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SUPREME COURT OF INDIA
A.P. Sen, B.C. Ray, JJ.
Roshan Singh & Ors. - Petitioners
Versus
Zile Singh & Ors. - Respondents
Civil Appeal No. 2185 of 1987
Decided On : 24-02-1988
Code of Criminal Procedure, 1898 - Section 145 - Indian Registration Act, 1908 - Section 17 and 49 - Evidence Act, 1872 - Section 91 - Possession of Portions of Property - Suit for a declaration and injunction - Alternative for partition - Agricultural Lands - Whether plaintiffs were owners in possession of portion marked B2 as delineated in plaint map - That depends on whether document was an instrument of partition and therefore inadmissible for want of registration, or was merely a memorandum of family arrangement arrived at by parties with a view to equalisation of their shares - Appeal by special leave by defendants arises in a suit for a declaration and injunction brought by plaintiffs and in alternative for partition - They sought a declaration that they were owners in possession of portions of property delineated by letters B2, B3, B4 and B5 in plaint map which had been allotted to them in partition, and in alternative claimed partition and separate possession of their shares - Real tussel between parties is to gain control over plot in question marked B2 in plaint map, known as Buiyanwala gher - Admittedly, it was not part of ancestral property but formed part of village, of which parties were in unauthorised occupation - Held, Court held that, If 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 others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through transferor. If, on other hand, parties set up competing titles and the differences are resolved by compromise, there is no question of one deriving title from 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 - Admittedly there was a partition by metes and bounds of agricultural lands effected and shares allotted to two branches were separately mutated in revenue records - There was thus a disruption of joint status - All that remained was partition of ancestral residential house, smaller house called baithak - Document does not effect a partition but merely records nature of arrangement arrived at as regards division of remaining property - A mere agreement to divide does not require registration - But if writing itself effects a division, it must be registered - It is well-settled that document though unregistered can however be looked into for limited purpose of establishing a severance in status, though that severance would ultimately affect nature of possession held by members of separated family as co-tenants - Document can be used for limited and collateral purpose of showing that subsequent division of properties allotted was in pursuance of original intention to divide - Appeal Dismissed.
The legal analysis of the document indicates that the nature of the written instrument in question is crucial in determining its legal effect and admissibility. The document under consideration, which describes a mutual agreement and decision regarding the division of family property, is characterized as a memorandum of family arrangement rather than an instrument of partition. This distinction is significant because a partition instrument that creates or declares rights in immovable property must be registered to be legally effective. Conversely, an arrangement or agreement that merely records a past division or settlement among family members, without effecting a new transfer of interest, does not require registration (!) (!) .
The key factor is whether the document embodies a declaration of will intended to effect a partition or merely recites an arrangement already made. In this case, the language used in the document indicates a discussion and mutual decision, rather than a formal transfer of title. It records the allocation of properties and the agreement to settle rights, but does not itself operate to create or transfer ownership rights at the time of its execution (!) (!) .
Furthermore, the document can be used as evidence of the parties’ subsequent conduct and the nature of possession, but it does not constitute a legally operative partition deed. Such agreements, which merely record the terms of a prior or existing division, are not subject to the registration requirement and can be admitted for collateral purposes, such as establishing the fact of division or the intent of the parties (!) (!) .
In summary, the document is a record of a family arrangement and not an instrument of partition that requires registration. Its primary purpose is to record the parties’ mutual understanding and division of property, which can influence the character of possession and ownership, but does not itself create or transfer rights that need formal registration under the relevant property laws (!) (!) .
JUDGMENT :
1. CIVIL APPELLATE JURISDICTION: CIVIL APPEAL No. 2185 of 1987.
2. From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in R.F.A. No. 16 of 1986.
3. S.N. Kacker, Awadh Behari and A.K. Sanghi for the Appellants.
4. U.R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents.
5. The Judgment of the Court was delivered by
6. 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.
7. 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 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.
8. 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 decl
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