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HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Appeal No. 170 of 2016

Dinesh Chandra Joshi. ………..Appellant.

Versus

Anurag Joshi

and others. ……..Respondents

Present:

Mr. V.K. Kaparwan, learned counsel for the appellant.

Mr. Siddharath Singh, learned counsel for the respondents.

Hon’ble Rakesh Thapliyal, J.

1. A suit no. 07 of 2010 was filed by the plaintiffs /

respondents for partition against the defendant / appellant on

the ground that family settlement dated 28.08.2004 cannot be

read in evidence since the same is not registered and is not

admissible into evidence under Section 49 of the Registration

Act.

2. On the contrary, defendant’s case was that admittedly,

family settlement dated 28.08.2004 was signed by the plaintiffs,

therefore, once they signed the family settlement, they cannot

dispute the same that the family settlement is not admissible. In

fact, partition suit was filed by the respondents / plaintiffs in

respect of a building raised over the land, which in fact is a

nazul land. Family settlement is on record and it appears from

the family settlement that a piece of nazul land was given on

lease wherein construction was raised, however, uptill date no

free hold rights has been given. Thus, the construction was

raised admittedly on a nazul land, which is owned by the State

Government.

3. Mr. Siddharath Singh, learned counsel for the

respondents / plaintiffs argued that partition suit was filed

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only in respect of the building which was raised over the nazul

land and no relief was sought against the State Government,

therefore, State was not impleaded as party defendant. He

further submits that family settlement was disputed by the

plaintiffs since there is no disclosure about the share of the

married sisters.

4. Mr. Siddharath Singh, learned counsel for the

respondents, in support of his arguments has placed reliance on

the judgment of this Court passed in the case of Smt. Shashi

Agarwal Vs. Addl. Collector (Finance and Revenue) / Dy.

Director of Consolidation 2014 (1) UD 189, particularly, by

placing reliance to paragraph 11, which is being reproduced

herein under:

“11 Sri Pradeep Kant, the learned Senior

Advocate, has placed reliance on the judgment of

the Apex Court in the case of Kale & others vs.

Deputy Director of Consolidation, reported in

1976 AIR 807, which judgment has also been relied

upon by the Consolidation Officer. On the basis of

the said judgment, the learned Senior Advocate has

submitted that the oral family settlement, which

has been reduced in writing and, thereafter, Chas

been recognized; is not needed to be registered and

the learned Deputy Director of Consolidation has,

thus, committed manifest error of law.”

5. Mr. Singh has further placed reliance on the judgment of

Hon’ble Supreme Court in the case of K.B. Saha and sons Pvt.

Ltd. Vs. Development Consultant Ltd. (2008) 8 SCC 564,

particularly, by placing reliance to paragraph 34, which is also

being reproduced herein under:

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“34

From the principles laid down in the various

decisions of this Court and the High Courts, as

referred to hereinabove, it is evident that:

1. A document required to be registered, if

unregistered is not admissible into evidence under

Section 49 of the Registration Act.

2. Such unregistered document can however be

used as an evidence of collateral purpose as

provided in the proviso to Section 49 of the

Registration Act.

3. A collateral transaction must be independent of,

or divisible from, the transaction to effect which the

law required registration.

4. A collateral transaction must be a transaction

not itself required to be effected by a registered

document, that is, a transaction creating, etc. any

right, title or interest in immovable property of the

value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for

want of registration, none of its terms can be

admitted in evidence and that to use a document

for the purpose of proving an important clause

would not be using it as a collateral purpose.”

6. Be that as it may, admittedly, building