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May 2011

Registration — Family settlement — Document reciting past events need not be registered — Registration Act, section 17(1) (b), 49.

By Dr. K. Shivaram Ajay R. Singh, Advocates
Reading Time 3 mins
[ Ram Singh v. Smt. Kesar Kanwar & Ors., AIR 2011 Rajasthan 24]

The petitioner-plaintiff was not allowed to exhibit two documents in a suit, namely, family settlement and a map annexed thereto on the ground that the same were not registered and duly stamped. The petitioner contented that it was not required for a settlement to be registered with the Office of the Registrar as these documents were simply a recitation of past events.

The Court relying on the decision of Roshan Singh v. Zile Singh, AIR 1988 SC 881, held 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 u/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 in 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 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 therefore flow : Firstly, 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, section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872. 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.

In view of the aforesaid, the Court allowed the writ petition.

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