CIVIL APPEAL No 2185 of 1987
From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in RFA No 16 of 1986
SN Kacker Awadh Behari and AK Sanghi for the Appellants
UR Lalit RS Hegde and KR Nagaraja for the Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave by the defendants arises in a suit for a declaration and injunction brought by the plaintiffs and in the alternative for partition
They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2 B3 B4 and B5 in the plaint map which had been allotted to them in partition and in the alternative claimed partition and separate possession of their shares
The real tussel between the parties is to gain control over the plot in question marked B2 in the plaint map known as Buiyanwala gher
Admittedly it was not part of the ancestral property but formed part of the village abadi of which the parties were in unauthorised occupation
The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map
That depends on whether the document Exh
P 12 dated 3rd August 1955 was an instrument of partition and therefore inadmissible for want of registration under section 49 of the Indian  or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares
The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda
They and the defendants are the descendants of the common ancestor Chattar Singh who had two sons Jai Ram and Ram Lal
Soonda was the son of Ram Lal and died in 1966
Jai Ram in turn had two sons Puran Singh and Bhagwana
The latter died issueless in 1916 17
Puran Singh also died in the year 1972 and the defendants are his widow three sons and two daughters
It is not in dispute that the two branches of the family had joint ancestral properties both agricultural and residential in Village Nasirpur Delhi 1110 Cantonment
The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records
This was followed by a partition of their residential properties including the house gherghetwar etc
The factum of partition was embodied in the memorandum of partition Exh
P 12 dated 3rd August 1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda
In terms of this partition the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh
PW 251 fell to the share of Puran Singh
Apart from this Puran Singh was also allotted gher shown as A3 in the plaint map admeasuring 795 square yards
Thus the total area falling to the share of Puran Singh came to 2417 square yards
The plaintiffs  ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors warked B1 in the plaint map having an area of 565 square yards
Apart from the house marked B1 Soonda also got ghers marked B2 to B5 demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards
In terms of this partition the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties
However in February 1971 the plaintiffs wanted to raise construction over the gher marked B2 in the plaint map and started constructing a boundary wall
Defendants No 1 3 sons of Puran Singh however demolished the wall as a result of which proceedings under section 145 of the Code of Criminal Procedure 1898 were drawn against both the parties about this property
The Sub Divisional Magistrate Delhi Cantt New Delhi by her order dated 26th April 1972 declared that the second party namely Puran Singh father of defendants nons
1 3 was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due course of law
On revision the Additional Sessions Judge Delhi by order dated 4th March 1974 agreed with the conclusions arrived at by the learned Sub Divisional Magistrate
On further revision a learned Single Judge MRA Ansari J by his order dated 6th Agust 1975 affirmed the findings reached by the Courts below on condition that while party No 2 Puran Singh would remain in possession of the property in dispute he would not make any construction thereon
The plaintiffs were accordingly constrained to bring the suit for declaration and injunction and in the alternative for partition
1111 After an elaborate discussion of the evidence adduced by the parties the learned Single Judge DR Khanna J by his judgment dated April 18 1980 came to the conclusion on facts that the plaintiffs were the owners in possession of the property marked as B1 a smaller house known as baithak and the disputed plot B2 and the properties marked as A1 the ancestral residential house called rihaishi and A2 the open space behind the same belonged to the defendants
Taking an overall view of the evidence of the parties in the light of the circumstances the learned Single Judge came to the conclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971
In coming to that conclusion he observed I have little hesitation that the portions marked A 1 and A 2 and B 1 and B 2 were ancestral residential houses of Ghers of the parties and Soonda and Puran had equal share in them
The residential house shown as A 1 and the open space behind that marked as A 2 were admittedly given to Puran in the partition of 1955
Similarly B 1 was allotted to Soonda
I am unable to hold that B 2 was also allotted to Puran
This would have been wholly unequitable and could not have by any stretch reflected the equal division of these joint properties
Puran in that case apart from getting the residential house for which he paid Rs3000 to Soonda would have also got far area in excess if defendants  case that Gher B 2 also belongs to them is accepted
In any natural and equitable division of the properties that allotment of the residential house marked A  and the open space behind the same to Puran Baithak B 1 and Gher No 2 could have been naturally been given to Soonda
That it was actually done so gets clarified in the document exhibit P1 dated 3111971 which was written in the presence of a number of villagers between Puran and Soonda
 The learned Judge went on to say that the document Exh
P 12 was executed by Puran Singh and Soonda in the presence of the villagers who attested the same and there was some sanctity attached to it
What is rather significant is that Puran Singh was required to pay Rs3000 as owelty money for equalisation of shares
Aggrieved the defendants preferred an appeal under cl 10 of the Letters Patent
A Division Bench of the High Court DK Kapur 1112 CJ
and NN Goswamy J by its judgment dated 4th August 1986 affirmed the reasoning and conclusion arrived at by the learned Single Judge and accordingly dismissed the appeal
Both the learned Single Judge as well as the Division Bench have construed the document Exh
P 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act and have referred to certain decisions of this Court in support of that conclusion
In support of the appeal Shri SN Kacker learned counsel for the appellants has mainly contended that the document Exh
P 12 is an instrument of partition and therefore required registration under section 17 of the Act
It is urged that the High Court has on a misconstruction of the terms wrongly construed it to be a memorandum of family arrangement and admissible for the collateral purpose of showing nature of possession under the proviso to section 49 of the Act
In substance the submission is that the document does not contain any recital of a prior completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties ie according to which partition by metes and bounds had to be effected
We regret we find it rather difficult to accept the contention
In order to deal with the point involved it is necessary to reproduce the terms of the document Exh
P 12 which read Today after discussions it has been mutually agreed and decided that house rihaishi residential and the area towards its west which is lying open ie the area on the back of rihaishi residential house has come to the share of Chaudhary Pooran Singh Jaildar
House Baithak has come to the share of Chaudhary Soonda
The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side
Rest of the area of the field and gitwar will be half and half of each of co shares
The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda
Since house rihaishi has come to the share of 1113 Chaudhary Pooran Singh therefore he will pay Rs3000 to Chaudhary Soonda
A copy of this agreement has been given to each of the co shares
D 38
1955 Sd in Hindi LTI Pooran Singh Zaildar Ch
Soonda
 According to the plain terms of the document Exh
P 12 it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected
The opening words of the document Exh
P 12 are Today after discussion it has been mutually agreed and decided that   
What follows is a list of properties allotted to the respective parties
From these words it is quite obvious that the document Exh
P 12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated
So also the Panch Faisala Exh
P 1 which confirmed the arrangement so arrived at opens with the words Today on 3111971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that   
The purport and effect of the decision so arrived at is given thereafter
One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh representing the plaintiffs
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 171b 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 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
171b 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 1114 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 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
Secondary 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  8th edn pp 54 57
The tests for determining whether a document is an instrument of partition or a mere list of properties have been laid down in a long catena of decisions of the Privy Council this Court and the High Courts
The question was dealt with by Vivian Bose J in Narayan Sakharam Patil vs Cooperative Central Bank Malkapur  Ors ILR 1938 Nag 604
Speaking for himself and Sir Gilbert Stone CJ
the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh vs Jagarnath Kuari LR 1932 59 IA 130 and Subramanian vs Lutchman LR 1923 15 IA 77 and expressed as follows It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration but what we have to determine here is whether these documents are mere lists or in themselves purport to create declare assign limit of extinguish   any right title or interest  in the property which is admittedly over Rs 100 in value
The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated Sir Gilbert Stone CJ speaking for himself and Vivian Bose J in Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil  Ors ILR reiterated the same principle
See also order cases in Mulla s at pp
56 57
Even otherwise the document Exh
P 12 can be looked into under the proviso to section 49 which allows documents which would 1115 otherwise be excluded to be used as evidence of any collateral transaction not required to be effected by a registered instrument 
In Varada Pillai vs Jeevarathnammal LR 1919 46 IA 285 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration to be used not to prove a gift because no legal title passed  but to prove that the donee thereafter held in her own right
We find no reason why the same rule should not be made applicable to a case like the present
Partition unlike the sale or transfer which consists in its essence of a single act is a continuing state of facts
It does not require any formality and therefore if parties actually divide their estate and agree to hold in severalty there is an end of the matter
On its true construction the document Exh
P 12 as well as the subsequent confirmatory panch faisala Exh P 1 merely contain the recitals of a past event namely a decision arrived at between the parties as to the manner in which the parties would enjoy the distinct items of joint family property in severalty
What follows in Exh
P 12 is a mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under section 171b of the Act
That apart the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members
The matter can be viewed from another angle
The true and intrinsic character of the memorandum Exh
P 12 as later confirmed by the panch faisla Exh P 1 was to record the settlement of family arrangement
The parties set up competing claims to the properties and there was an adjustment of the rights of the parties
By such an arrangement it was intended to set at rest competing claims amongst various members of the family to secure peace and amity
The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties
The principle governing this was laid down by the Judicial Committee in Khunni Lal vs Gobind Krishna Narain  Anr LR 1911 38 IA 87
Ameer Ali J delivering the judgment of the Privy Council quoted with approval the following passage from the judgment in Lalla Oudh Behari Lall vs Mewa Koonwar at p 84 The true character of the transaction appears to us to have 1116 been a settlement between the several members of the family of their disputes each one relinquishing all claim in respect of all property in dispute other than that falling to his share and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively
It was in this light rather than as conferring a new distinct title on each other that the parties themselves seem to have regarded the arrangement and we think that it is the duty of the Courts to uphold and give full effect to such an arragement
 This view was adopted by the Privy Council in subsequent decisions and the High Courts in India
To the same effect is the decision of this Court in Sahu Madho Das  Ors
vs Pandit Mukand Ram  Anr  The true principle that emerges can be stated thus If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others the formalities prescribed by law have to be complied with since the transferees derive their respective title through the transferor
If on the other hand the parties set up competing titles and the differences are resolved by the compromise there is no question of one deriving title from the other and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time
As pointed out by this Court in Sahu Madho Das  case it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary
In the present case admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records
There was thus a disruption of joint status
All that remained was the partition of the ancestral residential house called rihaishi the smaller house called baithak and ghersghetwars
The document Exh
P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property
A mere agreement to divide does not require registration
But if the writing itself effects a division it must be registered
See Rajangam Ayyar vs Rajangam Ayyar LR 1923 69 IA 123 and Nani Bai vs Gita Bai  It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status though that 1117 severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants
The document Exh
P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide
In any view the document Exh
P 12 was a mere list of properties allotted to the shares of the parties
In the result the appeal fails and is dismissed with costs
PSS Appeal dismissed


Summary:
 The constitutional validity of Section 198 Cr
PC has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India
The petitioner wife contended that whether or not the law permits a husband to prosecute his disloyal wife the wife cannot be lawfully disabled from prosecuting her disloyal husband
The petitioner asserted that in so far as and to the extent Section 1982 of the Code of Criminal Procedure operates as a fetter on the wife in prosecutising her adulterer husband the relevant provisions is unconstitutional on the ground of abnoxious discrimination Dismissing the petition this Court  HELD 1
Admittedly under the law the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife inasmuch as by the very definition of the offence only a man can commit adultery not a woman
As between the husband and the wife social good will be promoted by permitting them to make up  or break up  the matrimonial tie rather than to drag each other to the criminal court
They can either condone the offence in a spirit of forgive and forget  and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce
They are not enabled to send each other to jail
Perhaps the children are saved from the trauma of one of their parents being jailed 74 at the instance of the other parent
77E G 2
Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman
Section 497 of the Indian Penal Code and section 1981 read with section 1982 of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit
The community punishes the outsider  who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring man  alone can be punished and not the erring woman
77H 78A B Sowmithri Vishnu vs Union of India  Anr   referred to
Section 198 Cr
PC is not vulnerable to the charge of hostile discrimination against a woman
While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished
There is thus reverse discrimination in favour  of the woman rather than against  her
The law does not envisage the punishment of any of the spouses at the instance of each other
Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband
A husband is not permitted because the wife is not treated an offender in the eye of law
The wife is not permitted as Section 1981 read with section 1982 does not permit her to do so
The law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other
78C E