Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1113 (MP)

Chandra Prakash Soni v. Dwarka Prasad Soni

2008-09-05

SANJAY YADAV

body2008
ORDER 1. Being aggrieved of the order dated 1.8.2008 passed in Civil Suit No. 69-A/2008 by III Civil Judge, Class II, Narsinghpur, the petitioner has preferred present writ petition under Article 227 of the Constitution of India. By the impugned order the objection raised by the petitioner defendant in respect of the admissibility of the partition deed on the ground that the same is not registered under Registration Act, 1908 came to be rejected. 2. The facts in nutshell are that the respondent No.1 has filed a suit for declaration of the entitlement of his share in family property on the basis of family partition, the claim is objected to by other brother, i.e., the petitioner. The case of the respondent-plaintiff before the trial Court is that the house property and the immovable property situated at Mouja Kandeli, Narsinghpur was a Joint Hindu Undivided Property and as per family settlement, the respective members were placed in physical possession of their respective shares in the year 1988-89. In year 1995 the aforesaid settlement was reduced in writing under the nomenclature family settlement. Some dispute, however, arose in the year 1997 between the petitioner and respondent in respect of partition wall but the matter came to be settled in family panchayat on 8.11.1997, whereby both the parties agreed to remain in occupation of their respective shares. Thereafter, in December, 2002 the respondent-plaintiff approached the petitioner requesting him to construct the partition wall as agreed; however, since the petitioner did not accede to the request, the respondent plaintiff filed the suit in question seeking the declaration to that effect. In said suit an objection was raised by the petitioner-defendant that the family arrangement relied upon by the petitioner-plaintiff since was not registered under the Registration Act, 1908, the same cannot be taken into evidence. The trial Court, however, while relying upon the judgment of the apex Court rendered in the case of Devchand and others v. Shivram and others [1970 JU 66 = 1970 MPU 371] overruled the objection by his order dated 1.8.2006. It is this order which is under challenge in this writ petition under Article 227 of the Constitution of India. 3. It is this order which is under challenge in this writ petition under Article 227 of the Constitution of India. 3. Challenging the order it is urged by the learned counsel for the petitioner-defendant that since the partition in metes and bounds was by virtue of partition deed dated 23.2.1995, Annexure P-3, was thus compulsorily registrable, it is urged that the trial Court was not justified in holding that the deed dated 23.2.1995 was only a memorandum or acknowledgment of a former partition orally made and therefore the non-registration thereof will not be a bar to accept the same in evidence. 4. Considered the submission put forth by the learned counsel for the petitioner. 5. A jurisprudential title to a property, as observed in the case' of S.vndicate Bank v. Estate officer and Manager, APHC Ltd. [ (2007) 8 SCC 361 Paragraph 29], "may not be a title of an owner. A title which is subordinate to an owner and which need not be created by reason of a registered deed of conveyance may at times create title". It was further observed by Their Lordships in Paragraph 40 that "A person may acquire a title to a property irrespective of the nature thereof by several modes e.g., a lease of land which doe:-, not require registration; (ii) by partition of a joint family property by way of family settlement, which does not require registration. : Sections 17 (I) (b) and 17 (2) (i) of the Registration Act, ] 908 stipulates: "17. Documents of which registration is compulsory. -- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely: (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (2) Nothing in clauses (b) and (c) of sub-section (1) applies to -- (i) any composition deed." 6. Thus when a deed of partition reduced in writing in a formal document intended to be an evidence of partition is compulsory registrable under the Registration Act, 1908. However, if it does not evidence any partition in metes and bounds, but is a mere recital of a former partition orally made, it would be outside the purview of section 17 (1) (b) of the Act of 1908. 7. In the case of K.G. Shivalingappa v. G.S. Eswarappa [ AIR 2004 SC 4130 ] Their Lordships were pleased to observe: "13. In Nani Bai v. Gita Bai Kom Rama Gunge [ AIR 1958 SC 706 ], it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsory registered under section 17 (1) (b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of section 17 (1) (b) of the Indian Registration Act. This decision was followed in Shiromani and others v. Hem Kumar and others [ AIR 1968 SC 1299 ] and Roshan Singh v. Zile Singh [ AIR 1988 SC 881 ]. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Ambadas Bukate [ (1996) 6 SCC 373 ], after analyzing the judgments, referred to above, this Court observed: 'Partition, specially among the coparceners, would be a "Transfer" for purpose of Registration Act, 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge [ AIR 1958 SC 706 ] and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would fall within the mischief of section 17 (1) (b) of the Registration Act under which the document is compulsorily registrable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar [ AIR 1968 SC 1299 ] and Roshan Singh v. Zile Singh [ AIR 1988 SC 881 ]. 8. A perusal of family partition deed, Annexure P-3 reveals that there was a former oral partition amongst the family members in metes and bounds and the respective members were placed in physical possession, and therefore, the same was not registrable under section 17 (2) (i) of the Act of 1908. 9. Having thus considered this Court does not find any substance in the petition and the same is hereby dismissed. 10. It is, however, made clear that this Court has not expressed its view on the merit of the case which is to be decided on its own facts. Any observation made hereinabove to substantiate the reasonings will not bind the trial Court to decide the suit on its own merit. 11. With the above observation, the petition stands disposed in limine.