A family settlement which is reduced in writing does not require any registration if it merely recites that there has in time past been a partition, but if it is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction, it requires registration.

PANKAJ BHANDARI, J.

1. The petitioner has preferred this writ petition aggrieved by the order dated 03.03.2015 passed by learned Additional District Judge, Ratangarh (Churu) in Civil Suit No.04/2011 vide which application filed by the non-petitioner/defendant was allowed and the so-called family settlement was not taken on record in evidence.

2. It is contended by counsel for the petitioner that the petitioner earlier filed a suit for partition but the same was rejected by the court under Order 7 Rule 11 CPC on the ground that partition has already taken place and no cause of action is available to the plaintiff-petitioner. It is contended that after dismissal of the suit, since the same was dismissed on the ground that partition has taken place, plaintiff-petitioner filed the present suit for possession wherein the court has refused to take in evidence, the family settlement on the ground that the same is unstamped and unregistered document. It is contended that a family settlement which is reduced in writing does not require any registration and the same is required to be taken on record.

4. Counsel for the petitioner has placed reliance on:-

1. 2011(4) Civil Court Cases 245 (M.P.) Suresh Kumar Agarwal & Ors. v. State of M.P. & Anr.

2. 2000 DNJ (Raj.) 804 Mohan leelani v. Smt. Pevi Bai & Ors.

3. 2010(1) DNJ (Raj.) 371 Ram Singh v. Smt. Kesar Kanwar & Ors.

4. 2012(3) Civil Court Cases 388 (A.P.) Bandikatla Padmavathi v. Bandikatla Veera Brahma Chari & Ors.

The crux of the above-cited rulings is that if a memorandum of partition acknowledging earlier oral partition by metes and bounds is made, the same does require registration.

5. It is contended by counsel for the petitioner that the present document referred to an earlier settlement wherein father of the petitioner partitioned the property amongst his two sons and both the sons on the basis of the said partition were put in possession of their respective shares. It is further contended that as the suit for partition has been rejected, the petitioner would become remedy-less, if the family settlement is taken in evidence.

6. Counsel for the defendant non-petitioner has opposed the prayer. His contention is that the property is a self-acquired property belonging to the father of the parties. The property of Shri Devi Dutt Ji Verma could be partitioned amongst two brothers as wife of Devi Dutt Verma and two sisters Narayani Devi and Sita Devi have share in the said property.

7. After execution of the said family settlement, mother has expired and share of two sisters being equal to that of two brothers. The family settlement which is in nature of partition is admissible in evidence. It is also contended that the said document is in nature of relinquishment deed whereby mother and two sisters have their share in the property.

8. Counsel for the Non-petitioner defendant has placed reliance on Mahendra Singh v. Dhirender Singh, S.B. Civil Writ Petition No. 3643/2014 decided on 04.12.2014.

9. I have considered the rival contentions and have also perused Annexure-1, the alleged family settlement.

10. It is mentioned in the document that father of the parties made a provision during his life time of distributing the properties amongst his two sons and their wish was thereafter recorded on 09.09.1994. It is true that a memorandum of partition acknowledging earlier oral partition by metes and bounds does require registration and no stamp duty is payable.

11. In Ram Singh v. Smt. Kesar Kanwar & Ors. (Supra), it has been observed that a writing which merely recites that there has in time past been a partition, is a declaration of Will, but a mere statement of fact, and it does 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.

12. In the present case in hand admittedly, father of the parties was the owner of the property, he expired on 10.09.1993 and on his expi