A document creating a future division of property does not require registration and is admissible; previous partition must be proven by clear evidence to validate a sale deed executed beyond lawful share.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard the learned counsel for the appellants.

2. This appeal has been filed against the judgment dated 26.02.2021 (decree signed on 09.03.2021) passed by the learned District Judge VI, Chatra in Civil Appeal No. 07 of 2019, whereby the appeal has been dismissed. The trial court’s judgment is dated 31.01.2019 (decree signed on 14.02.2019) passed by the learned Civil Judge (Senior Division) III, Chatra in Original Suit No. 09 of 2013. The suit was decreed in favor of the plaintiffs.

3. The learned counsel for the appellants has submitted that the learned court has wrongly disbelieved the previous partition and misconstrued Exhibit-A i.e. memorandum of partition dated 11.04.1954. The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court reported in (2022) 3 SCC 757 (K. Arumuga Velaiah vs. P.R. Ramasamy & Anr.) and has submitted that when a document itself is not creating any right on the immovable property, the same does not require registration. Paragraph 45 of the aforesaid judgment is quoted as under: -

“45. Having regard to the aforesaid provisions of law it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17 (2) (v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17 (2) (v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence vide Ranjangam Ayyar v. Ranjangam Ayyar.”

4. The learned counsel has further raised the second point that the sale deed no. 1124 dated 10.09.1957 was also challenged to be a fraudulent, illegal and void document, but the sale deed having been challenged in the year 2013, its challenge was barred by limitation. He submits that the point of limitation has also not been properly considered by the learned court. The learned counsel further submits that the sale deed is a public document and therefore the challenge to the sale deed was barred by limitation.

5. After hearing the learned counsel for the appellants, this Court finds that the suit was filed for partition of half share of Schedule-B property and also for a declaration that sale deed no. 1124 dated 10.09.1957 was fraudulent, illegal and void document.

6. It was the case of the plaintiffs that Sainath Kumhar, Sobran Kumhar and Choho Kumhar were full brothers and had acquired 13.36 acres of land within khata no. 04 of village Hunkarkhap P.S. Simariya and they died before survey settlement. In the record of rights, there were three recorded tenants having equal share, namely, Jhaman Kumhar S/o Late Shainath Kumhar, Butwa Kumhar S/o Late Sobran Kumhar and Chulhan Kumhar S/o Late Choho Kumhar. Amongst them, Jhaman Kumhar died issueless in the year 1956 in jointness with Butwa Kumhar and Chulhan Kumhar. The genealogy of the parties and description of the suit property have been given in Schedule-A and Sch