The main legal point established in the judgment is the interpretation of the Registration Act, particularly the requirement of registration for family settlements and the distinction between a document containing the terms of a family arrangement and a mere memorandum prepared after the family arrangement.

SERVESH KUMAR GUPTA, J.

1. Having heard the learned counsels of both the parties, the court has to give its finding on the following substantial question of law:

Whether while reversing the findings of the Trial Court the First Appellate Court has committed a mistake in law in considering that the paper no. 32 Ga dated 03.12.2004 is a memorandum of fact which requires no registration?

2. It transpires that the plaintiff and defendant are the real brothers. The property is situated in Kotdwar, Nazibabad road Naya Gaon, ward no.18 admeasuring 13X5.60 meter, which was originally owned by one Shri Kanta Prasad who was the real maternal uncle of both the parties. Shri Kanta Prasad undisputedly executed an unregistered Will dated 01.02.1989 bequeathing the whole property in favour of the plaintiff and defendant and as per the intention of the testator both had to own half-half share in such property. The Will was acted upon after the death of Shri Kanta Prasad on 07.02.1989.

3. Original suit no. 11/2006 was instituted by Shri Ghanshyam Das-appellant herein for partition of such property wherein the defendant presented his written statement and in the paragraph-13 he pleaded the mutual written settlement between the parties on 03.12.2004 (paper no. 32 Ga in LCR) whereby north-east part of such property fell in the share of the defendant and south-east part in the share of the plaintiff. After such mutual settlement both began to utilize the same in accordance with their need and changed the nature of the property accordingly including the erection thereon but, the learned Trial Judge decreed the suit on 19.12.2012 directing the partition and preparation of the preliminary decree discarding such mutual settlement on the ground that it was not registered as envisaged under section 17 (1)(b) of the Registration Act, 1908.

4. First Appeal No. 02/2013 was preferred by the defendant, which was allowed vide impugned judgment dated 06.02.2015 and the suit was thus dismissed.

5. The plaintiff has come up in the second appeal before the court. It was held by the Madras High Court (Single Judge) in case of Bala Krishnan and another v. Chandra Shekhran 2003(95) RD 377 that family arrangement reduced in writing if stamped but not registered that can be looked into only for collateral purposes and the document neither registered nor stamped cannot be looked into for any purpose.

6. Another judgment Smt. Rukayya Bai v. Smt. Munni Bai 2003 (95) RD Page 455 has also been relied that the relinquishment deed of all rights in suit house and conferring absolute rights solely on another is not a memorandum of family settlement. Such document requires compulsorily registration and if such document is not registered then possession on the basis of such document cannot be protected.

7. It is very pertinent to mention that the law, which is reigning the filed even now, was propounded by the Constitutional Bench of the Hon'ble Apex Court in case of Kale & Others v. Dy. Director Consolidation & Others AIR 1976 SC Page 807:

"It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case memorandum itself does not create or extinguish any right in immovable properties and therefore does not fall within the mischief of section 17(2) (sic) [Section 17(1)(b)] of the Registration Act and is, therefore, not compulsorily registrable."

8. Now, it has to be evaluated whether the stamped document dated 03.12.2004 is the mutual settlement recorded by the parties first time between them or it was in order to give effect the mutual settlement/partition which had taken place prior t