and is dismissed with
costs.
P.S.S. Appeal dismissed.
1118
