Ghulam Nabi Meer vs Khazir Meer

That a writing which is brought into existence with a view to evidence allotment of specific immovable properties to individual cosharers on division

and has the effect of declaring exclusive title of the individual cosharers to the properties so allotted to them or in other words any deed which

causes any change of legal relationship with respect to immovable properties falling to the shares of the parties on division requires compulsory

registration. '

(b) In the case of an express completed partition there are three different stages :

The stage of effecting a division in status.

The stage of dividing the properties by metes and bounds and

The stage of parties taking possession of the properties allotted to them.

An unregistered partition deed though not admissible to prove the terms of the partition can be admitted in evidence for proving the stages i and 3.

(c) So it was held by Mr. Justice Jaswant Singh.

Thus in the Litter two cases the document could be admitted in evidence on payment of proper stamp duty and penalty leviable under the proviso

to sec. 35 of the Stamp Act.

Mr. M.L. Qureshi

Mr. M.K. Tikku and Mr. Nanak Chand.

(i) This is an application for revision of an order dated March 25th, 1975, of the learned District Judge, Srinagar, whereby he held the document

dated April 3, 1955 (A. D.) Chet 21, 2011 (Samvat) attached to criminal complaint No. 103 of 1967, (instituted in the court of the First

Additional Munsiff, Magistrate, 1st Class, Srinagar, on August 23, 1967 and disposed of by him on March 26, 1970) as being hit by Section 17

(1) (b) of the Registration Act, hereinafter referred to as ''the Act"" and in admissible in evidence as provided in Section 49 of the Act

(2) It appears that during the examination of Mufti JalaludDin P W the aforesaid document was sought to be put to the witness and admitted in

evidence but on an objection being raised on behalf of the defendants to the effect that as the document was neither registered as required by

Section 17 (1) (b) of the Act nor stamped as required by Article 45 of Schedule I of the Stamp Act, it was inadmissible in evidence, the learned

District Judge upheld the objection and refused to allow the document to be put to the witness and passed the order referred to above

(3) Mr. M L Qureshi appearing in support of the application has contended that the aforesaid document was merely a family settlement and did not

require registration.

(4) Mr. Tikku has on the other hand, urged that the document interalia declared the right to immovable properties of the parties thereto and fell

within the purview of Section 17 (1) (b) of the Act and not being registered could not be admitted in evidence as laid down in Section 49 of the

Act. He has further contended that the document could also not be admitted in evidence as it was not stamped as required by Article 45 of

schedule I of the Stamp Act, 1977 (1970 AD).

(5) For a proper determination of the points arising in this case, it is necessary to refer to a few decisions and certain provisions of law.

(6) In Sakharam Krishanaji Vs. Madan

Krisbnaji (1880) ILR 5 Bombay 232, where the document in question acknowledged the preexisting title of the eldest brother M of the executants

to the site on which the brother M was putting up houses, West J observed :

''Here, however, the document is not itself one which declares a right in immovable property, in the sense probably intended by Section 17. There

'' declares "" is placed alongwith ""create "", "" assign ''. ""limit"", or 'extinguish', 'title or interest' and these words imply a definite change of legal relation

to the property by an expression of will embodied in the document referred to. I think this is equally the case with the word 'declare"". It implies a

declaration of will not a mere statement of fact and thus a deed of partition which causes a change of legal relation to the property divided amongst

all the parties to it, is a declaration in the intended sense, but a letter containing an admission direct or inferential, that a partition once took place,

does not 'declare' a right within the meaning of the Section.

(7) The view expressed by West J in the above noted decision was approved in Bageshwari Charan Singh V. Jagannath Huari, ILR 11 Pat. 272

59 Ind App 130AIR 1932 PC 55, where their Lordships of the Privy Council observed :

Though the word ""declare"" might be given a wider meaning they are satisfied that the view originally taken by West J. is right. The distinction is

between a mere recital of a fact and something which in itself creates a title.

(8) The above decision of the Privy Council was followed with approval by their Lordships of the Supreme Court in Nachiappa Chettiar Vs.

Subrammania Chettiar AIR 1960 SC 307.

(9) In Mst Bibi Aziman and Anr Vs Mt. Salaha and ors AIR 1963 Patna, 62, it was held :

If the parties had an antecedent title of some kind in the properties and they only agreed to acknowledge the previous title by the compromise the

arrangement cannot be said to create, declare, assign, limit or extinguish any right title or interest' in immovable property and the agreement if

reduced to writing need not be registered. On the other hand, if by the agreement, the title of the parties is declared, then the writing evidencing

such agreement must be registered. In order to settle a dispute, there can be a family arrangement but the test is as to what was the intention of the

parties. Where the terms of the compromise do not indicate that there was a mere acknowledgement of prior title of the parties and the

declarations and allotments were by the compromise itself and as such the compromise purported to create and declare titles in favour of the

respective parties the compromise with regard s to the lands in suit cannot be held to be valid on account of nonregistration of that document.

(10) In Mani Bai Vs Gita Bai Kom Rama Gunge, AIR J958 SC 706 it was observed :

Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a

joint title, has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what

ordinarily is understood by partition amongst coshares who may not be members of a Hindu Coparcenary. For partition in the former sense, it is

not necessary that all the members of the joint family should agree, because it is a matter of individual volition. For partition in the latter sense of

allotting specific properties or parcels to individual coparceners agreement amongst all the coparceners is absolutely necessary, such a partition

may be effected orally, but if the parries reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the

effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition and is thus within the mischief of

Section 17 (1) (b) But partition in the former sense of defining the shares only without specific allotments of property, has no reference to

immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the

coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property

may be effected orally, or it may be brought about by a document. If the document does not evidence any partition by metes and bounds that is to

say, the partition in the latter sense, it does not come within the purview of section 17 (I) (b), because so long as there has been no partition in that

sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or

operate to do any of the things referred to in that Section. Hence in so far as the documents are evidence of partition only in the former sense, they

are not compulsorily registerable under

Sec. 17 and would, therefore, not come within the mischief of Sec. 49.

(11) In Tek Bahadur Bhuji Vs. Devi Singh Bhuji and others, AIR 1966 SC 292:

''Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon The

memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is be founded. It is generally

prepared as a record of what had been agreed upon, in order that there are no notion about it in future. It is only when the family arrangement is

reduced in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about the

document as such that the document requires registration! because it is then that it would amount a document of title declaring for future what rights

and in what properties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not

require compulsorily registration under section 17 of the Registration Act.

(12) In Siromani Vs. Hem Kumar and others, AIR 1968 SC 1299, their Lordships of the Supreme Court held that a document effecting partition

by metes and bounds of joint properties (of the value of more than Rs. 100) required compulsory registration and in the absence of such

registration it is in admissible to prove title of any of the coparceners to any of the properties. Their Lordships, however, went on to observe that

such document is admissible to prove an intention of coparceners to become divided in status.

(13) In Ghulam Ahmed Vs, Ghulam Qadir and ors AIR 1968 J&K, 35, Bhat J. held :

''The Registration Act in the State of Jammu and Kashmir makes all documents relating to immovable property whether their value is below or

above Rs. 100/ compulsorily registrable provided other condition of Section 17 (I) (b) are involved in the matter.

(14) The position that, therefor, emerges from a study of the above noted decisions is that a writing which is brought into existence with a view to

evidence allotment of specific immovable properties to individual coshares en division and has the effect of declaring exclusive title of the individual

cosharers to the properties so allotted to them or in other words any deed which causes any change of legal relationship with respect to immovable

properties falling to the shares of the parties on division requires compulsory registration ) So viewed the document in question which does not

merely acknowledge the previous title of the parties but itself evidences partition, allots specific immovable properties to various cosharer?, causes

change of legal relationship and declare? exclusive title of the parties with respect to particular properties allotted to them on partition was

compulsorily registrable under section 17 (I) (b) of the Act. Not being registered it could not as rightly held by the learned District Judge be

admitted in evidence for the purposes of establishing partition of immovable properties.

(15) I may, however, observe that although the said document was not admissible in evidence for the purpose of proving partition of immovable

properties referred to therein that part of it which distinctly related to partition with respect to movable properties which did not require to be

affected by a registered document was receivable in evidence I am fortified in this view by a decision of this court in Gallam Rather and others Vs.

Mohammad Gani and ors, AIR 1964 Jammu and Kashmir 46, where it was held that if in a document which is compulsorily registrable there are

certain recitals which do not require compulsory registration and are separable from others which are compulsory registrable, the document is

admissible in evidence for the purpose of the said separable recitals.

(16) I am further of the opinion that the document could also be admitted in evidence for the purpose of proving division in status of the parties.

This view receives support from a decision of the Madras High Court in C S Kumarswamt Gounder Vs Aravgiri Gounder and anr AIR 1974

Madras, 239, where it was held :

In the case of an express completed partition there are three different stages :

The stage of effecting a division in status.

The stage of dividing the properties by metes and bounds and

The stage of parties taking possession of the properties allotted to them.

Every one of the stages can be effected orally and no document is necessary. In respect of stages 1 and 3 even if there is a document it need not

be registered, as the said stage cannot be said to ''declare, assign limit, or extinguish"" any right, title or interest to or in immovable property. It is

only with regard to the second stage namely division of properties in different shares and allotment thereof to the various members, if the same is

reduced to writing, it requires registration under section 17 (I) (b) of the Act.

An unregistered partition deed though not admissible to prove the terms of the partition can be admitted in evidence for proving the stages (I) and

(3) namely the division in status and the taking of possession and the nature and character of the shares allotted, these being collateral purposes.

(17) Thus in the latter two cases the document could be admitted in evidence on payment of proper stamp duty and penalty leviable under the

proviso to sec. 35 of the Stamp Act.

(18) In the result the revision is disposed of as indicated above. In the circumstances of the case, the parties are left to bear their own costs in this

revision.