Roshan
Singh & Ors Vs. Zile Singh & Ors [1988] INSC 59 (24 February 1988)
Sen,
A.P. (J) 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.
HEAD NOTE:
% 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.
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.
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