JUDGMENT
S.K. Pande, J.
1. This second appeal under Section 100, CPC is directed against the judgment/decree dated 23-12-94 passed by the Additional Judge to the Court of District Judge, Hoshangabad in C.A. No. 34-A/87 reversing the judgment/ decree dated 8-5-87 decreeing C.S. No. 15-A/86 for declaration and injunction.
2. This second appeal under Section 100, CPC has been admitted on the following substantial question of law:–
“Whether the appellant is entitled to protect possession on the basis of document (Ex. P-1) in spite of the fact that the document was not registered ?”
3. The facts in brief are, that Fida Hussain and Abdul Hussain were brothers. The suit house Nos. 138, 139, 140 Ward No. 10, Pipariya, District Hoshangabad situated on land bearing Khasra No. 161/2 plot No. 43, area 2500 sq. ft. was the matter of dispute between two brothers. Abdul Hussain instituted C.S. No. 4-A/49 against Fida Hussain and the said suit was decreed on 12-11-50. First Appeal No. 4/51 arising out of said judgment/decree was preferred by late Fida Hussain. Fida Hussain since dead, legal heirs Tahir Ali, Tayyab Ali, Hussain Ali (defendant No. 3) and others were brought on record. During continuance of the appeal financial condition of legal heirs since was not satisfactory, they agreed and settled that late Tahir Ali alone will prosecute the matter in First Appeal No. 4/51 at his expenses. In the event Tahir Ali wins the case he alone will be the owner of the disputed house and rest of the legal heirs shall not claim any right, title or interest in the suit property. In case he looses the case he will not be entitled to recover any expenses and cost from the remaining legal heirs. Late Tahir Ali prosecuted the appeal and succeeded in it vide judgment dated 29-3-57. By this judgment in first appeal C.S. No. 4-A/49 filed by Abdul Hussain against Fida Hussain was dismissed. On 17-5-57 the family members recorded a memorandum of settlement in favour of late Tahir Ali that he alone has become the owner of the suit house and plot and that with his permission Hussaina Ba, Hussain Ali, Altahrakhi lives in a portion of the house. These documents (Exs. P-3, P-4) were unregistered and signed by all the legal heirs of the deceased Fida Hussain.
4. Tahir Ali, therefore in exclusion, of others remained in possession of the suit house-plot as owner. The dispute arose when Hussain Ali vide registered sale deed dated 13-10-83 sold the suit house to defendants/respondents Smt. Munnibai, Smt. Ramsudha. Tahir Ali filed C.S. No. 15-A/86 for declaration and injunction on the basis of aforesaid. The suit was decreed by the Civil Judge vide judgment dated 8-5-87. First Appeal No. 34-A/87 assailing the aforesaid judgment/decree was preferred by defendants/respondents Munnibai, Ramsudha. The appeal was allowed vide judgment dated 23-12-94 and the decree passed in C.S. No. 15-A/86, in favour of late Tahir Ali were set aside. In this second appeal filed by Tahir Ali since dead prosecuted by legal heirs through Rukaiya Bi widow of Abdul Hussain, the judgment/decree passed in C.A. No. 34-A/87 has been assailed mainly on the ground that by virtue of family settlement deed (Ex. P-1) late Tahir ali was entitled to protect possession and that the sale deed dated 13-10-83 in favour of defendants/ respondents Smt. Munnibai, Smt. Ramsudha was invalid, inoperative.
5. I have heard Shri Ravish Agrawal, learned Counsel for the appellants and Shri AD. Deoras, learned Counsel for the respondents.
6. Learned Counsel for the appellants tried to explain other points also, such as rejection of application under Order 6 Rule 17 and under Order 41 Order 27, CPC filed by the appellant before the First Appellate Court in C.A. No. 34-A/87. It has been opposed on the ground that where in motion hearing High Court refused to formulate a particular question of law as a substantial question of law, High Court cannot permit rehearing on that question at the stage of final hearing. In support, judgment Kishanchand v. Ramkrishna, reported in 1993 MPLJ 655, has been relied. Learned Counsel for the appellant specifically stated that nothing beyond the question of law as formulated, he intends to argue.
7. The recitals of Ex. P-1 are as under:–
Where a suit against Fida Hussain in respect of suit house was filed by Abdul Hussain and that against the judgment- decree an appeal has been preferred in Appellate Court at Nagpur. It has been agreed that late Tahir Ali alone persisting and prosecuting the appeal, if wins he will be the sole owner of the disputed house and rest of the legal heirs shall not claim any right, title or interest in the suit property. In case he looses he will not be entitled to recover any expenses from them.
The recitals in Ex. P-1 per se are of relinquishment of rights in suit house and conferring absolute right solely on late Tahir Ali. Ex. P-1 reads as under:–
^^gekjk bl edku ls dksbZ ljksdkj vkSj gd ugha
gSA vxj dHkh fdlh rjg ls dksbZ gd crykos >wBk le>k tkosxkA**
The aforesaid recital clearly speaks of the relinquishment of all rights in favour of late Tahir Ali by other heirs of deceased Fida Hussain. Under Section 17 of the Registration Act the document is require compulsorily registration. With reference to family settlement in the judgment reported in AIR 1976 SC 807, it has been held as under :–
“(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 memorandum itself does not create or extinguish any right in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) [Section 17(1)(b) ?] of the Registration Act and is, therefore, not compulsorily registrable.”
Learned Counsel for the appellant submitted that Ex. P-1 being a memorandum dated 17-5-57 of family settlement arrived at legal heirs of Fida Hussain need not be required to be compulsorily registered and on fact of possession in conclusion of Hussain Ali, should be read in favour of late Tahir Ali. As referred above the part of recital Ex. P-1 speaks of relinquishment of right by remaining legal heirs in favour of late Tahir Ali, Ex. P-1 cannot be termed to be a memorandum of family settlement. It is a deed relinquishing the right, title. As such document Ex. P-1 could not be read in isolation of the facts aforesaid only to refer alleged exclusive possession of late Tahir Ali.
8. The First Appellate court was right in discarding Ex. P-1 as a piece of evidence to show exclusive possession on the basis of title of late Tahir Ali. If document (Ex. P-1) is ignored Hussain Ali (D.W. 1) being one of the son of Fida Hussain was also owner of the suit house. Vide sale deed dated 13-10-83 Hussain Ali sold his right in suit house to defendants/respondents Munni Bai and Smt. Ramsudha. I perceive no infirmity in the finding arrived at by the First Appellate Court in C.A. No. 34-A/87 by setting aside judgment/decree dated 8-5-87 passed by Civil Judge Class-I, Sohagpur in C.S. No. 15-A/86. Accordingly, judgment/decree passed in C.A. No. 34-A/2001 are affirmed. The appeal fails and is dismissed. In the circumstances, parties to bear their cost. Counsel’s fee as per rule or certificate whichever is less.