Rajesh Bajpaiye vs Mohanlal Bajpaiye And Others

The petitioner has filed the present petition being aggrieved by the order dated 20/11/2017, by which he has not been permitted to exhibit the

documents for want of registration.

2 Respondent no. 1 being plaintiff filed the suit seeking relief of declaration, possession, partition, mutation and permanent injunction in respect of the

land bearing survey no 71 area 0.813 situated at Gram â€" Mothala, Tehsil â€" Depalpur, Dist â€" Indore. The land was recorded in the name of his

mother Late Shantabai in the revenue record. The plaintiff has claimed 1/5th share in the said property. Defendants no. 1 to 4 are the brothers and

sister of the plaintiff. Defendant no. 6 is the son of defendant no. 1, in whose favour Late Shantabai said to have executed a WILL on 17/04/2014 and

thereafter, his name has been mutated in the revenue record. The plaintiff has also sought declaration that the said WILL be declared as void and not

binding on him.

3 The plaintiff filed an affidavit under Order 18 Rule 4 of C.P.C, thereafter his cross-examination was started on 27/10/2017. During the said cross-

examination, the present petitioner / defendant no. 6 presented partition deed dated 12/03/2010 in respect of the land bearing survey no. 71. The

plaintiff raised an objection that the said document is neither properly stamped, nor registered, therefore, the same cannot be exhibited in the evidence.

The trial Court has deferred the cross-examination and decided the issue vide impugned order and held that by the deed dated 12/03/2010, partition

took place between two sons and the mother, therefore, under section 17 of the Registration Act, registration is compulsory. Being aggrieved by the

aforesaid, defendant no. 6 has filed the present petition before this Court.

4 I have heard the learned counsel for the parties.

5 By the deed dated 12/03/2010, Mohanlal and Shankarlal i.e. the plaintiff and the defendant no. 1 respectively had partitioned the land bearing survey

nos. 41/1, 116/1, 228/1 and relinquished their rights for the land bearing survey no. 71 area 0.813 ( the suit land ) in favour of their mother Shantabai.

On the same day, they entered into the agreement to sale in respect of the land bearing survey no. 41/1 area 11.95 hectors. From the contents of the

said deed, it reveals that the partition took place between them on 12/03/2010 and thereafter, same was reduced in writing. Once the family

arrangement dealing with the immovable property worth more than Rs. 100/- has been reduced to writing, it requires registration and without

registration, it is inadmissible. Hon'ble Apex Court in the case of Subrayam N. Vs. Vittala M.N and others reported in 2017(1) MPLJ17 has held that

if family partition is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without

registration, it is inadmissible, but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of

the parties. For the sake of reference, para 16 and 17 of the said judgment is reproduced below :

Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or

interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by

Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an

immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be

inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act.

Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family

arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to

writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be

made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms

should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as

corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat resolution reduced into

writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the

money from the defendant in lieu of relinquishing their interest in items No.1 and 2.

6 In cross-examination, the plaintiff has admitted that apart from the suit land, Kanaiyalal i.e. father was having 22 â€" 23 bigas land in Gram â€

Mothala and he has not claimed any share in it, because he has already received the same. He has also admitted the sale of his share from the said

property, then defendant no. 6 asked the question about partition between the brothers and the mother, which, he denied, then defendant no. 6 has

shown deed to him. The plaintiff has filed the suit claiming the share only in respect of the land bearing survey no. 71 and according to agreement

dated 12/03/2010, the very said land was given to the mother, who has later on executed the WILL in favour of the defendant no. 6 for the said land.

According to the plaintiff, Kanaiyalal became the owner of the suit land by virtue of judgment and decree dated 18/03/1974 and after his death, the

suit land was mutated in the name of the mother, therefore, mother of the plaintiff did not become the owner of the land by virtue of so-called

agreement dated 12/03/2010 and no right was transferred to her by way of the said agreement, therefore, by virtue of the judgment passed by the

Hon'ble Apex Court in the case of Subrayam N. (supra), the said deed can be used in corroborative purpose in order to show the conduct of the of the

plaintiff, therefore, in view of the above, the impugned order is set aside and the defendant is permitted to produce the deed only for corroborative

purpose as explained above.

In view of the aforesaid, present petition is partly allowed. No order as to cost.

C c as per rules.