Duraipandian vs Tamiljothi and 3 others

The defendant in O.S.No.117 of 1997 on the file of the Principal Subordinate Court, Tenkasi is the revision petitioner.

The said suit was filed by the respondents herein/plaintiffs for partition. The revision petitioner is the son of the first wife of the fourth plaintiff and

respondents 1 to 3 are the daughters of the second wife of the fourth plaintiff. Alleging that the family remains undivided, the said suit was filed for

partition. In the written statement filed by the revision petitioner, he alleged that between himself and the fourth plaintiff, there was an oral partition

on the basis of the Panchayat and plaintiffs 1 to 3 also relinquished their claim and agreed for a division and on the basis of the panchayat held, the

properties were taken possession. To substantiate that there was a panchayat and consequent oral partition, the petitioner relied upon a

memorandum of settlement executed between himself and the fourth plaintiff dated 21.4.1996 and he wanted the said document to be admitted in

evidence. The respondents herein opposed the marking of the document on the ground that the document dated 21.4.1996 is compulsorily

registerable u/s 17(1)(b) of the Indian Registration Act and consequently, it should not be considered for any purpose. The lower Court accepted

the objection and refused to mark the same. The same is challenged in this revision petition.

Before going into the merits of the case, it is better to consider the law on the point as laid down by the Supreme Court in the case of Roshan

Singh v. Zile Singh, AIR 1988 SC 881 wherein their Lordships considered the question under what circumstances, the registration of a document

is necessary, It was held as follows:

It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing

ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17(1)(b) of the Act,

a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not

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. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally

well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration, section 17(1)(b)

lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some

right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no

necessity of registering such a document. Two propositions must therefore flows (1) A partition may be effected orally; but if it is subsequently

reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be

necessary to register it. If it be not registered, S. 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of

partition will not be admissible by reason of S.91 of the Evidence Act. 1872. (2) partition lists which are mere records of a previously completed

partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: see Mulla''s Registration

Act. 8th Edn.pp.54-57.1b2

Again in the case of Bakhtawar Singh v. Gurdev Singh, (1996) 9 SCC 370 , the said decision was followed by the Supreme Court herein it was

held thus:

The memorandum Ex.A1 recording past partition put on record before the Rent Controller was not pronounced upon and, was brushed aside by

the appellate authority holding that it could not be seen in the absence of registration even though the decision of this Court in Roshan Singh v. Zile

Singh, AIR 1988 SC 881: 1988 2 SCR 1106 stood eked, in which it was held that a subsequent memorandum recording past oral partition as a

family settlement was not required to be registered. Memorandum. Ex.A1 when read, substantially discloses that the shop in dispute stood fallen to

the share of the appellant. Besides two brothers of the appellant appeared as AW2 and AW5 and supported it. It records the fact of the past but

for certainty the brothers had chosen to straighten things w.e.f. 23.2.1982 and the said notice Ex.A4 to the respondent was to the effect that the

appellant was entitled to receive rent w.e.f. 1.3.1982. The Rent Controller did not fully grasp the legal situation in the manner and wrongly denied

eviction of the respondent on that score. The appellate authority as also the High Court committed the same error,

In the case of Ayyakannu Padayachi and three others v. Boorasamy and another, 1998 (2) LW 678, this Court has held as follows:

A perusal of Ex.B1 shows that it was a mere record of understanding reached between the parties earlier, pursuant to a panchayat. If can only be

stated to be a record of an agreement reached between the parties, after earlier negotiations. Therefore, I am of the opinion that the document

does not require registration.

On the basis of the above legal position, let us consider the question as to whether the document sought to be marked requires registration or

not. In the beginning of the document, the deed begins with an introduction that there was a panchayat and the father and son have already agreed

for allotment of various properties and thereafter it says that and gives the list of properties taken by the fourth plaintiff and the revision, petitioner.

A reading of the document is very clear that it records only a past transaction and the division has already taken place on the basis of the

panchayat, and no interest is created on the basis of the instrument.

The order of the lover Court holding that the document Is compulsorily registerable is not correct. The lower Court has not taken into

consideration the first, paragraph in the document sought to be marked. The order of the lower Court is liable to be set aside, in view of the clear

legal position stated above.

In the result, the civil revision petition is allowed. No costs. Consequently, the above C.M.P.is dismissed.