MANU/RH/1213/2016

Equivalent Citation: AIR2016Raj198, 2016(4)C DR1534(Raj), 2017(1)RLW152(Raj.)

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Writ Petition No. 13951 of 2011
Decided On: 20.05.2016
Appellants: Bhanwari Devi
Vs.
Respondent: Arvind Kumar and Ors.
Hon'ble Judges/Coram:
Prashant Kumar Agarwal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Alok Sogani
For Respondents/Defendant: Ajay Gupta
Case Note:
Registration Act, 1908, Sec. 17 and 49; Stamp Act, 1899, Sec. 35 -
Unregistered and unstamped document titled as 'Memorandum of partition'
- Admissibility in evidence - Held - It is an instrument of partition as well as
a deed of transfer, transferring share in the property requiring compulsory
registration as per Sec. 17 of the Act and for want of registration, it is
inadmissible in evidence - Unstamped or deficiently stamped document is
not admissible in evidence for any purpose - It is for the trial Court to
decide whether in the facts and circumstances of the case, the document is
required to be impounded or not. [18-24]

ORDER
Prashant Kumar Agarwal, J.
1 . Heard learned counsel for the parties. Admissibility of a document dated
10.7.1997, styled or titled as memorandum of partition, it being unregistered and
unstamped, is the core issue to be addressed in this writ petition.
2 . Brief relevant facts leading to filing of this writ petition are that the plaintiff-
petitioner filed a suit for possession, cancellation of sale deed and permanent
injunction against the defendant-respondents with averments, inter alia, that the
property in dispute (a shop) along with some other property came in the share of her
father-in-law, Shri Nand Kishore as a result of a family settlement dated 10.7.1997
effected between him and his son Shri Radhe Shyam (husband of the petitioner) and
Shri Nand Kishore executed a registered Will dated 28.9.2004 in her favour and after
the death of Shri Nand Kishore on 8.10.2004, she has become sole owner of the
shop. It was further averred that defendant-respondent-Shri Arvind Kumar without

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any legal right or title executed a registered sale deed dated 18.3.2000 in favour of
defendant-respondent, Smt. Kamla Devi and she on the strength of the said sale deed
has illegally entered into possession of the property in dispute. In support of her
claim made in the suit, petitioner relied upon the document in question i.e. alleged
family settlement dated 10.7.1997. The respondent, Smt. Kamla Devi in her written
statement not only denied execution of said document, but also raised an objection
that it being unregistered and unstamped is inadmissible in evidence. When the
petitioner during the course of her examination-in-chief wanted to exhibit the said
deed, objection was raised on behalf of the respondent and learned trial Court by
way of impugned order dated 5.9.2011 came to a conclusion that deed dated
10.7.1997 is a partition deed whereby the property mentioned in it was partitioned
and thus it required compulsory registration and for want of registration it is not
admissible in evidence. It is this order passed in Civil Suit No. 47/2005 pending in
the Court of Additional District Judge No. 1, Sikar, is subject matter of challenge in
this civil writ petition filed under Article 226 read with Article 227 of the Constitution
of India. It is to be noted that no finding was given by the learned trial Court about
the admissibility of the document for want of stamp duty. The defendant-respondent
claimed before the Court below that this document is a partition deed and not merely
a memorandum of family settlement and for want of proper stamp duty and
registration is inadmissible in evidence. According to her, from the language of the
document, it clearly emerged that it is not mere record of a past event but partition
was effected for the first time through this document itself and as per the provisions
of the Stamp Act and the Registration Act, the document ought not only to be
properly stamped but registered as well and as the document fell short of both these
mandatory requirements, it was inadmissible in evidence.
3 . It was urged by the learned counsel for the petitioner that trial Court has on a
misconstruction of the terms of the document wrongly construed it to be an
instrument of partition requiring compulsory registration under Section 17 of the
Registration Act and, therefore, inadmissible in evidence for want of registration as
per the Section 49 of the Act. It was submitted that recitals of the document manifest
that there was oral partition between the parties to the document referred in it and
thereafter it was executed only as a memorandum thereof. It was also submitted that
it is well settled legal position that oral partition even of immovable property can be
effected and later on it can be reduced or recorded in writing in the form of mere
memorandum thereof. It was also submitted that although a label or nomenclature
given to a document is not a real factor to determine the nature of the same but the
test is of what was the real intention of the parties to execute a document which can
be inferred or gathered from the recitals of the document. It was also submitted that
in the present case the document in question has been acted upon and one of the
parties to it, Shri Nand Kishore executed a registered Will dated 28.9.2004 of his
share in the property to plaintiff-petitioner. It was further submitted by learned
counsel for the petitioner that the document in question is not a partition deed but
merely a memorandum of a family settlement and hence, was neither required
registration nor required to be stamped and is admissible in evidence for all
purposes. Counsel for the petitioner further asserted that the language of the
document lead to an irresistible conclusion that it was merely recordance on the
terms and conditions already settled between the parties to the document and hence,
it falls in the category of memorandum of family settlement/arrangement requiring
neither any stamp duty nor required to be registered.
4 . On the other hand, learned counsel for the respondent submitted that the
document in question does not contain any recital of a prior or completed partition,
oral or written, but on its terms embodies a decision which is to be sole repository of
the rights and title of the parties to the document i.e. according to which partition by

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metes and bounds had to be effected. It was submitted that learned Court below after
construing the terms of the document correctly held it to be a instrument of partition
under which and as a result thereof particular share of each party to it was
determined and allotted for the first time and, therefore, it was required compulsory
registration as per Section 17 of the Act and for want of registration it is inadmissible
in evidence for any purpose as stipulated under Section 49 of the Act.
5 . I have considered the submissions made on behalf of the respective parties and
perused the material made available on record including the document in question as
well as the relevant legal provisions and the case law.
6 . In the case of Tek Bahadur Bhujil v. Debi Singh Bhujil & Ors. reported in
MANU/SC/0389/1965 : AIR 1966 SC 292, Hon'ble Supreme Court has held as below:
"Family arrangement as such can be arrived at orally. Its terms may be
recorded in writing as a memorandum of what had been agreed upon. The
memorandum need not be prepared for the purpose of being used as a
document on which future title of the parties is be founded. It is generally
prepared as a record of what had been agreed upon, in order that there are
no hazy notions about it in future. It is only when the family arrangement is
reduced in writing with the purpose of using that writing as proof of what
they had arranged and, where: the arrangement is brought about by the
document as such, that the document requires registration, because it is then
that it would amount to a document of title declaring for future what rights
and in what properties the parties possess. But a document which is no more
than a memorandum of what had been agreed to between the parties does
not require compulsory registration under S. 17 of the Registration Act."
7 . In the case of Mathai Samuel and others, v. Eapen Eapen (Dead) by L.Rs. and
others reported in MANU/SC/0996/2012 : (2012) 13 SCC 80 : (AIR 2013 SC 532),
Hon'ble Supreme Court has held as under:
"The primary sale of construction of a document is that the intention of the
executants, which must be found in the words used in the document. The
question is not what may be supposed to have been intended, but what has
been said. We need to carry on the exercise of construction or interpretation
of the document only if the document is ambiguous, or its meaning is
uncertain. If the language used in the document is unambiguous and the
meaning is clear, evidently, that is what is meant by the executants of the
document. Contemporary events and circumstances surrounding the
execution of the document are not relevant in such situations."
8 . In the case of Roshan Singh and others v. Zile Singh and others reported in
MANU/SC/0679/1988 : AIR 1988 Supreme Court 881, Hon'ble Supreme Court has
held that:
"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 Act, 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-

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 settled that a mere list of properties allotted at a partition is not an
instrument of partition and does not require registration. Sec. 17(1)(b) lays
down that a document for 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 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."
9. Hon'ble Supreme Court further held that:
"Partition, unlike the sale or transfer which consists in its essence of a single
act, is a continuing state of facts. It does not require any formality, and
therefore if parties actually divide their estate and agree to hold in severally,
there is an end of the matter."
10. It was also held that:
"The true principle that emerges can be stated thus: If the arrangement of
compromise is one under which a person having an absolute title to the
property transfers his title in some of the items thereof to the others, the
formalities prescribed by law have to be complied with, since the transferees
derive their respective title through the transferor. If, on the other hand, the
parties set up competing titles and the differences are resolved by the
compromise, there is no question of one deriving title from the other, and
therefore the arrangement does not fall within the mischief of S. 17 read with
S. 49 of the Registration Act as no interest in property is created or declared
by the document for the first time."
11. Hon'ble Supreme Court in the case of B.K. Muniraj v. State of Karnataka & Ors.
reported in MANU/SC/7166/2008 : (2008) 4 SCC 451 : (AIR 2008 SC 1438) has held
that:
"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 the executant,
firstly, from a comprehensive reading of the terms of the document itself,
and then, by looking into 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."
12. The Hon'ble Supreme Court in the case of K.G. Shivalingappa (Dead) by LRs. &
Ors. v. G.S. Eswarappa & Ors., reported in MANU/SC/0549/2004 : (2004) 12
Supreme Court Cases 189 : (AIR 2004 SC 4130) has held that:

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 "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."
13. A Single Bench of Rajasthan High Court in the case of Parmanand Setia v. Samial
& Ors., reported in MANU/RH/0561/2002 : 2003 (1) DNJ (Raj.) 107 has held that:
"When a document records the creation of a right in a party and extinction of
right to other party, such document is required to be registered. Non-
registration is the consequence of defeating the payment of fees to the State
for registration and thus, document is to be held to be inadmissible in law
being contrary to Section 23 of the Contract Act."
14. A Single Bench of Gujarat High Court in the case of Luhar Tulsidas Narsibhai v.
Vrajlal Lalju Vaghela reported in MANU/GJ/8357/2006 : ATR (sic AIR) 2007 Guj 77
has held that:
"There is a clear distinction between a document affecting or creating the
partition and a document which is acknowledging the partition. If the
partition has already taken place and the parties to the partition just prepare
a memorandum of partition or an acknowledgement of the partition, then
such partition is not created by the document and under such circumstances,
such document, acknowledging the rights already conferred on the party
would not fall within the mischief of Section 17 of the Act. The document,
which creates a partition and affects the partition in presentee and by that
document the rights of the parties are crystallised and each party is informed
of their rights on the date of the deed itself, then, such document, being a
document in presentee creating specific rights in favour of the parties, would
be compulsorily registrable if it pertains to tangible, immovable property
more than Rs. 100/-. Such a document if not registered would not be
admissible because of the bar contained under S. 49 of the Act. In the instant
matter, when the parties had affected the partition in presentee, each of them
was reserving certain rights in favour of each other. If the fact of the
partition cannot be looked into because the document is unregistered, then,
the rights flowing from the said partition also cannot be looked into. It would
be improper to say that the fact of the conditions settled between the parties,
which were as consequence of the partition, should be looked into. If the
effect of the partition or the fact of the partition itself cannot be looked into,
then, the benefits flowing from the said partition also cannot be looked into."
15. In the case of Kale & Ors. v. Deputy Director of Consolidation & Ors. reported in
MANU/SC/0529/1976 : (1976) 3 SCC 119 : (AIR 1976 SC 807), Hon'ble Supreme
Court has recorded the essentials of a family settlement in the form of following
propositions:
(1) The family settlement must be a bona fide one so as to resolve family
disputes and rival claims by a fair and equitable division or allotment of
properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by
fraud, coercion or undue influence:

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 (3) The family arrangement may be even oral in which case no registration is
necessary;
(4) It is well-settled that registration would be necessary only if the terms of
the family arrangement are reduced into writing. Here also, a distinction
should be made between a document containing the terms and recitals of a
family arrangement made under the document and a mere memorandum
prepared after the family arrangement had already been made either for the
purpose of the record or for information of the court for making necessary
mutation. In such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore does not fall
within the mischief of S. 17(2) of the Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties to the family arrangement must have
some antecedent title, claim or interest even a possible claim in the property
which is acknowledged by the parties to the settlement. Even if one of the
parties to the settlement has no title but under the arrangement the other
party relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld and the Courts will find
no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve
legal claims are settled by a bona fide family arrangement which is fair and
equitable the family arrangement is final and binding on the parties to the
settlement.
1 6 . In the case of K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd.,
reported in MANU/SC/7679/2008 : (2008) 8 SCC 564 : (AIR 2008 SC (Supp) 850),
Hon'ble Supreme Court has laid down the following principles in respect of a
document requiring compulsory registration:
(i) A document required to be registered, if unregistered is not admissible in
evidence under Section 49 of the Registration Act, (ii) such an unregistered
document can however be used as an evidence for collateral purpose as
provided in Section 49 proviso of the Registration Act, (iii) a collateral
transaction must be independent of, or divisible from the transaction to effect
which the law required registration, (iv) a collateral transaction must be a
transaction not itself required to be effected by a registered document, that
is, a transaction creating, etc. any right, title or interest in immovable
property of the value of one hundred rupees and upwards, and (v) if a
document is inadmissible in evidence for want of registration, none of its
terms can be admitted in evidence and that to use a document for the
purpose of proving an important clause would not be using it as a collateral
purpose.
17. Hon'ble Allahabad High Court in the case of Ratan Lal & Ors. v. Hari Shankar &
Ors. reported in MANU/UP/0198/1980 : AIR 1980 All 180 has observed that
'Collateral Purpose' referred to under Section 49 of the Registration Act has a limited
scope and meaning. The term would not permit the party to establish that the deed
created or declared or assigned or limited or extinguished a right to immovable
property. Therefore, a deed treated either as Partnership Deed or Family Arrangement
needed to be registered and an unregistered one could not be used even to prove
that there was a partition and oral evidence regarding partition on the basis of such

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document could not be led as it was barred by Section 91 of the Evidence Act.
18. In the light of the aforesaid well settled legal position, it is to be seen whether
the document in question is mere a memorandum of a oral partition/family
settlement/family arrangement arrived at between the parties to it or they partitioned
the property between them for the first time as a effect of this document. To decide
the question the recitals of the document is required to be seen which are as below:

19. From the perusal of document in question following facts clearly emerge out:
(i) It was executed on 10.7.1997 between Shri Nand Kishore and his son
Radhe Shyam.
(ii) The property described in the document originally belonged to one Shri
Roa Raja Kalyan Singh.
(iii) The same was purchased by Shri Rambux (father of Shri Nand Kishore)
from Shri Kalyan Singh vide Patta No. 42 dated 30.11.1948.
(iv) It was admitted by Shri Nand Kishore and his son Shri Radhe Shyam that
each of them has 1/2-1/2 share in the property after the death of Shri
Rambux.
(v) Shri Nand Kishore alone constructed as many as 36 shops over the
property from his own money without any financial contribution from Shri
Radhe Shyam.

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 (vi) Out of 36 shops constructed by Shri Nand Kishore over the property, by
mutual understanding between them Shop Nos. 14, 17, 19, 22, 23, 24, 25,
26, 27, 28, 30 & 35 (total 12) were given to Shri Radhe Shyam with absolute
right in them.
(vii) Remaining shops were given in the share of Shri Nand Kishore and Shri
Radhe Shyam had no right in them.
(viii) Both Nand Kishore and Radhe Shyam put their signatures on the
document.
20. In the present case, it is an admitted fact by the petitioner that the property for
which the document in question has been executed was of Shri Rambux, who
purchased it from Shri Kalyan Singh by way of Patta dated 30.11.1948 and thus it
was his self-acquired property. As per the averments made in the plaint Shri Rambux
died in the year 1975 and, therefore, as per Section 8 of the Hindu Succession Act,
the property devolved solely upon his son Shri Nand Kishore being heir of Class-I
and he alone became owner of the property and no title and right conferred upon
Shri Radhe Shyam, grandson of Shri Rambux, because in the life time of Shri Nand
Kishore he could not have obtained any share in it. Thus, on the date on which the
document in question was executed Radhe Shyam had no antecedent title in the
properly. It is well settled legal position that where the suit property was not
ancestral in nature, but a self-acquired property, the grand son in the presence of
father being Class-I heir, is not entitled to inherit such property. From the reading of
the document in question it is manifest that by way of this document not only shops
mentioned in it were given to Shri Radhe Shyam but also right and title was
conferred upon him in one half of the land for the first time. The document in
question shows that it in self has tendency to create rights in favour of Radhe Shyam
and extinguishes rights of Shri Nand Kishore in respect of half of the land and some
of the shops constructed over it by Shri Nand Kishore. There is no whisper in the
document that prior to its execution there was any oral partition or settlement
between the father and son about the land or shops constructed over it and this
document has been executed only as a memorandum or recordance of such prior
partition. From the recitals made in the document it is emerging that for the first time
it was agreed that each of them has 1/2-1/2 share in the land which originally
belonged to Late Shri Rambux. It is also revealed from the document that the shops
constructed over the land were partitioned between Shri Nand Kishore and Radhe
Shyam by metes and bounds and each of them got his share of shops as absolute
owner.
21. Testing the document in question dated 10.07.1997, in the light of the above
legal propositions and the language used in the document, this court is convinced
that the document is not merely a memorandum or recordance of a prior
partition/family settlement/family arrangement but it is an instrument of partition
requiring compulsory registration and for want of registration it is inadmissible in
evidence and it cannot be admitted in evidence even to show that the suit shop came
in the share of Shri Nand Kishore and he was entitled to execute Will in respect of
suit shop in favour of petitioner-plaintiff. If the document in question is tested in the
light of the fact that Shri Rambux died in the year 1975 and the property, in respect
of which this document has been executed, devolved upon Shri Nand Kishore alone,
then it becomes clear that the document in question is a deed of transfer transferring
share in the property in favour of Shri Radhe Shyam requiring compulsory
registration as per Section 17 of the Registration Act and for want of registration, it
has; same effect as an instrument of partition has.

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22. So far as inadmissibility of document in question for want of proper stamp duty
is concerned, Section 35 of the Indian Stamp Act, as it was applicable at the time
when the document in question was executed, provides that no instrument
chargeable with any stamp duty under the Act shall be admitted in evidence for any
purpose or shall be acted upon unless such instrument is duly stamped. As per the
definition of the word "instrument" provided under the Act instrument includes every
document by which any right or liability is or purports to be created, transferred,
limited, extended, extinguished or recorded. In the present case, as already held, by
way of document in question rights in part of the property in favour of Radhe Shyam
have been created, transferred and extended and rights of Shri Nand Kishore in it
have been extinguished and limited. Thus, the document in question is an
"instrument" within the meaning of the Stamp Act. As per this provision, even if any
right is recorded by way of a document, the same would also fall within the purview
of instrument. As per Section 2(15), "instrument of partition" means any instrument
whereby co-owners of any property divide or agree to divide such property in
severalty and includes, when any partition is effected without executing any such
instrument, any instrument signed by co-owners and recording, whether by way of
declaration of such partition or otherwise, the terms of such partition amongst the
co-owners. Thus, as per this definition even memorandum of past oral partition is
included in the definition of "instrument of partition" requiring stamp duty. Thus,
even if for the sake of arguments it is admitted that the document in question is
merely a memorandum of some past partition or family settlement or arrangement
between Shri Nand Kishore and Shri Radhe Shyam regarding property to which it
pertains, even then it was required to be duly stamped and in absence of the same it
is inadmissible in evidence for any purpose unless the deficient duty and penalty is
paid.
2 3 . Hon'ble Supreme Court in the case of Avinash Kumar v. Vinay reported in
MANU/SC/8502/2008 : (2009) 2 SCC 532 : (AIR 2009 SC 1489) has held that an
unstamped or deficiently stamped document is not admissible in evidence for any
purpose.
24. The net result of all this discussion is that the document dated 10-07-1997 is
inadmissible in evidence for all purposes not only it being unregistered but also it
being unstamped. No purpose would be served even if petitioner offers to pay the
deficient stamp duty along with penalty as the defect of nonregistration is not
curable. However, it is for the trial Court to decide whether in the facts and
circumstances of the case, the document is required to be impounded or not.
Consequently, the petition being meritless is, hereby, dismissed. The stay application
is also dismissed.
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