LAW FOR ALL

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. % = 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. =1988 AIR 881, 1988( 2 )SCR1106, , 1988( 1 )SCALE391 ,