Judgment 1. By this appeal, the appellants have challenged the judgment and decree passed by the 9th District Judge, Nagpur in Regular Civil Appeal No.86 of 2011 on 17.7.2012 modifying the judgment and decree passed by the 8th Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.729 of 2008 on 20th December, 2010. The respondent is the original plaintiff and the appellants are the original defendants against whom the respondent had filed civil suit for partition and separate possession. For the sake of convenience parties to the appeal are hereinafter referred to as the plaintiff and the defendants. 2. The defendant No.1 Smt Vandana is the stepmother of the plaintiff. Defendant No.2 Yogesh and defendant No.4Smt. Pinky are respectively the real brother and real sister of the plaintiff, while defendant No.3 Nitin and defendant No.5Smt. Vijeta are respectively the stepbrother and stepsister of the plaintiff. The plaintiff is the son of late Ramanna Marchettiwar, who died on 13.3.1990 leaving behind the plaintiff, defendants and one Sandeep. Late Ramanna Marchettiwar owned a house with plot bearing Corporation House No.283, New House No.283-A and city survey No.495 admeasuring 450 sq. ft. (hereinafter referred to as “suit property”). He died intestate and the plaintiff and the defendants being class-I heirs of late Ramanna succeeded to the suit property, having equal shares therein. The plaintiff submitted that Sandeep had separated himself by obtaining a sum of Rs.78,000/- on 3.1.2007 and executed a relinquishment-deed giving up his right in the suit property. The plaintiff submitted that Sandeep had relinquished his share in favour of rest of the successors to the property and, therefore, each of the legal heirs had equal 1/6th share in the suit property. He further submitted that since the defendant No.1 and defendant No.3 used to quarrel with him, he decided to separate himself from the family and demanded his separate 1/6th share in the suit property. Meanwhile, the plaintiff further submitted, the defendant demolished the old house and caused loss to him which came to Rs.25,000/-, commensurate with his 1/6th share in the suit property. Since the defendants denied separate share and compensation to the plaintiff, he filed a suit for partition and separate possession and also compensation of Rs.25,000/- with interest at 12% per annum against the defendants. 3. Since the defendants denied separate share and compensation to the plaintiff, he filed a suit for partition and separate possession and also compensation of Rs.25,000/- with interest at 12% per annum against the defendants. 3. The defendants resisted the suit insofar as it related to claim put up by the plaintiff about his 1/6th separate share in the suit property. The defendants admitted the relationship and also entitlement of the plaintiff to his share in the suit property. But, they submitted that when Sandeep separated himself from the family and he had released his right and interest in the suit property exclusively in favour of defendant No.1 Vandana by accepting an amount of Rs.78,000/- from her, which amount was entirely borne by her, the defendant No.1 became entitled not only to her own 1/7th share, but also 1/7th share of Sandeep in the suit property. Thus, they submitted, defendant No.1 was entitled to 2/7th share in the suit property and plaintiff could only claim 1/7th share in the suit property and not the 1/6th share. They submitted that the plaintiff had been residing separately since about one and half year prior to filing of the suit and he had not contributed in any way in the household affairs of the joint family. They also submitted that since the suit house was old, it was demolished by them and they constructed a new house. They submitted that the plaintiff did not make any contribution towards construction of a new house. They also offered to pay Rs. 64,285/- as value of 1/7th share to the plaintiff towards full and final settlement of the dispute between them. 4. The trial Court framed the issues and recorded the evidence and after considering the argument of both sides decreed the suit with costs. It declared that the plaintiff was entitled for partition and separate share out of the suit property to the extent of 1/7th equal share and also granted compensation of Rs.15,000/- in lieu of demolition of previous construction by it’s judgment and decree passed on 20th September, 2010. In the first appeal filed against it by the plaintiff, the learned District Judge modified the judgment and decree of the trial Court and instead of 1/7th share, it gave 1/6th share to the plaintiff and defendants. In the first appeal filed against it by the plaintiff, the learned District Judge modified the judgment and decree of the trial Court and instead of 1/7th share, it gave 1/6th share to the plaintiff and defendants. It also directed appointment of Court Commissioner for making necessary inquiry for distribution of share of the plaintiff and separate possession by metes and bounds. Not satisfied with the judgment and decree of the first appellate Court passed on 17.7.2012, the defendants are before this Court in the present second appeal. 5. The appeal was admitted by this Court on 4.12.2013. The substantial questions of law that arise for my consideration are:- “1. Whether the first appellate Court was justified in granting 1/6th share to the respondents in the suit property? 2. Whether the suit property was capable of being subjected to equal divisions by metes and bounds without any application of principle of owelty or equality in value of shares?” 6. In this case, rival parties placed their reliance upon one document vide Exhibit-45 which they called relinquishment-deed, in order to justify their respective stands. The defendants submitted that this document at Exhibit 45 showed that Sandeep had relinquished his share and since there was an admission given by the plaintiff that he had not contributed anything towards payment of the amount of Rs. 78,000/- to Sandeep for release of his share in the suit property, it would mean that release was only in favour of defendant No.1 and not in favour of all co-sharers. They then claimed that such release of share would only make share of plaintiff as 1/7th and not 1/6th as claimed by him. On the basis of the same document or relinquishment-deed the plaintiff submitted that it sufficiently established the fact, which was clear from its recitals, that Sandeep had relinquished his share in favour of all the co-sharers and not any single co-sharer, and this would give him 1/6th share in the suit property. 7. These rival contentions were rejected by the trial Court on a legal ground. 7. These rival contentions were rejected by the trial Court on a legal ground. The trial Court reasoned that even though the document at Exhibit45 was admitted by both the parties, it was a document whereby right, title and interest in immovable property having value of more than Rs.100/- had been relinquished or released in favour of other co-sharers and, therefore, it required execution on a proper stamp as well as compulsory registration under Section 17 of the Registration Act, 1908. As this document was not a registered one, though compulsorily registrable, the trial Court did not take it into consideration and proceeded to hold that each of the co-sharers would have equal shares. Accordingly, the trial Court declared that the plaintiff was entitled for his share out of the suit property to the extent of 1/7th portion. 8. The first appellate Court while reversing the finding of the trial Court held that the plaintiff and the defendants, six in number, were entitled to have equal shares in the suit property and gave each of them 1/6th share. The first appellate Court took into account said relinquishment-deed, styled as partition-deed (Exhibit-45), and it particularly referred to the recitals of this document which stated that Sandeep the party No.1, had relinquished his share in favour of party Nos.2 to 7 i.e. plaintiff and the defendants. The first appellate Court found that since Sandeep had already relinquished his share, it was not necessary to carve out his share and, therefore, the first appellate Court gave 1/6th share to each of the six parties to the present dispute i.e. plaintiff and the defendants. The first appellate Court did not consider the requirement of compulsory registration of the document under Section 17 of the Registration Act, 1908. It appears that it read in evidence this document on the premise that when a coparcener or co-sharer in a joint property can surrender his share orally at the time of partition and when partition-deed has not been disputed by any of the rival parties, the partition or the relinquishment-deed vide Exhibit-45, can also be read in evidence. 9. Learned counsel for the plaintiff submits that since this document was admitted by the defendants, there was no need for the first appellate Court to reject it on the ground of it being an unregistered document. 9. Learned counsel for the plaintiff submits that since this document was admitted by the defendants, there was no need for the first appellate Court to reject it on the ground of it being an unregistered document. He further submitted that this document, witnesses only a transaction of family settlement in which there was neither any transfer of interest nor creation of interest and, therefore this document would not require any registration. In support, he has placed reliance upon the decision of the Uttrakhand High Court in the case of Mani Ram vs. Padam Datta (D) by LRs. and another, reported in AIR 2007 Uttarakhand 74. 10. I think, the reasoning given by the first appellate Court and also the contentions canvassed on behalf of the plaintiff do not have any legal basis. The document Exhibit45 though styled as a partition actually witnesses transfer of interest in immovable property for a consideration. True construction of such a document can be made only by gathering from it’s terms as a whole, recitals and attending circumstances, the intention of the parties. In this regard, a useful reference may be made to law laid down by Hon’ble Supreme Court in the case of B.K. Muniraju vs. State of Karnataka and others, reported in (2008) 4 SCC 451 , Hon’ble Supreme Court in para 18 it observed as under: “In order to know the real nature of the document, one has to look into the recitals of the document, and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking in-to-to the extent permissible the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction.” 11. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction.” 11. Speaking about the present case, if it is seen that the intention of the parties is only to add or alter or enlarge the existing shares and not to operate it as transfer or conveyance, as gathered by applying the above-stated principles, it may assume the form of family settlement, not requiring registration. Here by said document Sandeep has accepted an amount of Rs.78,000/- and in lieu thereof, has released his share in favour of other co-sharers. Though the word ‘release’ has been used, the intention of the parties, as disclosed by it’s terms, recitals and other attending circumstances, is to effect transfer of right, interest or title over the suit property, to the extent of 1/7th share therein, to remaining parties for a consideration of Rs.78,000/-. It also shows intention to extinguish forever the right, title or interest of Sandeep in the suit property. Such a document cannot be construed as a mere family settlement or something which does not transfer right, title or interest and which only enlarges present shares of other co-owners. Apart from transfer of property, it also discloses intention of parties to permanently extinguish right, title or interest of one of the co-owners in suit property. Such a document, therefore, would be covered by the provision of Section 17(1) of the Registration Act, 1908, requiring compulsory registration. This document (Exhibit-45) being not registered, cannot, therefore, be read in evidence. Besides, undisputedly it is insufficiently stamped and there being no compliance with proviso to Section 34 of the Bombay Stamps Act, 1958, it is inadmissible in evidence. Therefore, the trial Court rightly rejected it and the first appellate Court should not have placed any reliance upon it. 12. Even in the said case of Mani Ram (supra), the High Court found that since by the document dated 27.3.1961 in question there, there was division of 1/3rd share of each of the sons by executant Jeet Ram Bahuguna, who left no share for himself, the act amounted to relinquishment of his interest in the property and, therefore, that document was found to be covered by clause (b) of Section 17 of the Registration Act, 1908. In other words, Uttarakhand High Court held that whenever a person by a document relinquishes interest in the immovable property covered by clause (b) of Section 17 of the Registration Act, 1908, it would require registration. So this case, on facts and law does not support the plaintiff. 13. Mr. Verma, learned counsel for the plaintiff has argued that the document vide Exhibit45 is required to be read as a whole and then it would be found that this document cannot be considered to be creating or transferring or extinguishing right, title or interest and, therefore, would not require any compulsory registration. He places reliance upon the case of Garuda Satyanarayana vs. G. Venkatachalapathi, reported in AIR 1969 Andhra Pradesh 131. In this case, it has been observed by the learned Single Judge of Andhra Pradesh High Court that while constructing a document which purports to extinguish or create title or interest in the property, intention of the parties should be taken into account and the document be read as a whole. It is also held that there is a distinction between mere recital of a fact and something which in itself creates or extinguishes a right or interest. There can be no dispute about the proposition of law and in fact it has been applied by me while construing the document at Exhibit-45, as can be seen from the discussion made earlier. 14. For these reasons, I find no substance in the argument advanced by learned counsel for the plaintiff that there was nothing wrong on the part of the first appellate Court in taking into consideration the partition or relinquishment–deed vide Exhibit-45. The first appellate Court has ignored the legal principles in construing the document and wrongly placed reliance upon it in recording its findings. Such findings are perverse and cannot be sustained in law. It would then follow that all the seven co-owners would have equal rights and the suit property would have to divided into seven equal parts with 1/7th share each being allotted to the plaintiff and the defendants. This is what the trial Court has done and rightly so. The decree of the trial Court in this regard, therefore, is required to be restored. The first substantial question of law is answered accordingly. 15. This is what the trial Court has done and rightly so. The decree of the trial Court in this regard, therefore, is required to be restored. The first substantial question of law is answered accordingly. 15. As regards practicability of the suit property being subjected to equal divisions by metes and bounds, one has to take into consideration the total area of the suit property. The suit property is a plot with a house constructed thereon. It’s total area is admittedly 450 sq.ft. and it is obvious that in such a small area, if seven shares are carved out, and separately allotted, it would be well nigh impossible for the plaintiff and each of the other co-sharers to enjoy the suit property fully and satisfactorily. If such a plot is divided in seven equal parts, what would come to the share of the plaintiff would be a minuscule piece of land having area of not more than 64.29 sq. ft. In such a small area, I do not think any workable construction can be made and even permission for construction under the present Municipal Laws would be difficult to come by. This problem, in my opinion, can be solved by applying the principle of owelty. 16. In the case of Badri Narain Prasad Choudhary and others vs. Nil Ratan Sarkar, reported in (1978) 3 SCC 30 referred to me by the learned counsel for the defendants, the Hon’ble Supreme Court has explained the principle of owelty. It is held that when the suit property is incapable of division in specie, or in other words when it is not possible to carve out specific shares from the suit property and allot them separately to the co-sharers or coparceners for their effective enjoyment, the rights and interests in the property should be separated, only by allowing one of them to retain the whole of the property on payment of just compensation to the other. In paragraph 19, page 35, the Hon’ble Supreme Court in this case has observed thus:- “The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interest of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court in R. Ramaprasada Rao vs. R. Subbaramaiah), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the court to partition property by any equitable method is not affected by the said Act.” 17. In the earlier case of T.S. Swaminatha Odayar vs. Official Receiver of West Tanjore, reported in AIR 1957 SC 577 also, the Hon’ble Apex Court has elaborated the principle of owelty. It means when it is not possible to divide the property by metes and bounds, there being necessity of allocation of properties of unequal values amongst the members of the joint family creating a situation of inequality, there would have to be adjustment of the values by prodding for the payment, by a member getting property of larger value, to the member receiving lesser property. Such equalizing of shares has been recognized in law and a provision for such payment is termed “a provision for owelty or equality of partition”. The observations of the Hon’ble Apex Court appearing in paragraph 16 are useful in this regard and they are reproduced thus: “This position has been summarized in Freeman’s Co-tenancy and Partition (1886 Edition) page 676, para 507 under the caption of “Owelty”: “Owelty” : When an equal partition cannot be otherwise made, Courts of equity may order that a certain sum be paid by the party to whom the most valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called ‘Owelty’. It is a lien on the property on account of which it was granted. “The law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or a sufficient security for it.” The lien on owelty has precedence over prior mortgages and other liens existing against the co-tenant against whom the owelty was awarded.” 18. Learned counsel for the defendants has in fact strongly advocated for application of the said principle of owelty or equalizing of the value of the shares while distributing them to the co-sharers in this case. Learned counsel for the plaintiff, however, does not agree. Learned counsel for the defendants has in fact strongly advocated for application of the said principle of owelty or equalizing of the value of the shares while distributing them to the co-sharers in this case. Learned counsel for the plaintiff, however, does not agree. He submits that the first appellate Court had considered the application of this principle and had found that it could not be straight way applied as it was not possible to give any positive finding as to whether or not the suit property was incapable of division by metes and bounds. But, the learned counsel for the plaintiff could not provide any satisfactory answer to the question as to how separate and independent construction is possible on a small area of about 64 sq.ft. As a matter of fact, it requires no evidence to say that separate and independent construction is not possible on such a small area as it is, res ipsa loquitur the thing speaks for itself. It, by its very nature, announces to the whole world that a separate and independent construction of livable room under the present set up of Municipal Laws is not possible. Besides, there is also balance of convenience tilting in favour of the defendants. They are already occupying the suit property and plaintiff is admittedly staying separately from them. Then, this case is also not covered by Sections 2 and 3 of the Partition Act, 1893. Therefore, in my opinion this is a fit case, wherein the principle of owelty, as evolved in afore-stated cases, must be applied. Second substantial question of law is answered accordingly. 19. In the circumstances, I find that the parties already in possession of the suit property should retain the same and party not in possession thereof should get compensation equal in value of his share in the suit property, on the basis of principle of owelty. The appeal deserves to be allowed in these terms. 20. Thus, the appeal is allowed and the judgment and decree of the first appellate Court dated 17.7.2012 are hereby quashed and set aside. 21. The judgment and decree of the trial Court dated 20th December, 2013 are modified and substituted by following directions:- (A) The plaintiff and the defendants shall have 1/7th share each in the suit property as described in para 3 of the plaint. 21. The judgment and decree of the trial Court dated 20th December, 2013 are modified and substituted by following directions:- (A) The plaintiff and the defendants shall have 1/7th share each in the suit property as described in para 3 of the plaint. (B) The defendants shall be entitled to retain with themselves the whole suit property together with a house thereon and plaintiff shall be entitled to receive compensation in money, in lieu of his 1/7th share, in the suit property. (C) Compensation payable to the plaintiff shall be determined and assessed at market rate. (D) The Court Commissioner be appointed for making necessary inquiry in accordance with law for payment of compensation to the plaintiff equal to the value of his 1/7th share in the suit property at market rate. (E) The defendants shall pay to the plaintiff an amount of Rs.15,000/- towards costs and compensation for the demolition of the previous construction together with interest at the rate of 6% p.a. within 3 months from the date of this order. If any amount is deposited in lower Court by defendants in execution proceedings, it shall be adjusted in payment of principal amount of Rs.15,000/- towards costs and compensation, under this head. (F) Costs shall follow the result. (G) Decree be drawn up accordingly.