Raj Gopal
Sharma vs. Krishna Gopal Sharma & Ors AIR 2013 Allahabad 187
The Hon’ble High Court held that u/s. 17(1)(b) of the Act, 1908, a document
recognising oral partition, if reduced to writing, need not to be registered
but if it is a document of partition, as such, it needs be registered,
otherwise by virtue of section 49 of Act, 1908, it would be inadmissible in
evidence. A partition of a property in a family precedes a settlement or
compromise between members of family as to how property commonly and jointly,
owned by them, should be settled among them.
The matter also came to be considered by a three Judge Bench in Kale and others
vs. Deputy Director of Consolidation and others, AIR 1976 SC 807, and the apex
court concretised certain propositions considering the effect and essentials of
“family settlement” in para 10 of the judgment, and held as under:
(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;
(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 to 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 section 17(2) [section
17(1)(b)] 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 or 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.
In the present case, the document in question has been signed by Sri Mangelal
Sharma karta and witnessed by Sri Swaroop Singh Tomar. It does not contain
signatures of all the members of the joint family. It thus cannot be said that
it was a mere “family settlement” between members of the family and signed by
all the members. If the aforesaid document sought to be enforced so as to
determine title of respective parties, i.e. plaintiff and defendants 1 and 2 on
the property of late Mangelal Sharma, it would have to be given status of
‘partition deed’ and its registration was necessary.
The aforesaid document had rightly been held inadmissible in evidence on
account of not being registered. However, since defendant No. 2 has already
sold his share in respect of house No. 3, applying principle of estoppel, as
upheld by Apex Court in Kale (supra), he has been excluded from partition of
property in dispute.
