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2022 (1) TMI 1359 - SC - Indian LawsPrinciples of res-judicata - Seeking partition and separate possession of one-fourth share in the suit Schedule properties - main plank of argument of the Appellant is that the suit filed by the Plaintiff-Appellant herein could not have been dismissed on the principle of res judicata by holding that in A.S. No. 37 of 1993 there was already a clear finding to the effect that there was a partition of the suit properties between the members of the joint family and hence a fresh suit for partition and separate possession vis-à-vis the same properties could not have been filed by the Plaintiff as it is not maintainable. HELD THAT:- The award is in the form of a resolution on the strength of the statement given by Periyaiya Servai and the consent statement given by P.R. Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya Servai. There are details as to how the properties had to be dealt with. The parties had also stated that they had read the above resolution and had agreed wholeheartedly to obey the provisions thereof. On a perusal of the award which is in the form of a resolution, it is clear that there was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement. Therefore under Annexure P-10 (Ex. B-13) there was no right created in favour of any party in any specific item of joint family property. The said document which has been styled as an award is only a memorandum of understanding/family arrangement to be acted upon in future. Hence, in our considered view, the said document did not create rights in specific properties or assets of the family, in favour of specific persons. Therefore, the same did not require registration Under Section 17(1)(e) of the Act. The said document was in the nature of a document envisaged Under Section 17(2)(v) of the Act. It can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration Under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration Under Section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence. In the instant case exhibit B-13 award is more in the nature of a memorandum of understanding, a mere agreement of the steps to be taken in future for the division of the properties. Hence, the said document did not require registration Under Section 17(1)(b) of the Act as under the said document no creation of rights in any specific joint family property was effected. The next question that arises for our consideration is whether, the finding of the first appellate court in A.S. No. 37 of 1993 that the suit properties were partitioned in the year 1964 is binding on the parties and hence a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable - Having regard to the fact that in the instant case there has been no challenge to the finding of partition between the parties till date and the same has attained finality we do not think that the Appellant can seek to rely on the judgment in Asrar Ahmed [[1946 (7) TMI 6 - PRIVY COUNCIL]]. Hence, the partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon, a fresh suit for partition and separate possession of the suit properties was not at all maintainable. The principle of res judicata squarely applies in the present case. Appeal dismissed.
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