JUDGMENT
M.Y. Eqbal, J.
1. This appeal under Clause 10 of the Letters Patent is directed against the judgment dated 07.09.99 passed in First Appeal No. 116/1985(R),
whereby the learned Single Judge dismissed the appeal and confirmed the judgment and decree dated 3.8.85 passed by Second Additional Sub-Judge, Giridih decreed the suit in part for partition of the suit properties to the extent of 1/7th share only. The plaintiffs/appellants aggrieved by the said judgments and decree filed the instant Letters Patent Appeal.
2. The plaintiffs/appellants case in short is that one Anant Ram was the common ancestor of the parties. He had two sons namely Mahadeo Lal and Fagu Lal and they constituted a joint Hindu Mitakshara family of which Anant Ram was the Karta. The joint family carried on business in the name and style of M/s. Anant Ram Mahadeo Lal, Shri Anant Ram died in the state of jointness leaving behind his son Mahadeo Lal and Fagu Lal who succeeded him and subsequently Mahadeo Lal died leaving behind two sons namely Behari Lal Jalan and Chhedi Lal Jalan. Fagu Lal also died leaving behind three sons namely Basant Lal Jalan, Jwala Prasad Jalan and Banwari Lal Jalan. Behari Lal Jalan died issueless. Plaintiffs’ further case was that joint family of Chhedi Lal Jalan and son of Fagu Lal Jalan disrupted in the year 1964 and the movable and immovable properties of the joint family was partitioned by metes and bounds between Chhedi Lal Jalan on the one hand and Basant Lal Jalan and others on the other hand by virtue of registered deed of partition dated 01.08.1964. Thereafter. Chhedi Lal Jalan said to have come in possession of his own share of the properties allotted to him and similarly the sons of Fagu Lal came in possession of the share of properties allotted to them. Plaintiffs’ further case was that three sons of Fagu Lal Jalan could not continue joint for long due to differences and consequently there was a partition between them also by virtue of partition deed dated 28.7.1965. One Ghanshyam Das Jalan who is one of the sons of Jwala Prasad Jalan was taken in adoption by Shri Basant Lal Jalan by registered deed of adoption and by virtue of another registered deed of partition dated 28.7.1965 the movable properties which had been allotted to the share of sons of Fagu Lal were divided into three separate shares and Takhtas and
1/3rd share was allotted to Basant Lal Jalan and his adopted son Ghanshyam Das Jalan and 1/3rd Takhta each was allotted to Jwala Prasad Jalan Banwari Lal Jalan. The properties allotted to the Takhta of Sri Jwala Prasad Jalan and his sons were set forth in Schedule “Kha” of the said deed of partition which are mentioned in Schedule ‘A’ excluding the lands of village Koldiha which were sold away by Jwala Prasad Jalan to Srimati Bindhya Devi by a registered Sale Deed dated 02.01.1969. It was alleged that Sri Jwala Prasad Jalan and his sons had been coming in possession of the properties mentioned in the Schedule ‘A’ of the plaint. Plaintiffs sought partition from defendants in respect of the house situated within the Giridih Municipality. Plaintiffs claimed 1/7 share in the said property.
3. The case of the defendants/respondents is that the suit is not maintainable. It is stated that Jwala Prasad Jalan, father of the plaintiff and defendants being the Karta had sold the lands in favour of Smt. Vindhya Devi by registered sale deed and the sale proceeds was appropriated for joint family business. It is incorrect to state that Jwala Prasad Jalan, the defendant No. 1 and his sons, plaintiff and defendant Nos. 2 to 4 are still continuing as members of joint family and they are coming in joint possession of the properties. The defendant No. 2 separated from the said joint family in the business on 20.7.1974. The joint property at that time had one wholesale cloth business known as M/s. S.M. Textiles, and one retail cloth shop known as Mamta Textiles. The retail shop Mamta Textiles was allotted to the share of Panna Lal Jalan defendant No. 2, whereas the wholesale shop was allotted to the defendant Nos. 1, 3, 4, 5 and the plaintiff who remained joint. There was a demand for partition of moveable properties by Pannalal Jalan, defendant No. 2 and it was decided that the defendant No. 2 be allotted his share in immoveable properties whereas the defendant Nos. 1, 3, 4 and the plaintiff remained join. The land and premises comprised in Holding No. 5, ward No. 3 of Giridih Municipality was allotted to the share of defendant No. 2 on the condition that defendant No. 2 would pay a sum
of Rs. 21,000/- to the other members and he would also clear all municipal dues amounting to Rs. 8,000/- It was also agreed upon that till defendant No. 2 should vacate the residential house in Ward No. 3 at Chowk Bazar, Giridih Municipality, he would be entitled to realize rent from the tenants in part of holding No. 5, Md. Isha and Md. Safruddin. Accordingly, defendant No. 2 paid a sum of Rs. 21,000/- in cash to the defendant No. 1 and his other sons through Kameshwar Prasad Gutgutia, and he also paid the municipal dues. One memorandum was also drawn for partition which was typed and was duly signed by parties in August, 1982. Defendant No. 2 vacated the premises occupied by him at Chowk Bazar, Giridih and began to live in a rented house belonging to Ganga Prasad Singh and thereafter the defendant No. 2 shifted to the said portion of Holding No. 5 and he has also made construction for suitable residence out of his own personal funds. A proceeding under Sections 107/144, Cr. P.C. was also started against the neighbours of Abdul Rashid and another which was fought by the defendant No. 2. The defendant No. 2 also is realizing rent from the tenants from Md. Isha and Md. Safruddin. The plaintiff and other defendants have got no any interest or share in Holding No. 5, Ward No. 3 and the plaintiff has never demanded any partition and he has got no cause of action for the suit and the suit is fit to be dismissed.
4. The trial Court framed as many as four issues which are as under :
“(1) Has the plaintiff any cause of action for the present suit?
(2) Is the suit maintainable?
(3) Is the plaintiff entitled to partition of the suit properties?
(4) Is the plaintiff entitled to any relief or reliefs, if so, to what extent.
5. The trial Court decreed the suit in part holding that plaintiff is entitled to get partition of the suit property by getting 1/6th share in Holding No. 992 and 906 and also share in the business.
6. Mr. N.K. Prasad, learned Sr. Counsel appearing for the appellant assailed the impugned judgments mainly on the ground that both the courts have committed grave
error of law in relying upon memorandum of partition Ext. ‘K’ by which defendants claimed that partition took place in the year 1979 itself and three brothers including father started doing their business separately. Learned counsel submitted that the said memorandum of partition being an unregistered document is not admissible into evidence Learned counsel further submitted that a document which was inadmissible into evidence for want of registration could not have been admitted into evidence on deposit of the stamp duty and penalty before the trial Court.
7. It is well settled that if a document is itself a basis of effecting partition, it requires registration but if it is a mere record of past complete transaction of partition, it did not require registration. Both the trial Court and the learned Single Judge after appreciation of the entire evidence have recorded a finding that the document was indeed a memorandum of partition. Learned Single Judge in the impugned judgment observed as under :
“One memorandum of partition has been filed which has been marked as Ext. K. after the payment of stamp duty. It has been argued from the side of the appellant that this document is not admissible in view of the fact that it is unstamped and unregistered document. But, it is admitted position that partition among the brothers and the father of plaintiff No. 1 and defendant Nos. 2 to 4 took place in the year 1979 and all the brothers including the father were doing business separately. The defendant Nos. 1 to 6 including the father of plaintiff filed joint written statement admitting the pleading and claim of Pannalal Jalan, the defendant No. 2 and it is stated that virtually partition was already taken place as back as in the year 1979 and before that the defendant No. 2, Pannalal Jalan already separated from the joint family on 20.7.1974 but the memorandum of the said partition was reduced into writing in the month of August 1982. DW-1, the father of plaintiff and defendant Nos. 2 to 4 also admitted this fact. According to him, the house of holding No. 5, ward No. 3 was allotted to Pannalal Jalan and in lieu
thereof he paid a sum of Rs. 21,000/-through Kamal Prasad Gutgutia as well as Pannalal Jalan paid-off the dues of municipality to the tune of Rs. 8,000/-in respect of the said house.
In this way, it is clear that the document, Ext. K., is a document reduced into writing about the arrangement of the partition and the partition was already taken place much earlier.
It may be mentioned here that father, defendant No. 1 as well as his four sons including the plaintiff put their signatures on the said document (Ext. K.). Thus I find that this document does not require to be registered. It has already been held in the case of Roshan Singh and Ors. v. Zile Singh and Ors., AIR 1988 SC 881, that while an instrument of partition which operates or is intended to operate as a declared volition constituting or serving 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, writing which merely recites that there has in time passed 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 an incidental recital of a previously completed 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. 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.
The same view has been taken in the case of Bakhtawar Singh v. Gurdev Singh and Anr., 1996 (9) SCC 370., the Apex Court held that a subsequent memorandum recording past oral partition as a family settlement was not required to be registered.
Thus, the document Ext. K. does not require to be registered as it has been
recorded of the past partition which has already taken place in the year, 1974 and 1979. The defendant No. 2, Pannalal Jalan was already allotted the house of holding No. 5, Ward No. 3 by the said memorandum as well. It may further be mentioned here that there is also recital in the said memorandum Ext. K. that the partition took place and for which this memorandum of partition is being prepared so that the management of the property already allotted may be made properly. DW-2 admitted to have paid the amount of Rs. 21,000/-to Jwala Prasad Jalan and DW-1 Jwala Prasad Jalan, the father also admitted this fact as he had received the said amount as agreed upon. Thus I find that the learned court below has rightly held that the suit property of Schedule-II belonged to defendant No. 2, Pannalal Jalan.”
8. As noticed above admittedly in the said memorandum of partition defendant No. 1 father and his four sons including plaintiff put their signature and the father of defendant Nos. 2 to 4 also admitted these facts against their own interest to the fact that actually partition took place much before the date when memorandum of partition was reduced into writing. Having regard to the finding of fact recorded by the trial Court as also by the learned Single Judge on the nature of the document as being memorandum of partition, this Court cannot reverse the said finding of fact by re-apprising the entire evidence.
9. In view of the written statement and admission by the plaintiff about the separation of business the trial Court rightly decreed the suit in part and the learned Single Judge rightly confirmed the said judgment and decree passed by the trial Court.
10. For the aforesaid reasons, we do not find any merit in this appeal, which is accordingly dismissed.
Hari Shankar Prasad, J.
I agree.