(This appeal is filed under section 100 of Code of Civil Procedure, 1908 against the judgment and decree dated 16.06.2009 passed in R.A.No.60/2008 on the filed of the Principal District & Sessions Judge, Bangalore Rural District, Bangalore dismissing the appeal against the judgment and decree dated 13.12.2007 passed in O.S.No. 149/2006 on the file of the Civil Judge (Sr.Dn) and JMFC, Davanagere.)

Heard the learned counsel for the appellant.

2. The brief facts of the case are as follows:-

The appellants were the plaintiffs before the trial Court and are accordingly referred to for the sake of convenience. The plaintiff s are residents of Tharabanahalli, Jala Hobli, Bangalore North Taluk. They claim that the suit properties are their joint family properties. The propositus was one Appayanna and one Huchappa, who owned and possessed + immovable properties of the village. The family consisted of over one hundred and twenty members. It is the plaintiffs’ case that in order to enjoy the family properties separately a “panchayath palupatti” or “panchayath partition” was effected and was reduced to writing on 20.2.1990. The particulars of the items of the property allotted to the plaintiffs’ branch forms the suit properties. The plaintiff s as well as the other members of the several branches of the family had subscribed their hand to the family arrangement and settlement and the respective parties had over a period of time enjoyed their respective shares. The revenue records were similarly effected in the names of the respective parties. The properties have been improved and developed over the years. It is the plaintiffs’ claim that they have secured one acre of land as their share. Defendant No.4, who is a stranger to the family sought to interfere with the said item of land bearing Survey No.61/2. It was found that the claim of the fourth defendant was that he had purchased the same from the first defendant without the knowledge or consent of the plaintiffs though it was allotted to the share of the plaintiffs. The first defendant had no right or interest which e could convey in favour of the fourth defendant. It was in the background that the suit was filed for declaration in respect of the said item of land.

The suit was contested by the fourth defendant and it was claimed that he had entered into an agreement of sale with the first defendant and the sale transaction not having been completed the fourth defendant was constrained to file a suit for specific performance of agreement. The same having been decreed, it was executed. Therefore he had acquired an absolute right over the suit land. It was contended that the plaintiffs’ suit was hence not maintainable.

After a full-fledged trial, the trial Court dismissed the suit. This finding having been confirmed in an appeal, the present second appeal is filed.

3. The matter was heard at length for admission.

4. The primary substantial question of law that is sought to be canvassed is that Exhibit P2 which is a record of the family arrangement entered into by the members of the family, though not registered was ignored by both the Courts below, which has resulted in a miscarriage of justice. Hence, the learned counsel for the appellant would seek to contend that the document did not require registration as it was in the nature of a family arrangement or a record of partition effected through the village panchayath. The learned counsel also produced the document, which from its tenor indicated that the properties had been agreed to be shared in the manner recorded therein, and such an agreement was arrived at immediately prior to the execution of the same at the panchayath. It was that agreement which was reduced to writing. This according to the learned counsel for the appellant was a mere record of an earlier partition and therefore, did not require registration. It is this argument which is canvassed at length, as this Court was of the prima-facie opinion that the deed in question required registration.

5. The learned counsel placed reliance on several authorities to urge that Exhibit P2 did not suffer from want of registration as it was not compulsorily registerable. The several citations are as follows:-

1. ROSHAN SINGH AND OTHERS . VS. ZILE SINGH AND OTHERS (AIR 1988 SC 881 [LQ/SC/1988/134] );

2. VEERAPPA AND OTHERS VS. SMT.HALAVVA AND OTHERS (ILR 2008 KAR 2159);

3. LAKKAWWA VS. GOURAWWA AND OTHERS (1991) 1 KLJ 749;

4. MATURI PULLAIAH AND ANOTHER VS. V. MATURI NARASIMHAM AND OTHERS (AIR 1966 SC 1836 [LQ/SC/1966/70] ); and

5. KALE AND OTHERS VS. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS (1976) 3 S.C.R.202.

6. The learned counsel would contend that apart from Exhibit P2 the suit item of property was part of land that was conferred by way of occupancy rights in favour of the kartha of the family and since the grant of occupancy rights was for the benefit of the family, the item of land which was part of the land granted by the Tribunal is also recorded in the partition deed and by virtue of such grant of the land and allotment of share by the members of the family, it could not said that the plaintiffs could not lay claim to the land de hors Exhibit P2. Further, insofar as the suit filed by the fourth defendant for specific performance of the agreement of sale was concerned, this was again characterized as a collusive suit and that the transaction was one without the knowledge of the plaintiffs or without his consent and therefore such a collusive decree would not bind the plaintiffs. It is further contended that the lower appellate Court has failed to address the several grounds of appeal that were raised and even if the plaintiffs contention as regards the want of registration or otherwise of Exhibit P2 has to be considered, it would required the lower appellate Court to afford an opportunity of hearing to the appellant to consider the several grounds that are raised. Failing which, a valuable right has been taken away by the lower appellate Court, in not having addressed the several questions of fact which required to be addressed. It is in this vein that the learned counsel for the appellant would seek to canvass the several substantial questions of law sought to be framed, apart from the validity or otherwise of Exhibit P2.

7. In considering this appeal, the endeavour of the appellants to establish their right over the suit property in several different ways apart from relying on Exhibit P2, as can be seen, is always with a direct or an indirect reference to Exhibit P2. Therefore the moot question is whether Exhibit P2 was a memorandum of partition or it is to be construed as a partition deed, and whether it was invalid for want of registration, in which event, it could not be relied upon in evidence and could not be the basis for the appellant’s case.

Insofar as the several judgments that are cited, are concerned, in KALE’s case supra, on facts, it is found that the land which was the subject-matter of that case was land granted under the U.P.Zamindari Abolition and Land Reforms Act, 1951, under which married daughters were not entitled to a share in the property. The dispute was as between the nephew and the son of the person to whom the land had been granted. In proceedings before the Tahsildar and thereafter before the Assistant Commissioner, a compromise petition was filed and the authorities after recording the compromise had allotted the shares as agreed between the parties, which having been challenged by the daughters in separate proceedings, the dispute was the subject-matter of the proceedings before the Apex Court. It is with reference to those circumstances that the Apex Court. It is with reference to those circumstances that the Apex Court after extensively referring to the case law has ultimately held that on consideration of the facts and circumstances, the Court was of the opinion that it was a family settlement and did not contravene any provisions of law but was a legal and valid binding settlement in accordance with law. Therefore, it cannot be said that the facts of that case can be pressed into service in applying the law as laid down therein to the present case on hand.

Insofar as the judgment in ROSHAN SINGH’s case is concerned, this was a case where the Supreme Court was addressing whether a particular document was an instrument of partition and therefore inadmissible for want of registration under Section 49 of the Indian registration Act, 1908 or was merely a memorandum of family partition arrived at by the parties with a view to record an earlier determination of their shares. The Supreme Court found that there was a partition by metes and bounds of the agricultural lands effected in the year 1955 itself and the shares, allotted to the two branches which had been locked in legal battle, were ultimately mutated in the revenue records and there was a disruption of the joint status. All that remained was the partition of an ancestral residential house called “rihaishi”, and a smaller house called “Baithak” and “ghers”. The document in question did not effect a partition but merely recorded the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide, it was held by the Apex Court, did not require registration, but if the writing itself effected a division, it is registerable. The apex court referred to the judgments in RAJANGAM AYYAR, VS. RAJANGAM AYYAR (1923) 69 Ind Cas 123:AIR 1922 PC 266) and NANA BAI.VS. GITA BAI (AIR 1958 SC 706 [LQ/SC/1958/51] ) in this regard. Therefore, the said judgment would be directly opposed to the proposition put forth by the learned counsel for the appellant.

In MATURI PULLAIAH’s case4 supra, the Supreme Court was considering the essentials of family arrangement and it observed that family arrangements will not creating an interest in immovable property did not require registration. This case does not again help the appellant to sustain the proposition put forth that the deed of partition was not required to be registered.

In LAKKAWWA’s case though the Head Note published in the report indicates that a family arrangement deed did niot require registration, the body of the judgment does not contain any such opinion, nor in any such point discussed and therefore the Head note is misleading and would not apply to the facts of the present case.

In VEERAPPA’s case, a learned Single Judge of this Court was considering the scope of a palu patti in that particular case and from the body of the judgment there is no discussion of the case law. Hence, it would be an authority for that particular case and cannot be pressed into service in the case on hand.

8. As seen from the tenor of the document in ue3stion in the present case on hand, it is not as if there was an oral arrangement between the parties several years prior to the execution of the document. Such an agreement preceded the execution of the document. Therefore it was a continuous process whereby the parties had discussed the terms of settlement and had reduced it into writing dividing the properties amongst themselves and therefore, it was in the nature of a partition deed and cannot be construed as a memorandum of oral partition. If that position is accepted, the law of the land would require that the document be registered.

9. The consistent view in this regard is evidenced from the following authorities:-

10. In Thakur Umrao Singh and another vs.Thakur Lachhman Singh, (1911) Law Reports Volume 38 Indian Appeals Page 104, in an appeal before the Privy Council, the principal question decided was as to the right of succession to certain estates. The controversy between the parties was as to which of several documents propounded was operative in law to regulate the succession. A document, which read as follows, was the basis for the suit:-

“As the British Government has conferred on me generation after generation the proprietary right in Ramkote estate therefore I wish and file this application that after my death Umrao Singh the eldest son (sic) my estate should continue in my family undivided in accordance with the custom of rejgaddi and that the younger brothers should be entitled to get maintenance from the gaddi nashin.”

The Privy Council held that the document was a non-testamentary instrument and it was a family arrangement arrived at by the mediation or arbitration of two persons, who were old friends of the family and interested in maintaining its honour. It was plainly intended to be operative immediately and to be final and irrevocable. It failed of effect simply because, it was not registered as required by the Registration Act III of 1877, Section 17 and it was held void as regards the immovable property.

In Rajangam Ayyar vs. Rajangam Ayyar, (1922) Law Reports Indian Appeals Vol.50 Page 134, the facts and circumstances are as follows:-

A joint family governed by the Mithakshara law and consisting of two brothers, owned immovable properties in Travancore State and in British India. They executed an agreement dividing the properties: it provided that a deed of partition should be executed and should be registered in British India and in Travancore, and that until that was done, the agreement should be in force. By a deed of partition as to the Travancore properties, the elder brother obtained a larger share therein. The younger brother sued to enforce the agreement as to the properties in British India. The trial court granted a decree as prayed for and directed appointment of a commissioner to divide the properties where necessary. In an appeal to the High Court, the High Court was of the opinion that in the absence of registration, the agreement could not be enforced. In its view, the terms of the agreement precluded it from coming within proviso – v sub-section (2) of Section 17, of the Indian Registration Act, 1908. The High Court held that the suit could be treated as one for general partition, but that in dividing the properties in British India, the plaintiff should have a share which would be equal to that of the defendant when the unequal division in Travancore was taken into account.

In an appeal to the Privy Council, as regards the non-registration of the agreement, the Privy council was of the opinion that Section 17 of the Indian Registration Act, 1908, makes the registration of certain classes of documents compulsory. Among others, non-testamentary instruments which purport 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.

From this, proviso v to Sub-section 2 excepts the following:-

“any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely crating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest”

And that the document in question was not a document by itself creating, declaring, assigning, limiting or extinguishing any right or interest in immovable property. It merely created a right to obtain another document which would, when executed, create a right in the person claiming the relief and on that ground, the Privy Council held that the said document did not require registration and that it was accordingly admissible in evidence insofar as it went.

In Nani bai s. Geetha Bai, AIR 1958 SC 706 [LQ/SC/1958/51] , the Supreme Court has held as follows:-

“Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title, has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of S. 17(1)(b). But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member of the members who have separated themselves from the rest of the co-parcenary. The charge of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section. Hence, in so far as the document are evidence of partition only in the former sense, they are not compulsorily registerable under S.17, and would, therefore, and come within the mischief of S.49.

In Siromani vs. Hemkumar, 1968 SC 1299, [LQ/SC/1968/100] while following Nani bai’s case, it was held that a deed relied upon for the basis of the suit was admissible in evidence as it effected partition of properties of the value of more than Rs.100/- and it was no registered since the registration was compulsory of such a document under section 17(1)(b) of the Registration Act. The argument that the registration of the document was not necessary because there was only severance of joint status of the members of the co-parcenary and there was no partition of the properties by metes and bounds was negatived. The relevant portion of the document marked as Exhibit – D.4 was to the following effect:-

“For the partition of our joint land in Mauza Tilgi and Supra and house and utensils etc., and Dhan, movable and immovable property, amongst us three brothers, the Panchas have been appointed. The partition and distribution effected by the under-mentioned Panchas will be acceptable to us and also the under-mentioned conditions will also have to the accepted by us.

1. Out of lease land in Mauza Tilgi and Mauza Supa totaling 123 acres. Hem Kumar’s share including Jethansi will be 51 acres that is 51 shares and Dinmani’s 39 acres that is 39 shares and minor Shiromani’s whose guardian is Smt. Sobhagwati 33 acres that is 33 shares. The three of them will be in possession of the same. Out of 123 acres of land, the land near Munga Tikra Gera Para will be given to Dinmani and minor Shiromani through guardian Smt. Sobhagwati for building a house instead of the old house. For building of the house in Manga Tikra the three brothers will give Rs.60. Out of the ‘Mitti Khatu’ and Gobar Khatu, there is in the house, after deducing Hemkumar’s tenth share will be divided into three equal shares amongst the three brothers and they will take it so. They will also divide the buried Khatu into their shares.

5. That out of the old house the house on the side of the village the length of which is 30 haath and the st0ne used in it and the house on the side of ‘Patav’ the length of which is 30 haath, is given to Hem Kumar in his share and as Jethansi and the Bamboo wood etc, used in the other house is given to the two brothers Dinmani and Shiromani. Besides the house and Kotha there is old and new wood and 3 new doors. All this is given to Dinmani and Siromani.”

With regard to ryoti lands, para 1 definitely states that Hemkumar is allotted 51 acres Dinmani 39 and Shirmani 33 acre. With regard to the joint family house there is partition between the three brothers by metes and bounds and specific shares are given to each.”

The Apex Court held:

“In view of the recitals in Ex.D.4 we are of opinion that there is allotment of specific properties to individual coparceners and the document therefore falls within the mischief of Section 17(1)(b) of the Registration Act. It follows that Ex.D.4 is not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status, in other words, to prove that the parties ceased to be joint from the date of the instrument dated December 27, 1943 (See the decision of this Court in Nani Bai v. Gita Bai, 1959 SCR 479 [LQ/SC/1958/51] = (AIR 1958 SC 706 [LQ/SC/1958/51] ).”

One other point that was urged in the above case was whether a widow in the family was entitled to a share according to the Mithakshara law of the Benares School at a partition between her sons to a share equal to that of a son. But, it was contended that the widow had signed a document acquiescing in the division of the properties between her sons, without claiming any share for herself and that it must be taken that she had relinquished her share and since she had not taken any action to impeach that document. The Supreme Court rejected such a contention, it was held that the ground of acquiescence did not have the effect of validating the document which was sought to be relied upon, which was an unregistered deed.

In Roshan Singh vs. Zile Singh, 1988 SC 881, [LQ/SC/1988/134] which is already referred to above, it was held by the Supreme Court as follows:-

“9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17(1)(b) of the, a writing which merely recites that there has in time past been a partition, is not a declaration of will, 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 the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document of which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessary of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but 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 will prevent its being admitted in evidence. Secondly 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 arties, 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.

11. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a ling 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. Co-operative Central Bank, Malkapur, ILR (1938) Nag 604 : (AIR 1938 Nag 434). Speaking for himself Sir Gilbert Stone, C.J. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari, (1932) 59 Ind App 130: (AIR 1932 PC 55 [LQ/PC/1931/129] ) and Subramanian v. Lutchman, (1923) 50 Ind App 77: (AIR 1923 PC 50) and expressed as follows:

“It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to ‘create, declare, assign, limit or extinguish…… Any right, title or interest’ in the property which is admittedly over Rs.100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary in effect the change in the legal relation contemplated.”

Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil, ILR (1942) Nag 73; (AIR 1941 Nag 209) reiterated the same principle. Se also; other cases in Mulla’s Registration Act at pp. 56-57.”

In K.G.Shivalingappa vs. G.S.Eshwarappa, (2004)I2 SCC 189 [LQ/SC/1994/68] , has reaffirmed the legal position thus:-

“13. In Nani Bai v. Gita Bai Rama Gunge 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 compulsorily registered under Section 17(1)(b) of the Registration Act, 1908. 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 Registration Act. This decision was followed in Siromani v. Hemkumar and Roshan Singh v. Zile Singh. In Sk. Sattar Sk. Mohd. Chowdhari v. Gundappa Amabadas Bukate after analyzing the judgments, referred to above, this Court observed: (SCC P.382, para 27)

“27. Partition, specially among the coparceners, would be ‘transfer’ for purposes of the Registration Act, 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gange and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formed 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 registerable. 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 and Roshan Singh v. Zile Singh.”

10. In view of the above, there is no substance in the contention put-forth that the document in the case on hand was a mere record of a family arrangement that had taken place much earlier. It was a partition deed which was compulsorily registerable under section 17(1)(b) of the Indian Registration Act, 1908. Therefore, it was inadmissible in evidence for want of registration and could not have been relied upon as the basis to claim that there was an earlier partition.

The appeal is accordingly rejected.