whether the registering authority under the Registration Act, 1908 is bound by the assessment of stamp duty made by the court as per suit valuation, is the question arising for consideration in this case.- Market value for the purpose of Indian Stamp Act, 1899 is not the same as suit valuation for the purpose of jurisdiction and court fee. - The learned Civil Judge has, thus, clearly erred in directing the registration to be done on the basis of suit valuation. The Sheristadar made a mechanical assessment of stamp duty on 1/4th share of the suit property as per the compromise and fixed the stamp duty accordingly for Rs.12,50,000/-. That does not meet the requirement under law. The Suits Valuation Act, 1887 and The Indian Stamp Act, 1899 operate in different fields. = where the registering authority has any difference of opinion as to assessment on the stamp duty of the instrument presented for registration on the orders of the court, it will only be appropriate that Registrar makes a back reference to the court concerned and the court undertakes a fresh exercise after affording an opportunity of hearing to the registering authority with regard to the proper value of the instrument for registration. The registering authority cannot be compelled to follow invariably the value fixed by the court for the purpose of suit valuation.- Accordingly, we set aside the impugned order dated 02.09.2010 of the High Court of Calcutta and order dated 30.03.2001 of the learned Civil Judge, Siliguri and order dated 27.08.2007 of Civil Judge (Senior Division), Siliguri. The court of the learned Civil Judge (Senior Division), Siliguri shall consider afresh the matter after affording an opportunity for hearing to the petitioner and pass appropriate orders with regard to the stamp duty for the purpose of registration of the partition deed. This exercise should be completed within a period of three months from the date of receipt of this order. Appeal is allowed.

' 
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._4167_/2013
[Arising out of S.L.P.(Civil) No. 22263/2011]


ADDL. DISTT. SUB-REGISTRAR SILIGURI ... PETITIONER

VERSUS

PAWAN KUMAR VERMA AND OTHERS ... RESPONDENTS



J U D G M E N T

KURIAN, J.:




Leave granted.


2. While registering an instrument of partition, 
whether the registering
authority under the Registration Act, 1908 is bound by the assessment of stamp duty made by the court as per suit valuation, is the question arising for consideration in this case.

3. Petitioner is aggrieved by the order dated 02.09.2010 of the High
Court of Calcutta passed on a petition filed by the petitioner
challenging the order passed by the Civil Judge (Senior Division) at
Siliguri on 22.08.2007. Respondents are parties to a partition suit
filed by the 1st Respondent herein before the Civil Judge (Senior
Division) at Siliguri in T.S. (Partition) No. 70 of 1999. 
The Trial
Court had directed the petitioner, who was not a party before the
court, to complete the registration on the basis of the stamp duty as
per the suit valuation. 
The suit was valued at Rs.50 lakhs for the
purpose of suit valuation. During the pendency of the suit, dispute
was compromised and, accordingly, Annexure P3 - Order dated 30.03.2001
was passed ordering:


"that the suit be and the same is decreed in final form on
compromise in terms of the joint compromise petition dated 15.11.2000
which do form part of the decree. The parties do bear their respective
costs. Parties are directed to file Stamp Papers as would be assessed
by the Sheristadar for engrossing the Final Decree and for
registration of the same. Sheristadar is directed to assess the amount of Stamp Paper over the valuation of the suit property at once.... "
(Emphasis supplied)



4. Subsequently, some clerical corrections were carried out in the order,
on 12.02.2007. When the decree was presented for registration, the
same was objected to by the petitioner observing that there is no
proper valuation for the purpose of registration. 
Aggrieved, the
plaintiff took up the matter before the Civil Judge (Senior Division)
at Siliguri leading to Annexure P6- Order. The learned
Civil Judge (Senior Division) took the view that once the value has
been fixed by the court, Registrar cannot make an attempt to reassess
the same. Aggrieved, the Additional District Sub-Registrar, Siliguri,
approached the High Court. Placing reliance on its earlier decision on
Nitya Hari Kundu and others vs. State of W.B. and others[1], the High
Court dismissed the petition and, hence, the Special Leave Petition.



5. In order to analyse disputes in proper perspective, it is necessary to
refer to the statutory provisions governing the issue.
 Indian Stamp
Act, 1899, as amended by the West Bengal, has defined 'market value'
at Section 2 (16B), which reads as follows:


"(16B)"market value" means, in relation to any property which is the
subject-matter of an instrument, the price which such property would
have fetched or would fetch if sold in open market on the date of
execution of such instrument as determined in such manner and by such
authority as may be prescribed by rules made under this Act or the
consideration stated in the instrument, whichever is higher;"
(Emphasis supplied)




6. Section 2(12) of Indian Stamp Act, 1899, as amended by the West
Bengal, has also defined 'execution' with reference to an instrument
to mean "signed" and "signature".

7. Section 47A of Indian Stamp Act, 1899, as amended by the West Bengal,
provided for the procedure for dealing with undervaluation. To the
extent relevant, the provision reads as follows: -

"47A. Instruments of conveyance, etc., under-valued, how to be
dealt with.- 
(1) Where the registering officer appointed under the
Registration Act, 1908 (16 of 1908), has, while registering any
instrument of-


(a) agreement or memorandum of any agreement relating to a sale or
lease-cum-sale of immovable property,


(b) conveyance,


(c) exchange of property,


(d) gift,


(e) partition,


(f) power-of-attorney-


(i) when given for consideration to sell any immovable property,
or


(ii) in such other cases referred to in article 48 of Schedule
IA,


where proper stamp duty is payable on the basis of market value,


(g) settlement,


(h) transfer of lease by way of assignment,


reason to believe that the market value of the property which is the
subject-matter of any such instrument has not been truly set forth in
the instrument presented for registration, he may, after receiving
such instrument, ascertain the market value of the property which is
the subject-matter of such instrument in the manner prescribed and
compute the proper stamp duty chargeable on the market value so
ascertained and thereafter he shall, notwithstanding anything to the
contrary contained in the Registration Act, 1908, in so far as it
relates to registration, keep registration of such instrument in
abeyance till the condition referred to in sub-section (2) or sub-
section (7), as the case may be, is fulfilled by the concerned person.


(2) Where the market value of the property which is the subject-matter
of an instrument has been ascertained and the proper duty chargeable
thereon has been computed under sub-section (1), the registering
officer shall, in the manner prescribed, send to the concerned person
a notice calling upon him to make payment of the deficit amount of
stamp duty within such time as may be prescribed, and if such person
makes payment of such deficit amount of stamp duty in the prescribed
manner, the registering officer shall register the instrument.


(3) Where the concerned person does not make payment of the stamp duty
as required under sub-section (2) within the time specified in the
notice issued under that sub-section, the registering authority shall
refer the matter to such authority and in such manner as may be
prescribed for determination of the market value of the property which
is the subject-matter of such instrument and the proper stamp duty
payable thereon:


(4) to (7) xxx xxx xxx xxx xxx xxx xxx




(8) (a) The authority referred to in sub-section (3) may, on receipt
of any information or otherwise, suo motu within five years from the
date of registration of any instrument, where such instrument was
registered on the basis of the market value which was set forth in the
instrument or which was ascertained by the registering officer
referred to in sub-section (1), call for and examine any such
instrument and any other document relating thereto for the purpose of
satisfying himself as to the correctness of the market value of the
property which is the subject-matter of such instrument and which was
set forth in the instrument or which was ascertained under sub-section
(2) and the stamp duty payable thereon.

(b) If, after such examination, the authority referred to in
clause (a) has reasons to believe that the market value of the
property which is the subject-matter of such instrument has not been
truly set forth in the instrument or correctly ascertained under sub-
section (2), he may, after giving the parties concerned in the
instrument a reasonable opportunity of being heard, determine the
market value of the property which is the subject-matter of such
instrument and the amount of stamp duty chargeable thereon in the
manner referred to in sub-section (5), and the difference in the
amount of stamp duty, if any, between the stamp duty so determined by
him and the stamp duty already paid by the concerned person shall be
required to be paid by him in the prescribed manner :"
(Emphasis supplied)





8. Rule 3 of The West Bengal Stamp (Prevention of Undervaluation of
Instruments) Rules, 2001 has provided for the procedure to be adopted
when there is undervaluation. To the extent relevant, the procedure
reads as follows:


3. Manner of determination of market value and furnishing of
particulars relating to any property.- (1) The market value within the
meaning of clause [16(B)] of section 2 in relation to any land or any
land with building shall, after taking into consideration the
particulars referred to in sub-rule (2), be determined on the basis of
the highest price for which sale of any land or any land with
building, of similar nature and area and in the same locality or in a
comparable locality, has been negotiated and settled during the five
consecutive years immediately proceeding the date of execution of any
instrument setting forth such market value, or on the basis of any
court decision after hearing the State Government, or on the basis of
information, report or record that may be available from any court or
any officer or authority of the Central Government or the State
Government or any local authority or local body, or on the basis of
consideration stated in such instrument for such land or land with
building, whichever is greater."
(Emphasis supplied)



9. The scheme for valuation for the purpose of registration would show
that an instrument has to be valued in terms of the market value at
the time of execution of the document. In the instant case, it appears
that there was no such valuation in the Civil
Court. The learned Civil Judge, as per annexure P3-
Order dated 30.03.2001, directed the Sheristadar to asses the amount
of stamp paper for the valuation of the suit property. The suit was
instituted in the year 1999. The same was compromised in the year
2001. The plaintiff filed stamp papers as per valuation of the
Sheristadar in the suit on 03.08.2004 and the decree was presented for
registration before the Additional Registrar on 23.05.2007. In view of
the objection raised with regard to the assessment of market value for
the purpose of registration, the plaintiff sought for clarification
leading to annexure P6-Order.

10. The High Court has placed reliance on a single bench decision in Nitya
Hari Kundu's case (supra). It was a case where the court permitted an
item of a trust property to be sold after fixing the market value.
When the Registrar refused to accept the valuation made by the court,
a writ petition was filed in the High Court where it was conceded by
the Registrar that:

"14. ...it is correct to say that a Court decision permitting a trust
estate to sell a trust property for a particular consideration, must
necessarily be accepted as a determination of the market value of the
property in the stamp rules."



11. However, the High Court also considered the matter on merits and
finally held in paragraph 13, which reads as follows: -




"13. Therefore, in interpreting the statutes if I make harmonious
construction of S. 47A read with the Rules made thereunder, it will be
read that valuation made by the Court cannot be said to be done not
truly set forth and there is any reason to disbelieve, otherwise. If
any authority does so it will tantamount to exceeding the jurisdiction
made under the law. The authority concerned cannot sit on appeal over
a Court decision unless appeal is preferred from such order which is
absent herein."




12. It appears that the learned Civil Judge and the High Court only
referred to the headnote in Nitya Hari Kundu's case
(supra), which reads as follows:




"Stamp Act (2 of 1899), S.47-A-Valuation of duty under S.47-A-
Valuation made by Court and sale deed sent for Registration S.47A is
not applicable- After determination of value by Court, it cannot be
said that there is reason for Registrar to believe that valuation is
not correctly made - Registrar is bound by that valuation and has to
act upon it."




13. The court had, in fact, fixed the market value of the property in that
case for permitting the Trust estate to put it to sale. However,
without reference to the court, it appears that the Collector made an
independent assessment and that was what was struck down by the court.
Once the court had made the exercise to fix the market value of a
property, the same can be reopened or altered only in a process known
to law. 
That is not the situation in the instant case where a
partition suit was filed in the year 1999, compromised in the year
2001, stamp value assessed on the basis of suit valuation and the
decree presented for registration in the year 2007.



14. Market value for the purpose of Indian Stamp Act, 1899 is not the same
as suit valuation for the purpose of jurisdiction and court fee. 
The
procedures are different for assessment of the stamp duty and for
registration of an instrument. The reference to the expression 'on the
basis of any court decision after hearing the State Government'
appearing in Rule 3 of The West Bengal Stamp (Prevention of
Undervaluation of Instruments) Rules, 2001, would clearly show that
the suit valuation cannot be automatically followed for the purpose ofregistration. The learned Civil Judge has, thus, clearly erred in
directing the registration to be done on the basis of suit valuation.
The Sheristadar made a mechanical assessment of stamp duty on 1/4th
share of the suit property as per the compromise and fixed the stamp
duty accordingly for Rs.12,50,000/-. That does not meet the
requirement under law.

15. The Suits Valuation Act, 1887 and The Indian Stamp Act, 1899 operate
in different fields. 
However, going by the scheme of the Act and Rules
as amended by West Bengal, we are of the view that it will only be
appropriate that in such situations
where the registering authority
has any difference of opinion as to assessment on the stamp duty of the instrument presented for registration on the orders of the court,
it will only be appropriate that Registrar makes a back reference to
the court concerned and the court undertakes a fresh exercise after
affording an opportunity of hearing to the registering authority with
regard to the proper value of the instrument for registration. 
The
registering authority cannot be compelled to follow invariably the
value fixed by the court for the purpose of suit valuation.

16. Accordingly, we set aside the impugned order dated 02.09.2010 of the
High Court of Calcutta and order dated 30.03.2001 of the learned Civil
Judge, Siliguri and order dated 27.08.2007 of Civil Judge (Senior
Division), Siliguri. 
The court of the learned Civil Judge (Senior
Division), Siliguri shall consider afresh the matter after affording
an opportunity for hearing to the petitioner and pass appropriate
orders with regard to the stamp duty for the purpose of registration of the partition deed. 
This exercise should be completed within a
period of three months from the date of receipt of this order. Appeal
is allowed.

17. There is no order as to costs.


.................................J.
(G.S. SINGHVI)



.................................J.
(KURIAN JOSEPH)
New Delhi;
May 1, 2013.
ITEM NO.1B COURT NO.4 SECTION XVI
[FOR JUDGMENT]

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).22263/2011

(From the judgement and order dated 02/09/2010 in CO No.689/2008 of The
HIGH COURT OF CALCUTTA)

ADDL. DISTT. SUB-REGISTRAR SILIGURI Petitioner(s)

VERSUS

PAWAN KUMAR VERMA & ORS. Respondent(s)


Date: 01/05/2013 This Petition was called on for
judgment today.


For Petitioner(s) Mr. Joydeep Mazumdar, Adv.
Mr. Avijit Bhattacharjee,Adv.

For Respondent(s)
Mr. V.N. Raghupathy,Adv.

Hon'ble Mr. Justice Kurian Joseph pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice G.S. Singhvi and His
Lordship.
Leave granted.


Appeal is allowed in terms of the reportable judgment.

|(Rajesh Dham) | | (Renu Diwan) |
|Court Master | |Court Master |


(signed reportable judgment is placed on the file)



-----------------------
[1] AIR 2001 Calcutta 76

-----------------------
REPORTABLE


-----------------------
12

Registration Act, 1908: s.49, proviso - Unregistered sale deed is admissible in evidence in a suit for specific performance of the contract - Evidence Act, 1872 - Specific performance - Transfer of property Act, 1882. The question which arose for consideration in the present appeal was whether the courts below erred in holding that an unregistered sale deed was not admissible in evidence in a suit for specific performance of the contract. =Allowing the appeal, the Court HELD: The Trial Court erred in not admitting the unregistered sale deed in evidence in view of the proviso to Section 49 of the Registration Act, 1908 and the High Court ought to have corrected the said error by setting aside the order of the trial court. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act. [Paras 8, 11, 16] [519-C-D; 521-A-E; 525-B] K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564, relied on. Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy (1999) 7 SCC 114, referred to. Case Law Reference: (2008) 8 SCC 564 relied on Para 12 (1999) 7 SCC 114 referred to Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3192 of 2010. From the Judgment & Order dated 13.11.2008 of the High Court of Judicature at Madras in C.R.P.(PD) No. 261 of 2008. K.V. Vishwanathan, B. Rajunath, Vijay Kumar for the Appellant. T.S.R. Venkatramana, G.S. Mani, R. Satish for the Respondents.

                                                    REPORTABLE






                IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


                  CIVIL APPEAL NO. 3192 OF 2010
              [Arising out of SLP (C) No. 1451 of 2009]




S. Kaladevi                                         .... Appellant


                                 Vs.


V.R. Somasundaram & Ors.                          ....Respondents








                               JUDGMENT






R.M. LODHA,J.




              Leave granted.


2.            The short question is one of admissibility of an


unregistered sale deed in a suit for specific performance of the


contract.


3.            The appellant and the respondents are plaintiff and


defendant nos. 1, 2 and 3 respectively in the suit presented in the


Court of Subordinate Judge, Gobichettipalayam. The plaintiff in


the suit claimed for the reliefs of directing the    defendants to


                                                                 1
execute a fresh sale deed with regard to the suit property in


pursuance of an agreement for sale dated 27.02.2006 on or before


the date that may be fixed by the court and failing which execution


of the sale deed by the court.        She also prayed for grant of


permanent injunction restraining the defendants from disturbing


with her peaceful possession and enjoyment of the suit property.


4.            According to the plaintiff, 1st defendant for himself, as


the guardian father of 3rd defendant and 2nd defendant jointly


entered into an oral agreement with her on 27.02.2006 to sell the


suit property for a consideration of Rs. 1,83,000/-. It was agreed


that the sale deed, in pursuance of the oral agreement for sale,


would be executed and registered on the same day. The plaintiff


purchased the stamp papers; paid the entire sale consideration to


the defendants; the defendants put the plaintiff in possession of


the suit property and also executed a sale deed in her favour. On


27.02.2006 itself,     the said sale deed was taken to the Sub-


Registrar's office. The Sub-Registrar, however, informed that in


view of an order of attachment of the suit property the sale deed


could not be registered.        The sale deed, thus, could not be


registered.       The defendant nos. 1 and 2 then promised the


plaintiff that they would amicably settle the matter with the


concerned party who had obtained attachment of the suit property


                                                                    2
and get the sale deed registered no sooner the attachment was


raised. The plaintiff averred that she called upon the defendants to


get the sale deed registered, but the defendants avoided the same


by putting forth the reason that attachment in respect of the suit


property was subsisting.      On 04.02.2007 however, the plaintiff


called upon defendant nos. 1 and 2 to cooperate in getting the sale


deed registered, but instead of doing that            the defendants


attempted to interfere with her possession and enjoyment of the


suit property necessitating action by way of suit.


5.          The 1st defendant filed written statement and traversed


plaintiff's case. He denied having entered into an oral agreement


for sale with the plaintiff for himself and as a guardian father of 3rd


defendant and the 2nd defendant jointly on 27.02.2006 as alleged.


He also denied having delivered physical possession of the suit


property to the plaintiff. The 1st defendant set up the defence that


he   had   taken    loan   from   one    Subramaniam      and    when


Subramaniam demanded the repayment thereof, he approached


plaintiff and requested her to lend Rs. 1,75,000/- as loan. Upon


plaintiff's insistence that 1st defendant should execute an


agreement for sale in her favour, he and the 2nd defendant signed


the document believing that to be agreement for sale on


27.02.2006 and went to the office of Sub-Registrar for getting the


                                                                    3
agreement for sale registered. However, when the Sub-Registrar


asked the 1st defendant whether the consideration has been


received and sale deed could be registered, he and the 2nd


defendant learnt that plaintiff had fraudulently obtained the


signatures on sale deed by falsely stating that it was only an


agreement for sale and hence they went away refusing to agree


for the registration of the said document.


6.          On the basis of the pleadings of the parties, the issues


were struck.    It appears that on 05.12.2007 at the time of


examination of PW. 1,          the unregistered sale deed dated


27.02.2006 was tendered for being marked. The counsel for the


defendants objected to the said document being admitted in


evidence being an unregistered sale deed. The trial court by its


order dated 11.12.2007 sustained the objection and refused to


admit the sale deed in evidence.


7.          The plaintiff unsuccessfully challenged the order of the


trial court dated 11.12.2007 by filing revision petition before the


High Court and hence this appeal by special leave.


8.          After having heard Mr. K. V. Vishwanathan, learned


senior counsel for the appellant and Mr. T.S.R. Venkatramana,


learned counsel for the respondents, we are of the opinion that


having regard to the proviso to Section 49 of the Registration Act,


                                                                  4
1908 (for short, `1908 Act'), the trial court erred in not admitting the


unregistered sale deed dated 27.02.2006 in evidence and the High


Court ought to have corrected the said error by setting aside the


order of the trial court.


9.           Mr. T.S.R. Venkatramana, learned counsel for the


respondents, however, strenuously urged that 1908 Act is a


complete code by itself and is a special law and, therefore, any


dispute regarding the registration, including the refusal to register


by any party, is covered by the provisions of that Act and the


remedy can be worked out under it only.       He referred to Sections


71 to 77 of the 1908 Act and submitted that refusal to register a


document by a party is exhaustively dealt with by the said


provisions and the provisions of the Specific Relief Act, 1963 (for


short, `1963 Act') cannot be and should not be invoked in a case of


failure to register a document which is complete in other respects,


except for want of registration.          Learned counsel for the


respondents submitted that the defendants           refused to admit


execution of the said document before the concerned Sub-


Registrar because of the fraud played by the appellant (plaintiff)


inasmuch as instead of writing an agreement to sell, she got


executed a full fledged sale deed contrary to the agreement and


understanding.     The defendants accordingly walked out of the


                                                                     5
office of Sub-Registrar without admitting the execution of the sale


deed and under these circumstances the only remedy available to


the appellant was to get an endorsement "registration refused" and


then file an application before the Registrar under Section 73 of


the 1908 Act.      He also referred to Section 3 of 1963 Act and


submitted that the provisions of 1963 Act would not override the


provisions of 1908 Act.


10.         Section 17 of 1908 Act is a disabling section.           The


documents defined in clauses (a) to (e) therein require registration


compulsorily.     Accordingly, sale of immovable property of the


value of Rs. 100/- and more requires compulsory registration. Part


X of the 1908 Act deals with the effects of registration and non-


registration.   Section 49 gives teeth to Section 17 by providing


effect of non-registration of documents required to be registered.


Section 49 reads thus:






            "S.49.- Effect of non-registration of documents
            required to be registered.- No document required
            by section 17 or by any provision of the Transfer of
            Property Act, 1882 (4 of 1882), to be registered shall
            -


            (a)      affect any immovable property comprised
                     therein, or


            (b)      confer any power to adopt, or








                                                                      6
          (c)      be received as evidence of any transaction
                    affecting such property or conferring such
                    power,




           unless it has been registered:


                  Provided that an unregistered document
           affecting immovable property and required by this
           Act or the Transfer of Property Act, 1882 (4 of 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 (3 of
           1877), or as evidence of any collateral transaction
           not required to be effected by registered instrument."






11.        The main provision in Section 49 provides that any


document which is required to be registered, if not registered, shall


not affect any immovable property comprised therein nor such


document shall be received as evidence of any transaction


affecting such property. Proviso, however, would show that an


unregistered document affecting immovable property and required


by 1908 Act or the Transfer of Property Act, 1882 to be registered


may be received as an evidence to the contract in a suit for


specific performance or as evidence of any collateral transaction


not required to be effected by registered instrument. By virtue of


proviso, therefore, an unregistered sale deed of an immovable


property of the value of Rs. 100/- and more could be admitted in


evidence as evidence of a contract in a suit for specific


performance of the contract. Such an unregistered sale deed can
                                                                    7
also be admitted in evidence as an evidence of any collateral


transaction not required to be effected by registered document.


When an unregistered sale deed is tendered in evidence, not as


evidence of a completed sale, but as proof of an oral agreement of


sale, the deed can be received in evidence making an


endorsement that it is received only as evidence of an oral


agreement of sale under the proviso to Section 49 of 1908 Act.






12.               Recently in the case of K.B. Saha and Sons Private


Limited v. Development Consultant Limited1, this Court noticed the


following statement of Mulla in his Indian Registration Act, 7th


Edition, at page 189:-








                  "......The     High Courts of Calcutta, Bombay,
                  Allahabad, Madras, Patna, Lahore, Assam, Nagpur,
                  Pepsu, Rajasthan, Orissa, Rangoon and Jammu &
                  Kashmir; the former Chief Court of Oudh; the Judicial
                  Commissioner's Court at Peshawar, Ajmer and
                  Himachal Pradesh and the Supreme Court have held
                  that a document which requires registration under
                  Section 17 and which is not admissible for want of
                  registration to prove a gift or mortgage or sale or
                  lease is nevertheless admissible to prove the
                  character of the possession of the person who holds
                  under it......"








1
    (2008) 8 SCC 564
                                                                          8
This Court then culled out the following principles:-




                  "1.   A document required to be registered, if
                        unregistered is not admissible into evidence
                        under Section 49 of the Registration Act.


                  2.    Such unregistered document can however be
                        used as an evidence of collateral purpose as
                        provided in the proviso to Section 49 of the
                        Registration Act.


                  3.    A collateral transaction must be independent
                        of, or divisible from, the transaction to effect
                        which the law required registration.


                  4.    A collateral transaction must be a transaction
                        not itself required to be effected by a
                        registered document, that is, a transaction
                        creating, etc. any right, title or interest in
                        immovable property of the value of one
                        hundred rupees and upwards.


                  5. If a document is inadmissible in evidence for want
                     of registration, none of its terms can be admitted
                     in evidence and that to use a document for the
                     purpose of proving an important clause would not
                     be using it as a collateral purpose."






To the aforesaid principles, one more principle may be added,


namely, that a document required to be registered, if unregistered,


can be admitted in evidence as evidence of a contract in a suit for


specific performance.






13.               In Kalavakurti Venkata Subbaiah v. Bala Gurappagari


Guruvi Reddy2, the question presented before this Court was


2
    (1999) 7 SCC 114
                                                                           9
whether a decree to enforce the registration of sale deed could be


granted. That was a case where respondent therein filed a suit for


specific performance seeking a direction to register the sale deed.


The contention of the appellant, however, was that decree for


specific performance based on unregistered sale deed could not


be granted. This Court noticed the provisions contained in Part XII


of 1908 Act, particularly Section 77, and difference          of opinion


between the various High Courts on the aspect and observed:-


             "The difference of opinion amongst the various
             High Courts on this aspect of the matter is that
             Section 77 of the Act is a complete code in itself
             providing for the enforcement of a right to get a
             document registered by filing a civil suit which but
             for the special provision of that section could not be
             maintainable. Several difficulties have been
             considered in these decisions, such as, when the
             time has expired since the date of the execution of
             the document whether there could be a decree to
             direct the Sub-Registrar to register the document.
             On the other hand, it has also been noticed that an
             agreement for transfer of property implies a
             contract not only to execute the deed of transfer
             but also to appear before the registering officer and
             to admit execution thereby facilitating the
             registration of the document wherever it is
             compulsory. The provisions of the Specific Relief
             Act and the Registration Act may to a certain extent
             cover the same field but so that one will not
             supersede the other. Where the stage indicated in
             Section 77 of the Act has reached and no other
             relief except a direction for registration of the
             document is really asked for, Section 77 of the Act
             may be an exclusive remedy. However, in other
             cases it has no application, inasmuch as a suit for
             specific performance is of a wider amplitude and is
             primarily one for enforcement of a contract and
             other consequential or further relief. If a party is
             seeking not merely the registration of a sale deed,
                                                                      10
            but also recovery of possession and mesne profits
             or damages, a suit under Section 77 of the Act is
             not an adequate remedy."






14.         This Court then held that the first appellate court rightly


took the view that under Section 49 of the 1908 Act, unregistered


sale deed could be received in evidence to prove the agreement


between the parties though it may not itself constitute a contract to


transfer the property. It was held:






            "......The document has not been presented by the
            respondent to the Sub-Registrar at all for registration
            although the sale deed is stated to have been
            executed by the appellant as he refuses to cooperate
            with him in that regard. Therefore, various stages
            contemplated under Section 77 of the Act have not
            arisen in the present case at all. We do not think, in
            such a case when the vendor declines to appear
            before the Sub-Registrar, the situation contemplated
            under Section 77 of the Act would arise. It is only on
            presentation of a document the other circumstances
            would arise. The first appellate court rightly took the
            view that under Section 49 of the Act the sale deed
            could be received in evidence to prove the
            agreement between the parties though it may not
            itself constitute a contract to transfer the property.....
            ".






15.          The issue before us is only with regard to the


admissibility of unregistered sale deed dated 27.2.2006 in


evidence and, therefore, it is neither appropriate nor necessary for


us to consider the contention raised by learned counsel for the




                                                                         11
respondents about the maintainability of suit as framed by the


plaintiff or the circumstances in which the sale deed was executed.


If any issue in that regard has been struck by the trial court,


obviously, such issue would be decided in accordance with law.


Suffice, however, to say that looking to the nature of the suit, which


happens to be a suit for specific performance, the trial court was


not justified in refusing to admit the unregistered sale deed dated


27.2.2006 tendered by the plaintiff in evidence.


16.         The argument of learned counsel for the respondents


with regard to Section 3(b) of 1963 Act is noted to be rejected.


We fail to understand how the said provision helps the


respondents as the said provision provides that nothing in 1963


Act shall be deemed to affect the operation of 1908 Act, on


documents.     By admission of an unregistered sale deed in


evidence in a suit for specific performance as evidence of contract,


none of the provisions of 1908 Act is affected; rather court acts in


consonance with proviso appended to Section 49 of 1908 Act.


17.         The result is that appeal is allowed, the order of the


High Court dated 13.11.2008 and that of the trial court dated


11.12.2007 are set aside.         The trial court shall mark the


unregistered sale deed dated 27.2.2006 tendered by the plaintiff in








                                                                    12
her evidence and proceed with the suit accordingly.        The parties


shall bear their own costs.






                                     ....................................J.
                                        [R.V. RAVEENDRAN]








                                     ....................................J.
                                              [R.M. LODHA]




NEW DELHI
APRIL 12, 2010.








                                                                        13

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 ,

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
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 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