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TMI Blog1988 (2) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... instrument of partition and therefore inadmissible for want of registration under s. 49 of the Indian Registration Act, 1908, or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares. The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda. They and the defendants are the descendants of the common ancestor Chattar Singh who had two sons Jai Ram and Ram Lal. Soonda was the son of Ram Lal and died in 1966. Jai Ram in turn had two sons Puran Singh and Bhagwana. The latter died issueless in 1916-17. Puran Singh also died in the year 1972 and the defendants are his widow, three sons and two daughters. It is not in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi Cantonment. The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, gher/ghetwar etc. The factum of partition was embodied in the memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the alternative, for partition. After an elaborate discussion of the evidence adduced by the parties, the learned Single Judge (D.R. Khanna, J.) by his judgment dated April 18, 1980 came to the conclusion, on facts, that the plaintiffs were the owners in possession of the property marked as B1, a smaller house known as baithak, and the disputed plot B2, and the properties, marked as A1, the ancestral residential house called rihaishi and A2, the open space behind the same, belonged to the defendants. Taking an overall view of the evidence of the parties in the light of the circumstances, the learned Single Judge came to the conclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971. In coming to that conclusion, he observed: "I have little hesitation that the portions marked A-1 and A-2 and B-1 and B-2 were ancestral residential houses of Ghers of the parties and Soonda and Puran had equal share in them. The residential house shown as A-1 and the open space behind that marked as A-2 were admittedly given to Puran in the partition of 1955. Similarly B- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. We regret, we find it rather difficult to accept the contention. In order to deal with the point involved, it is necessary to reproduce the terms of the document Exh. P-12 which read: "Today after discussions it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west which is lying open i.e. the area on the back of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar. 2. House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side. 3. Rest of the area of the field and gitwar will be half and half of each of co-shares. The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda. 4. Since house rihaishi has come to the share of Chaudhary Pooran Singh therefore he will pay ₹ 3000 to Chaudhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty. 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 flow: (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. Secondary 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. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Cooperative Central Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under s. 17(1)(b) of the Act. That apart, the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members. The matter can be viewed from another angle. The true and intrinsic character of the memorandum Exh. P-12 as later confirmed by the panch faisla Exh P-1 was to record the settlement of family arrangement. The parties set up competing claims to the properties and there was an adjustment of the rights of the parties. By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The principle governing this was laid down by the Judicial Committee in Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87. Ameer Ali, J. delivering the judgment of the Privy Council quoted with a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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