D. M. DHARMADHIKARI, J.

( 1 ) THE suit filed by the appellants/plaintiffs was dismissed by both the Courts below. The plaintiffs as members of the joint Hindu family claimed a declaration in the suit that the registered gift deed dated 14-4-1969 (Ex. P. 1), executed by defendant No. 1 Bir Bahadur Singh in favour of defendant No. 2 Vishram Singh (who was sister's son of the donor), was invalid in law as the suit land which is the subject matter of the gift was an item of joint Hindu family property and could not be transferred without the consent of the other members of the family as per the Benaras School of Mitakshara Hindu Law, applicable to the Vindhya Pradesh region. The defendants set up a case of partition between the members of the family which was accepted by the lower appellate Court and it was held that Bir Bahadur Singh could validly make a gift of the suit land which was his separate property obtained by him in partition. Apart from the documents in the shape of revenue records and oral evidence of partition, the partition was sought to be proved on the basis of the partition list Ex. D. 2 said to have been prepared by the parties as evidenced by receipt Ex. D. 1 regarding entrustment of such partition list to the parties to the partition. The receipt mentions the date as Ashadh Badi 14 Samwat 2009, which the parties agree would be a date some times in July 1952 as per the English Calendar.

( 2 ) THE learned counsel for the appellants in this appeal raised two questions of law based on the partition list Ex. D. 2 and the gift deed Ex. P. 1. The question framed for decision in this appeal are as under :- (1) Whether the lower appellate Court committed an error in treating Ex. D. 2 as the list of memorandum of partition instead of a deed of partition requiring compulsory registration ? (2) Whether the gift deed Ex. P. 1 is void in respect of the disputed lands in village Gondari ?

( 3 ) THE learned counsel appearing for the appellants placed reliance on the decision of the Supreme Court in the case of Siromani v. Hemkumar, AIR 1968 SC 1299 : 1968 MPLJ 792 and in the case of Raj Kumar Rajindra Singh v. State of Himachal Pradesh, air 1990 SC 1833; Deo Chand v. Shiv Ram, 1970 MPLJ 371, in support of his contention that since the document Ex. D. 2 is not a memorandum of any previous partition, but a document of partition effected in metes and bounds between the parties it is inadmissible in evidence under Section 17 of the Registration Act for want of its registration. On the basis of the above contention, the learned counsel for the appellants argued that the suit lands held by the members of the family will have to be treated as held jointly as members of co-parcenary or a joint Hindu family and the defendant Bir Bahadur Singh as per the Hindu Law applicable to the coparcenary in Vindhya Pradesh region, was incompetent to make a gift of his undivided share in the property without consent of the other coparceners.

( 4 ) THE learned counsel appearing on behalf of the defendants submits that even if the document Ex. D. 2 containing list of items of suit property divided between the members of the family is held to be inadmissible in evidence for want of registration, the said document can be used for a collateral purpose of proving that the coparcenary had disrupted because of the intention expressed by the members to divide the property.

( 5 ) THE second argument is that even if unregistered document Ex. D. 2 is ignored, there is overwhelming evidence in the shape of revenue record and the oral evidence led by the parties to show that the members of the family, on the basis of the unregistered document of partition Ex. D. 2 had actually taken separate possession of the lands allotted to them and had thereafter been cultivating the same separately and paying land revenue also separately of those lands. It is urged that such evidence of partition is not shut out or barred by the provision of Sections 91 and 92 of the Eviden

Click Here to Read the rest of this document