wp370.17.J.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.370 OF 2017 1] Shri Rama s/o Chandrabhan Akare, Age 60 years, Occ: Agriculturist, R/o Chagan jangal, Village Dhanla, Tahsil Mouda, District Nagpur. 2] [ENTITY] s/o Janardhan Jambhulkar, Age 46 years, R/o Kanhan, Tahsil Parseoni, District Nagpur. 3] Smt. [ENTITY] w/o Chhagan, Jaunjal, Age 30 years, Occ: Labour, R/o Dhanla, Tahsil Mouda, District Nagpur. 4] Shri [ENTITY] s/o Ramaji Akare, Age 28 years, Occ: Agriculturist, R/o Bori, Post Salva, Tahsil Parseoni, District Nagpur. PETITIONERS V E R S U S Smt. [ENTITY] w/o [ENTITY], Age 30 years, Occ: Agriculturist, R/o Banpuri, Post Satak, Tahsil Parseoni, District Nagpur. RESPONDENT Shri [ENTITY], Advocate for Petitioners. Shri [ENTITY], Advocate for Respondent CORAM: ROHIT B. DEO, J. DATE: th 17 OCTOBER, 2018. ORAL JUDGMENT
1] Heard Shri [ENTITY], the learned Counsel for the petitioners and Shri [ENTITY], the learned Counsel for the respondent.
2] [SECTION] made returnable forthwith by consent of the learned Counsels for the parties.
3] The petitioners are defendants in [CASE NUMBER] which is instituted by the respondent - plaintiff seeking decree of partition, separate possession, cancellation of sale-deed and permanent injunction qua the suit property which is agricultural land admeasuring 2.46 hectare situated in Bori (Singari) Tahsil Parseoni, District Nagpur.
4] The petitioners are aggrieved by the order dated 11.01.2017, by and under which, the Trial Court rejected the objection of the petitioners to exhibit the document which is styled as "Mutual Settlement - Compromise Deed".
5] The objection to exhibiting the said document is twofold. The first objection is that the document is not referred in the suit plaint and the second objection is that the document is unregistered and is not duly stamped. The objection is rejected by the Trial Court holding that there is a plea in paragraph 4 of the suit plaint and that the document is not a document of partition and need not be impounded. The Trial Court has not considered much less decided the objection that the document is compulsorily registerable.
6] Reference to the contents of the document which is the bone of contention is in order. The document is executed by [ENTITY] in favour of [ENTITY], Smt. [ENTITY] w/o [ENTITY] and Smt. [ENTITY] w/o [ENTITY]. The recital in the document is that the suit property is recorded in the name of [ENTITY] in the record of rights. The document then purports to declare that [ENTITY], Smt. [ENTITY] and Smt. [ENTITY] shall have share in the said property to the extent 0.82 hectare each. The document further recites that Shri [ENTITY] shall execute gift-deed or sale-deed or any other document and shall obtain separate 7/12 extract. Be it noted, that the recital is that the said agricultural land is an ancestral property.
7] [SECTION] of the [ACT] reads thus:
17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, [ACT], or the [ACT], or the [ACT], or the [ACT] or this Act came or comes into force, namely,
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;] Provided that the [State Government] may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of [SECTION] of the [ACT], shall be registered if they have been executed on or after the commencement of the [ACT], and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said [SECTION]] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such company; or
(v) [any document other than the documents specified in sub-section (1-A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by the [Government]; or
(viii) any instrument of partition made by a Revenue Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the [ACT], or the [ACT]; or
(x) any order granting a loan under the [ACT], or instrument for securing the repayment of a loan made under that Act; or [(x-a) any order made under the [ACT], vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.
[Explanation. A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.
[SECTION] provides that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in immovable property is compulsorily registerable.
Plain language of the document in question would reveal that the document purports to create and, at any rate to declare, such right, title or interest. It is not even the case of the respondent that the document is introduced in evidence as evidence of any collateral transaction not required to be effected by registered instrument. The [SECTION] would not come into play and the document which is unregistered cannot be received as evidence of any transaction affecting the suit property.
8] The learned Counsel for the respondent Shri [ENTITY] relies on the decision of a learned Single Judge in [ENTITY] s/o [ENTITY] (Dead) thr. [PRECEDENT] wd/o [ENTITY] reported in 2008(5) ALL MR
671. It would be apposite to note the substantial questions of law which were involved in the said case:
"(1) Whether Exh.43 is merely a memorandum of partition or a document compulsorily registerable?
(2) Whether the field Survey No.18 mentioned in paragraph 13 of the judgment of the trial Court is available for partition between parties?"
The document is held by the learned Single Judge to be not compulsorily registerable since the document is merely memorandum evidencing that the partition had taken place orally between the parties in the past the factum of which was reduced to writing for the purpose of effecting mutation entries in the revenue record. Paragraph 18 of the said decision reads thus:
18. From the evidence led in the suit it must be observed that document Exh.43 is merely memorandum by which it is evident that partition had taken place orally between the parties in the past. The parties had decided to reduce the fact of partition in writing to inform revenue authority to effect mutation entries in the revenue record.
Such document can not be considered as disposition or conveyance or assignment or settlement requiring registration.
The decision does not take the case of the respondent any further since the document in question is not a memorandum of partition which has taken place in the past and which is acted upon. It is manifest from the document that rights and interests to/in immovable property are created or declared by and under the document.
9] Shri [ENTITY], the learned counsel has invited my attention to the decision of the Apex Court in [PRECEDENT] and in particular to paragraph 13 which reads thus:
13. In [PRECEDENT], it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under [SECTION] of the [ACT]. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of [SECTION] of the [ACT]. This decision was followed in [PRECEDENT]. In Sk. Sattar Sk. Mohd. Choudhari v.
Gundappa Amabadas Bukate after analysing the judgments, referred to above, this Court observed:
(SCC p. 382, para 27) "27. Partition, specially among the coparceners, would be a 'transfer' for purposes of [ACT] or not has been considered in Nani Bai v.
Gita Bai Kom Rama Gunge and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would fall within the mischief of [SECTION] of the [ACT] under which the document is compulsorily registerable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in [PRECEDENT]."
Shri [ENTITY] further relies on the decision of the Apex Court in [PRECEDENT], and in particular on the following observations: paragraph 1 reproduced:
1. We agree with the view taken by the High Court that the so-called family settlement arrived at between the appellant, his brother, the respondent herein and their father required registration and since the document was not registered, it was inadmissible in evidence. No reliance could not be placed upon the so-called family settlement arrived at between the parties. In the absence of any such settlement he father had 1/3rd share in the property which he could will/gift to any person.
10] In the light of the discussion supra, the order impugned is quashed and set aside.
11] Rule is made absolute in the afore-stated terms.
JUDGE [ENTITY]