ORDER
K.B. Siddappa, J.
1. This Revision is filed against the order passed in O.S.No. 39/90 on the file of District Munsif, Zaheerabad.
2. The brief facts are as follows:-
When DW-1 was being examined, two documents purported to be partition deeds dated 24-4-1961 and 27-5-1961 respectively, were sought to be marked. That was resisted by the plaintiff.
The partition deed dated 24-4-1961 was engrossed on a stamp paper worth of Rs. 2/-. Defendants 6 and 7 are one party and defendants 1 to 3 and the plaintiff are the second party. The plaintiff and defendants 2 and 3 were minors. Therefore, the step mother of defendant No. 1 has represented them in the said document. The stamp duty and penalty were collected on this document on 10-8-1994. There is an endorsement to that effect on the reverse of the document by the Sub-Registrar, Medak of Sangareddy. The question arose is whether that document is admissible in evidence because of non-registration.
Partition deed dated 27-5-1961 is with the heading “Deed of Partition”. This is unstamped and unregistered. This document was executed between defendant No. 6 and defendant No. 1. Defendant No. 1 represented her minor children i.e., plaintiff and defendants 2 and 3 in that document. This document has referred to the earlier document dated 24-4-1961. This document also shows that five brothers have divided the lands and residential house among themselves into five shares.
3. The learned Munsif, after going through the contents of these documents held that they are compulsorily registrable Under Section 17(1)(b) of the Registration Act after coming to the conclusion that they have the effect of partition.
4. Aggrieved by the said order the present Revision is filed.
5. The learned counsel appearing for the Revision petitioner submitted that a mere reading of the documents show that they are records of past event. The recital made in the document in respect of payment of Rs. 40/- to Smt. Safia Beeby Gulam Dastagir and Gulam Jilani, executants at SL.No. 1, is only a mere arrangement. The document itself does not create any right. With regard to the payment of Rs. 60/- by Gulam Dastagir and Gulam Jilani also, towards maintenance of M.S. Rafeequinnisa, it is also a mere arrangement. It is the same case in respect of Rs. 500/- to be paid towards marriage expenses of Ms. Rafeequinnisa. He further submitted mat the recital in para 4 that the Matruka properties shall be divided among the executants at Sl.Nos. 1 and 2, i.e., among the five brothers equally, clearly shows that it is only an arrangement. The Matruka properties were not divided by metes and bounds by this document. According to him, the same is the case in respect of document dated 27-5-1961.
6. In support of his contention he relied upon a Full Bench judgment of our High Court in Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum, 1962(1) ALT 108 = AIR 1962 A.P. 199 (F.B.). The Full Bench while relying upon the judgment in AIR 1923 Privy Council 50, held that the main test to be applied in these cases is whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction whether it was intended to constitute the gift or it was to serve as a record of a post event. If it was a mere memorandum of the things already transacted and did not embody the gift, no registered document was necessary.
7. The learned counsel also relied upon a judgment of the Supreme Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and Ors., . In this case the Supreme Court held:
“12. 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 between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce 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”.
He also relied upon a judgment of the Supreme Court in Roshan Singh and Ors. v. Zile Singh and Ors., AIR 1988 SC 881 wherein the Supreme Court held:
“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 Section 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 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 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 is subsequently reduced in to 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. (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: see Mulla’s Registration Act, 8th Edn., pp 54-57”.
8. The learned counsel also palced reliance on the judgment of the Division Bench of Delhi High Court in Smt. Chanderwati v. Lakshmi Chand and Ors., . In this case, the division Bench held that a document which merely acknowledges or makes an admission as to a prior partition is not compulsorily registrable. But if it is an instrument effecting a partition of immovable property it falls Under Section 17 (1) (b) of the Registration Act as compulsorily registrable under that clause. It was also held that an unregistered document of partition is not admissible in evidence to prove any of the terms contained in that document and an unregistered partition deed is not admissible to show the respective shares of the parties as declared by the document.
9. Thus it is clear mat if the instrument itself effects partition, it is compulsorily registrable Under Section 17 (1) (b) of the Registration Act If that document is not registered, it is not admissible in evidence and the terms therein cannot be relied upon to show that a particular share has fallen to a particular party. On the other hand if there was a prior partition and the present execution of the document only acknowledges the prior partition, that is not compulsorily registrable. That being the Law, now let us see the nature of the deeds in this case dated 24-4-1961 and 27-5-1961 respectively.
10. In the document dated 24-4-1961 the following words are found: (in English translation):-
“In these circumstances it was considered that this dispute should be resolved through the mediation of the relatives and panchas and the property be divided with seriousness”.
In para-2 of the document it was mentioned that the mother Smt. Safia Bee w/o. late Mohammed Ismail, should be paid Rs. 40/- by Gulam Dastagir and Gulam Jeelani, who are executants at Sl. No. 1. There is also a stipulation for payment of Rs. 60/- to Miss Rafeequinnisa by Gulam Dastagir and Gulam Jeelani. The marriage expenses of Rs. 500 /- are also specified in the documents. With regard to Matruka property, it is mentioned that executants at S.Nos. 1 and 2 will take equally. Therefore, by no stretch of imagination it can be said mat it is a record of the past event. The recitals are quite clear that this document effects partition and it contains the terms as to payment etc. The same is the case also with the document dated 27-5-1961. Now here it was mentioned that, there was earlier partition and these documents are executed only as records of past events. Further the case, of the defendants in the written statement has to be seen in this context In para-3 of the written statement they clearly stated “Then on 27-5-1961, partition was effected. In the said partition defendant No. 6 was allotted S.No. 13/ A& ” etc. They further stated in para-4 that the land in S.No. 147 which was allotted to the plaintiff and defendants 2 and 3 in the partition dated 27-5-1961 was sold by themselves in the year 1966 to Papaiah and others and the sale deed was executed by defendants 1, 2 and 6. It is also stated that land in S.No. 172, which is Acs.1-12 guntas in extent was gifted by late Mohammed Ismail during his life time to defendant No. 6. It is also stated that after the death of late Mohammed Ismail, defendants 2 and 3 got mutated their names in the pahanies on the basis of partition dated 27-5-1961. It is again stated that plaintiff and defendants 2 and 3 were properly represented in the agreement dated 24-4-1961 and partition dated 27-5-1961 and that they cannot now attempt to take advantage on the pretext of their alleged minority and defraud these defendants etc.
11. That being their case, they cannot now go back against their own pleadings stating that no partition took place in pursuance of the document dated 24-4-1961.
12. Therefore, on the ratio of the above judgments and discussion it should be held that the parties prima facie intended to effect partition through these documents, and that therefore they are compulsorily registrable Under Section 17(1)(b) of the Registration Act.
13. The lower Court considered all these aspects rightly and held so. There are no grounds to interfere with the order under revision.
14. Hence, the Civil Revision Petition is dismissed and in the circumstances without costs.