[Bupuram Bora & Ors v. Anil Bora & Ors AIR 2011 Gauhati 104]
The respondent Nos.1 to 5 as plaintiffs had instituted the suit for declaration of right, title and interest over the land. The case of the plaintiffs was that the property originally belonging to Gura Kalita, alias Bora and Lessa Kalita. After the death of Gura Kalita, his share in the property devolved on his three sons, namely, Teen Bora, Gunaram Bora and Deben Bora and on the death of Lessa Kalita, his share in the property devolved on his only son, namely, Dharani Kalita alias Bora and accordingly, all of them have been jointly enjoying the land. According to the plaintiffs, while they were in joint possession, the proforma defendants, namely, the successor-in-interest of Teen Bora and Deben Bora, who are the brothers of plaintiffs’ father Gunaram Bora and Dharani Kalita, the successor-in-interest of Lessa Kalita, had given up their rights in respect of their shares, which land was under possession of the plaintiffs from before, by virtue of amicable partition amongst the members of the joint family, for which a document dated 14.09.1990 was subsequently executed, which however, was not registered.
It is also the case of the plaintiff that on or about 02.03.1992 the principal defendants/appellants encroached on the land. The Trial Court decreed the suit of the plaintiffs/respondents declaring the right, title and interest.
The substantial question of law raised which was relevant for the purpose of the appeal, i.e. whether by virtue of unregistered deed, the plaintiffs could acquire the right, title and interest in respect of Schedule land. It has been submitted that since, by the said document, Dharani Kalita alias Bora, son of Lessa Bora apart from Dombaru Bora and Gorsing Bora, both are sons of Bogiram Bora, relinquished their rights in respect of the land measuring 3 kathas 5 lechas in favour of the plaintiffs, who are sons of Gunaram Bora, who is the brother of Teen Bora, Deben Bora, Dharani Kalita alias Bora and Bogiram Bora, the said document cannot confer any right, title and interest on the plaintiffs, as the said document is not registered, though compulsorily registerable u/s 17(1)(b) of the Registration Act, 1908. Though the said document is titled as “Abandonment of Sharecum- Sale Deed”, the contents of the same reveals recording in writing as a memorandum of what had been agreed upon between the parties in the family arrangement earlier arrived at amongst the heirs so that there is no hazy notions about it in future. It is apparent from the said document that in fact no consideration amount was paid and as such it is not a sale deed requiring compliance of section 54 of the Transfer of Property Act r.w.s. 17(1)(b) of the Registration Act.
The Court held that the family arrangement can be arrived at orally and its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. Such memorandum need not be prepared for the purpose being used as a document on which future title of the parties to be founded and if such memorandum is prepared as record of what had been agreed upon so that there are no hazy notions about it in future, the same is not required to be registered. On the other hand, it is only when the parties reduced the family arrangement 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 would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. In Kale (AIR 1976 SC 807) the Apex Court following its earlier decision in Tek Bahadur Bhujil (AIR 1966 SC 292) as well as other decisions, has held that a family arrangement may even be oral, in which case there is no requirement of registration of such arrangement. It has also been held that the registration would be necessary, only if the terms and recitals of a family arrangement made under the document and as such registration is not necessary, when the document is 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, as such memorandum itself does not create or extinguish any rights in immovable properties and as such is not required to be compulsorily registerable u/s 17(1) of the Registration Act.
The document as well as the evidence adduced by the plaintiffs, reveal that a family arrangement had already been made and the document is nothing but the memorandum prepared after such family arrangement for the purpose of record and for the purpose of mutation of the names of the plaintiffs, who are the legal heirs of Gunaram Bora. Accordingly, the mutation was initially granted in favour of the plaintiffs over the suit land described in Schedule-A. By the said document the family arrangement has not been made. What it has indicated is only the family arrangement which had already been made and as such is not required to be registered under the Registration Act. The contention of the appellants/ defendant Nos.1 to 5 that the document is compulsorily registerable cannot, therefore, be accepted and hence rejected.
