Mr. D. P. Wadhwa, J. ( 1 ) THIS is plaintill s appeal. His suit for declaration and injunction against his two brothers and mother was dismissed byjudgment dated 12/11/1969 by the Sub-Judge 1st Class, Delhi,plaintiff sought a decree that it be declared that property bearing No. 36/15,tihar II, Ashok Nagar, New Delhi, comprising 2-1/2 storeyed and built ona plot of land measuring 100 sq. yards was a joint property of the plaintiffand his two brothers, defendants 1 and 2. The plaintiff also sought permanentinjunction restraining the first defendant from disposing of the suit propertywithout the express concurrence in writing of the plaintiff and the otherbrother, defendant No. 2. ( 2 ) THE principal contesting defendant was defendant No. 1 Sujansingh in whose name the property was standing. During the pendency of thesuit Sujan Singh died and so also the mother of the parties Parmeshwari Devibut not before they had appeared as witnesses during the trial. Defendants2 and 3 were ex pane. They appeared as witnesses, however. Defendantno. 2 Rawal Chand supported his brother Sujan Singh: Parmeshwari Devi,their mother, however, supported the plaintiff in their respective statements. ( 3 ) THE plaintiff alleged that he, his two brothers and mothermigrated from Pakistan. His father had expired in Pakistan. He saidthe aforesaid properly was allotted to the parties as a rehabilitationmeasure and since Sujan Singh, the first defendant, was major and theplaintiff and defendant No. 2 as minors, the property was allotted inthe name of Sujan Singh. At that time it consisted only of one built up singlestorey room. Thereafter with the contribution of all the brothers 2-1/2storeyed house was built. There were disputes among the parties. APanchayat of elders was formed who settled the dispute and recorded theterms of settlement on 7/11/1965 Under this family settlement theplaintiff and the second defendant Rawel Chand were to own and remaip inphysical possession and enjoyment of the ground floor of the property andthe defendant Sujan Singh was entitled to the physical possession and enjoyment of the remaining house other than the ground floor. Mother of theparties, defendant No. 3, was to be entitled to living and maintenance fromthe plaintiff and Rawal Chand. Mother of theparties, defendant No. 3, was to be entitled to living and maintenance fromthe plaintiff and Rawal Chand. The parties were also liable to individuallypay off the loan raised by them, if any, and the household effects were to bepartitioned by the parties themselves and it was said that in case there wasany difficulty on that score assistance of the respectables would be procuredfor that purpose, plaintiff then alleged that this family arrangement waspartly acted upon and the plaintiff and defendants 2 and 3 were in physicalpossession and enjoyment of the ground floor. Cause of action to file the suitarose when Sujan Singh started quarreling with the plaintiff and other twodefendants and disowning the family arrangement. It is alleged that be wasalso manipulating to dispose of the suit property fraudulently, thus deprivingthe other parties of their valuable rights therein. Plaintiff claimed the suitproperty to be joint property and parties bound by the terms of the aforesaidfamily arrangement. As noted above, defendant No. 2 Rawel Chand andmother Parmeshwari Devi were proceeded ex parte. First defendant Sujansingh filed his written statement. He disputed the case set up by the plaintiff. He raised many preliminary objections and said the property was governedby the provisions of tlie Displaced Persons (Compensntion and Rehabilitation) Act and that jurisdiction of the Civil Court was barred He said property was allotted in his own right and none of the defendants has any right,title or concern in the same. He said family arrangement was forced uponhim and it has even otherwise no legal sanctity. In short the case of the firstdefendant was that the conveyance deed and lease deed of the property inquestion was granted to him in his sole name as owner by the authoritiesunder the Displaced Persons (. Compensation and Rehabilitation) Act. He saidclaim was made betore these authorities and each of the defendants gotrs. 919. 00 in cash as his/her respective share of compensation but the plaintiffinstead of getting that compensation got the allotment of the house inquestion which was at Rs. 1670. 69. The balance of the amount after deducting Rs. 919. 00 was payable in instalments which the first defendant said waspaid by him. ( 4 ) ON the pleadings of the parties the following issues were framed:- 1. Whether the property in suit is the joint property or theplaintiffs and defendants 1 and 2 ? OPP. 2. 1670. 69. The balance of the amount after deducting Rs. 919. 00 was payable in instalments which the first defendant said waspaid by him. ( 4 ) ON the pleadings of the parties the following issues were framed:- 1. Whether the property in suit is the joint property or theplaintiffs and defendants 1 and 2 ? OPP. 2. Whether the order of rehabilitation authorities conferring theright of ownership of the house in dispute in favour of defendant No. 1 has become final, if so what is its effect? OPD. 3. Whether the jurisdiction of Civil Court to try this suit is barredby Section 36 of Act 44 of 1954 ? OPD. 4. Whether the suit is not maintainable ? OPD. 5. Whether the suit has been correctly valued for purposes ofcourt fee and jurisdiction ? OPD. 6. Whether Union of India is a necessary party ? CPD. 7. Relief. Additional Issue: 1. Whether there was any valid family arrangement? If so, towhat effect? OPP. ( 5 ) IN support of his case the plaintiff produced live witnesses includinghimself, and the defendant also produced five witnesses including himself. The defendant also brought on record the family arrangement/ dated 7/11/1965 which was marked as "a". First witness of the plaintiff washis mother. She said the expenditure on the construction of the house wasborne by her and her three sons and that earlier the house had been allottedin lieu of the property left by the parties in Pakistan which property, shesaid. belonged to her husband. She said that all the three brothers had sharesin the house and also said she had herself a share in it as well. She said theentire family was joint and the first defendant being the eldest son was doingacts on behalf of all the parties. She also referred to the dispute andsubsequently that being settled by the panchayat. She admitted that she hadreceived her share of compensation of Rs. 919. 00 in cash and also received theshares of her two minor sons, the plaintiff and defendant No. 2. She saidthough no records were kept of the expenditure incurred on the house, but allthe brother would give money to the first defendant. She admitted that noappilcation was made to the rehabilitation authorities for allotment of thehouse in the name of all the heirs. She said first defendant would not like thehouse to be partitioned. She saidthough no records were kept of the expenditure incurred on the house, but allthe brother would give money to the first defendant. She admitted that noappilcation was made to the rehabilitation authorities for allotment of thehouse in the name of all the heirs. She said first defendant would not like thehouse to be partitioned. Second witness of the plaintiff is Beant Singh. Hewas member of the panchayat and proved his signature on the family settlement mark a . Third witness is Sunder Singh. He said, he knew the partiesand that their father had passed away before Pakistan was formed. He saidafter the death of the father, first defendant Sujan Singh was the katra andthe house in question was allotted to him being head of the family. He saidthe house had been constructed by all the three brothers, jointly. Headmitted that he was living in Malyiya Nagar while the house in question wassituated at Tri Nagar at a distance of about 10 to 12 miles. He said he hadno relationship with the parties but said they were on visiting terms. He saidfamily arrangement mark a was written by Sardul Singh in his presence. Fourth witness is Jaswant Singh and also witness to the family arrangement. Then the plaintiff appeared as PW-5. He reiterated what he said in his plaint. He said there was a dispute regarding the house and other material and asthere was settlement other material was also partitioned. This material, hesaid, was partitioned by the parties themselves later on which was after IU/15days of the date of the settlement. He said after family settlement mark a was written partition was to be got registered after getting the stamp paper,but the first defendant refused to do so. As such the suit had to be filed. Hesaid when the house was allotted in the name of the first defendant he wasminor and so was his second brother and that there was no understanding. He said his guardian was his brother Sujan Singh and not his mother thoughhis claim was received by his mother. He said he did not maintain anyaccount of his income from which he gave any money to his brother Sujansingh. Then comes the evidence of the first defendant. First witness is Tarachand, a U. D. C. from the office of the Chief Settlement Officer under thedisplaced Person (Compensation andRehabilitation) Act. He said he did not maintain anyaccount of his income from which he gave any money to his brother Sujansingh. Then comes the evidence of the first defendant. First witness is Tarachand, a U. D. C. from the office of the Chief Settlement Officer under thedisplaced Person (Compensation andRehabilitation) Act. He said ajoint claimwas filed in the name of Sujan Singh, Rawel Chand and Jai Dev Singh throughtheir mother Parmeshwari Devi. Subsequently the claim was split up in thenames of all of them separately. The witness had brought relevant the recordand on the basis of the record he said each share was in the sum of Rs. 9191-and 5 annas. He said the share of Sujan Singh was adjusted against House No. 36/15, Tihar II; while other claimants got their shares in cash. Parmeshwaridevi, mother, bad also received share on behalf of her minor son, the plaintiff,while the second son Rawel Singh (Rawal Chand) received his share in cash. Second witness is Rawel Chand, defendant No. 2. He admitted, he receivedhis share of compensation in cash. He said the share of first defendantsujan Singh was adjusted against the price of the house in questionand the remaining house was constructed by Sujan Singh himself. He saidneither he nor the plaintiff had any share in the house in dispute. Hesupported the first defendant. Third witness of the defendant is Mallu Ram,a clerk from the office of the Municipal Corporation of Delhi. He deposedabout the property taxes being paid by the first defendant. Yet anotherwitness is Veer Bhan from the office of the Land and Development Office,new Delhi. He produced record of the allotment of the house in question infavour of the first defendant. He said a man of over five years age was treatedas an adult and where family consisted of more than five adult members thatwas allotted a two rooms house and the allotment was used to be made to thefamily and it was made in the head of the family. He said allotment wasit made to a single person. He said, he, however, had not brought anyinstructions to show that a person of over five years of age was consideredas an adult. He denied knowledge of allotment of some houses whether theywere allotted as per the guidelines stated by him. He admitted that lease deedin respect of the property in question was issued in the name of the firstdefendant. He said, he, however, had not brought anyinstructions to show that a person of over five years of age was consideredas an adult. He denied knowledge of allotment of some houses whether theywere allotted as per the guidelines stated by him. He admitted that lease deedin respect of the property in question was issued in the name of the firstdefendant. Then there is statement of the first defendant himself. He hassupported his case set out in the written statement. He said other parties wereliving in the house because of the relationship with the first defendant. Headmitted the family arrangement but said it was the plaintiff who backedaway from it and did not divide the house in question as per that familysettlement. He said it was he who was paying the house tax all through. He denied any contribution paid by any of the brothers towards constructionof the house. ( 6 ) AFTER examining the pleadings of the parties and the evidence bothoral and documentary, the learned Sub Judge in his well considered judgmentheld issue No. 1 and additional issue in favour of the first defendant andheld all other issues in favour of the plaintiff. He /held the family arrangement mark a to be inadmissible in evidence holding that it requiredregistration under Clause (b) of Sub-section (1) of Section 17 of the Registration Act as a document which was compulsorily registrable. The result wasthat the suit was dismissed with gcosts. j Mr. Jain; learned Counsel for theplaintiff-appellant said stress on the statement of the mother of the plaintiffand that of Veer Bhan Clerk from the office of the Land and Developmentoffice. To the extent that there was a family settlement he also relied uponthe statement of defendant No. 2 as well as of the first defendant. We maynote at this stage itself that before us defendant No. 2 now supported theplaintiff when earlier in his statement he had supported the first defendant. Mr. Jain stressed that the first defendant being head of the family had beenallotted the house in question in lieu of the properties left by the parties inpakistan. He also stressed that the construction of the house subsequently wasdone by pooling the resources of all the three brothers together. Mr. Jain stressed that the first defendant being head of the family had beenallotted the house in question in lieu of the properties left by the parties inpakistan. He also stressed that the construction of the house subsequently wasdone by pooling the resources of all the three brothers together. He said itwas the first defendant who was head of the family and relying on thestatement of Veer Bhan he said that the house was allotted in the name ofthe first defendant as head of the family. He also said that the amount ofcash received by the other parties was given to the first defendant for thepurpose of paying the full cost of the house and subsequent constructionthereon. To us it appears this is a half hearted approach to the problem. Thedocument do not support the case set up by the plaintiff . The fact remainsthat the house was allotted to the first defendant in lieu of the compensationpayable to him and the other parties received their respective compensationin cash. There is no evidence of any contribution paid by the plaintiff and thesecond defendant to the first defendant for further construction of the house,in fact second defendant stands condemned by his own statement. Mr. Manmohan Singh appearing for the first defendant said that though theapplication for compensation was joint it was split up and each of the partieshad got his/her individual share of compensation. The allotment letter (Ext. PW5/1) he said was in the name of the first defendant. He said the familysettlement mark a was inadmissible in evidence as rightly held by thelearned Sub Judge. ( 7 ) WE cannot find fault with the judgment of the learned Sub Judge. He has considered all the aspects of the matter in their proper perspective. It is possible that when the members had good relations there may not beenany record of any contribution and it could also be possible that the plaintiffand the second defendant did make some payment to the first defendant forfurther construction of the house, but that would not mean that by makingthis contribution they had become owner of the part of the house. Could itbe that the share of the plaintiff and second defendant was held benami inthe name of the first defendant ? Even if that be so Benami Transactions (Probition) Act, 1988. Could itbe that the share of the plaintiff and second defendant was held benami inthe name of the first defendant ? Even if that be so Benami Transactions (Probition) Act, 1988. would bar the remedy of these two brothers (seemithilesh Kumari and Another v. Prem Behari Khate, AIR 1989 S. C. 1247 ). Agreat deal of argument was addressed on the document mark a and tounderstand the scope and effect of this document which has been held to beinadmissible in evidence it may be appropriate to set out the same in full :- today, the 7/11/1965, Sardar Suddar Singh, Maluksingh, Sunder Singh, Sardar Jagat Singh of Tilak Nagar, Sardarjaswant Singh of Tilak Nagar, Sardar Beant Singh of Tilak Nagarand Sardar Sardul Singh of Hari Nagar have assembled to form apanchayat. As there was difference regarding house No. 36/15. Ashok Nagar, in which Sujan Singh, Rawel Chand and Jai Devisingh and their mother live and concerning other household effectswhich became the cause of dispute. Accordingly, all the threebrothers unanimously called the Panchayat consisting of the abovesaid members and they accepted the following decision of thepanchayat. (1) The entire lower portion of the house shall be with Rawelchand, Jai Dev Singh and their mother. Both have equal sharein the lower portion. (2) The upper portion which has been newly constructed has cometo the share of Sujan Singh. (3) Rawel Chand, Jai Dev and their mother have no concern withthe upper portion and Sujan Singh has no concern with thelower portion. They themselves shall divide among themselvesthe remaining household effects according to the list. If theyare unable to divide the same themselves, then they may callsome members of the Panchayat and get the household goodsdivided. Rawel Chand and Jai Dev have no right to the goodsconcerning the marriage of Sujan Singh. Whatever loan hasbeen raised in connection with the aforesaid house by any oneof them, he will be liable to pay the same. Sujan Singh shall bring and give to his mother Rs. 1700. 00 which arewith Ahliya Devi in Rama Krishan Puram. Sujan Singh shall haveto give tohis mother this sum by April, 1966. After this decision, the formalities concerning the division ofhousehold goods stand completed. Keeping in view the just decision made by the Panchayat, weare satisfied that no dispute of any kind is left over. 1700. 00 which arewith Ahliya Devi in Rama Krishan Puram. Sujan Singh shall haveto give tohis mother this sum by April, 1966. After this decision, the formalities concerning the division ofhousehold goods stand completed. Keeping in view the just decision made by the Panchayat, weare satisfied that no dispute of any kind is left over. If we raise any kind of dispute among ourselves after this, theperson who is held guilty by this Panchayat shall have to payrs. 500. 00 as fine. Sujan Singh shall shift ftom the ground floor to the upperportion with his entire goods within one month. In the meantimehe shall construct his own separate passage leading to the upperportion. In this way they shall have separate passage for themselves. Hence this writing has been executed before the Panchayat sothat it may be of service in time of need. The panics shall get thiswriting made on a stamp paper of Rs 2. 00 within a period of15 days. " ( 8 ) UNDER Clause (b) of Sub-section (1) of Section 17 of the Registration Act, 1908, a document of the following description is compulsorily registrable: (B) non-testamentary instruments which purport or opereate tocreate, declare, assign, limit, or extinguish, whether in present or infuture, any right, title or interest, whether vested or contingent, ofthe value of one hundred rupees and upwards, to or in immovableproprty; ( 9 ) THEN under Section 49 of this Act if such a document is notregistered it shall not affect any immovable property comprised therein, orbe received as evidence of any transaction affecting such property. Theproviso to Section 49 is as under :- "provided that an unregistered document affecting immovableproperty and required by this Act or the Transfer of Property Act,1882 (4 of 1882), to be registered may be received as evidence of acontract in a suit for specific performance under Chapter 11 of thespecific Relief Act, 1877 (I of 1877), or as evidence of part performance of a contract for the purposes of Section 53a of thetransfer of Property Act, 1882 (4 of 1882), or as evidence of anycollateral, transaction not required to be effected by registeredinstrument. "we are, however, not concerned with the proviso in the presentcontroversy between the parties. "we are, however, not concerned with the proviso in the presentcontroversy between the parties. ( 10 ) IN Roshan Singh and Others v. Zile Singh and Others, AIR 1988 S C. 88l, it has been clearly held that if the writing itself affects a division itmust be registered. On the question as to how look at the family settlementmark a the following passage from the judgment of the Supreme Court inroshan Singh s case would be quite apt.- "it is well settled that while an instrument of partition whichoperates or is intended to operate as a declared volition constitutingor severing ownership and chuses a change of legal relation to theproperty divided amongst the parties to it. requires registrationunder Section 17 (1) (b) of the Act, a writing which merely recitesthat there has in time past been a partition, is not a declaration ofwill, 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 thepartition transaction or contains meraly an incidental recital of apreviously completed transaction. The use of the past tense does notnecessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at apartition is not an instrument of partition and does not requireregistration. Section 17 (l) (b) lays down that a document for whichregistration is compulsory should, by its own force, operate orpurport to operate to create or declare some right in immovableproperty. Therefore, a mere recital of what has already taken placecannot be held to declare any right and there would be no necessityof registering such a document. Two propositions must thereforeflow : (1) A partition may be effected orally; but if it is subsequentlyreduced into a form of a document and that document purports byitself to effect a division and embodies all the terms of bargain itwill be necessary to register it. It be not registered. Section 49 ofthe Act will prevent its being admitted in evidence. Secondlyevidence of the factum of partition will not be admissible by reasonof Section 91 of the Evidence Act, 1872. (2) Partition lists which aremere records of a previously completed partition between theparties, will be admitted in evidence even though they are unregistered, to prove the fact of partition : See Mulla s Registration Act8th Edn Jpp. 54-57. Secondlyevidence of the factum of partition will not be admissible by reasonof Section 91 of the Evidence Act, 1872. (2) Partition lists which aremere records of a previously completed partition between theparties, will be admitted in evidence even though they are unregistered, to prove the fact of partition : See Mulla s Registration Act8th Edn Jpp. 54-57. " ( 11 ) IN Tek Bahadur Bhuji v. Debi Singh Bhujil and Others AIR 1976 S. C. 292 the Supreme Court said as under on the essentials of family arrangement vis-a-vis its requirement for registration :- "family arrangement as such can be arrived at orally Its termsmay be recorded in writing as a memorandum of what had beenagreed upon. The memorandum need not be prepared for thepurpose of being used as a document on which future title of theparties is be founded. It is generally prepared as a record of whathad been agreed upon, in order that there are no hazy notionsabove it in future. It is only when the family arrangement reducedin writing with the purpose of using that writing as proof of whatthey had arranged and, where the arrangement is brought about bythe document as such, that the document requires registrationbecause it is then that it would amount to a document of titledeclaring for future what rights and in what properties the partiespossess. But a document which is no more than a memorandum ofwhat had been agreed to between the parties does not requirecompulsory registration under Section 17 of the Registration Act. " ( 12 ) IF reference be made to document mark a keeping in view theprinciples of law as laid down it is apparent that entire lowew portion of thehouse was given to the Plaintiff and the second defendant and their motherboth these brothers having equal shares. The upper portion which had beennewly constructed came to the share of first defendant Sujan Singh Household items were to be divided by the parties themselves. First defendant Sujansingh was also required to shift from the ground floor to the upper portionwhich had come to his share with his entire goods within one month. He wasalso required to construct his own separate passage leading to the wasportion To such a document provisions of Section 17 (l) (b) are clearlyattracted. It was to be registered and not having done so Section 49 wouldbar this document to be of any consequence. He wasalso required to construct his own separate passage leading to the wasportion To such a document provisions of Section 17 (l) (b) are clearlyattracted. It was to be registered and not having done so Section 49 wouldbar this document to be of any consequence. We agree with the conclusionsarrived at by the learned Subordinate Judge, but "we should not be taken tohave said anything on the applicability of proviso to Section 49 of theregistration Act to the family settlement mark a. During the couse ofhearing of the appeal we made attempts if the matter could be settledbetween the parties, but we were not successful. The appeal is therefore dismissed. In the circumstances we will leave the parties to bear their own costs.