IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.445 of 1999. Judgment reserved on 13.9.2011. Date of Decision: 11th November, 2011. _______________________________________________________ Dropti and others ..Appellants. Versus Shri Laiq Ram and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For respondents No.1 to 4 and 8: Mr. Bhupender Gupta, Sr. Advocate with Mr. I.S. Chandel, Advocate. ____________________________________________________ SURINDER SINGH, J. The present Regular Second Appeal has been filed by the appellants. It was admitted on the following substantial questions of law: “1) Whether the document dated 5.11.1974 mark-X alleged to be a partition-deed has been duly proved in evidence in accordance with law? 2) If question No.1 is decided in the affirmative whether such document is compulsorily register-able and whether it can be looked into evidence without registration?” BACKGROUND FACTS. 2. Shri Hari Singh had three sons, namely Moti Ram, Kirpa Ram and Surat Ram. Moti Ram died between the year 1949-50, whereas Kirpa Ram Whether reporters of the Local papers are allowed to see the judgment? - 2 - died about 2 months prior to filing of the suit in December, 1990 leaving behind his sons, respondents No.1 to 4 herein, “the plaintiffs”. 3. The plaintiffs filed the suit against Surat Ram and Sohan Lal impleading Konla alias Kamla, widow of Kirpa Ram, Smt. Mathi, Smt. Surma Devi and Smt. Sarla Devi wives of Ram Saran, as proforma defendants. 4. During the pendency of the suit Surat Ram died leaving behind Manthi, Besru and Bimla Devi, his daughters, as such they were impleaded his legal representatives, hereinafter to be referred as “the defendants”. Plaintiffs sought the relief of declaration to the effect that they and proforma defendants are owners in possession of the suit land with a consequential relief of injunction against the defendants. CASE OF THE PLAINTIFFS. 5. The case of the plaintiffs has been that the suit land was owned by S/Shri Moti Ram, Kirpa Ram and Surat Ram. Moti Ram had died in 1949- 50. One Smt. Devku had been residing with him as his wife, after his death she relinquished her title in the land and the same devolved upon Kirpa Ram and Surat Ram, being his brothers. In lieu thereof, - 3 - she obtained `700/- in cash and also four gold ear-rings, nose ring and buffalo from said Shri Kirpa Ram, as Surat Ram was not in a position to pay anything to her. Thereafter partition was orally effected between Kirpa Ram and Surat Ram, but its memorandum was drawn on 5.11.1974 (mark X= Ext.PW/A) whereby the land and the house situated in village Sanain of Chak Dharech and Ghawech, were given to Surat Ram and land and house situated in village Kathelri of Chak Dharech and Ghawech, were given to Kirpa Ram. The suit land was mortgaged with real brothers namely Bali Ram and Devi Dass. It was agreed that Kirpa Ram would pay the mortgage money, amounting to `2500/- and other debts amounting to `8500/- from the said two brothers to different persons and on redemption the suit land would be held by Kirpa Ram as an exclusive owner in possession. Later in the year 1976 Kirpa Ram redeemed the mortgage, thus it came in its possession during his life time and after his death it came to the plaintiffs and they remained in its possession. Plaintiffs alleged that said Surat Ram (defendant) executed a gift-deed dated 19.2.1990 in favour of defendant Sohan Lal qua half share of the suit - 4 - land. Its mutation was entered and attested in his favour. Taking advantage of the mutation Shri Sohan Lal had tried to cause interference into the possession of the plaintiffs, hence sought the above relief. CASE OF THE DEFENDANTS. 6. The defendants filed their joint written statement. They denied that Smt. Devku was the wife of Moti Ram, however, it is admitted that she had married Shibia and later Het Ram. According to them, Moti Ram neither left widow behind nor any child, thus there was no question of giving any money, ornaments or buffalo in lieu of relinquishing her right, title and interest, as alleged in the suit. It is specifically averred that all the three brothers, Moti Ram, Surat Ram and Kirpa Ram had been living separately. After the death of Moti Ram, Kirpa Ram and Surat Ram had succeeded to his estate. Private partition as alleged either orally or in writing is denied by them. The payment of mortgage-debt by Kirpa Ram is also denied. Rather the case of the defendants has been that both Kirpa Ram and Surat Ram had redeemed the mortgage by making equal contribution to discharge the - 5 - mortgage-debt. The alleged writing qua partition is stated to be forged and fabricated. In alternative, pleaded that Surat Ram was an old, illiterate and rustic villager, his thumb impression might have been obtained on some papers by practicing fraud, or making misrepresentation or by trick. They specifically denied that the properties situated in village Sanain was allotted to Surat Ram and that of Kathaleri to Kirpa Ram, the father of the plaintiffs. However, they admitted that about 25-30 years back a family arrangement was made under which Surat Ram occupied the land in village Sanain for its better management, while Kirpa Ram came in exclusive possession of the land situated in Chak Kathaleri and both of them had been in separate possession. Their earnings were separate and had been utilizing those earning separately. Defendant No.1 Surat Ram was owner in possession of the suit land. He transferred half share in favour of defendant No.2 Sohan Lal by executing a gift deed. Its possession was also delivered to him and he also executed a Will on 13.5.1991 qua half of the land of his share in favour of defendant No.2 Sohan Lal, to ensure - 6 - that in the event of any defect found in the gift- deed he may not be deprived of joint ownership and possession to the extent of half share in the suit land. 7. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether Smt. Devku Devi has surrendered her rights over the suit land as alleged? .. OPP. 2) Whether there was private partition between the predecessor-in-interest of plaintiffs and defendant No.1, if so its effect? .. OPP. 3) Whether deceased Kirpa Ram has redeemed the suit land, if so its effect? .. OPP. 4) Whether deceased Kirpa had paid mortgage amount and other debt to sum of ` 11,000/-, if so its effect? .. OPP. 5) Whether the defendant No.1 and successor-in- interest was estopped to claim any right, title or interest over the suit land as alleged? ..OPP. 6) Whether the gift deed executed by defendant No.1 on dated 19.2.1990 qua suit land is null and void as alleged? .. OPP. 7) Whether the revenue entries to the suit land are wrong and illegal as alleged? .. OPP. 8) Whether the court has no jurisdiction to try and entertain the suit as alleged? .. OPD. 8-A)Whether Surat Ram deceased has executed a legal and valid Will in favour of Sohan Lal, as alleged? .. OPD. 9) Whether the suit is not properly valued for the purposes of court fee and jurisdiction, as alleged? ..OPD. 10) Relief. - 7 - 8. Both the parties went on trial. After the conclusion thereof and upon hearing the parties, the learned trial Court answered issues No.1, 2 and 4 against the plaintiffs, as such their case for declaration was declined, though other issues were decided in their favour holding qua Issue No.4 that only the mortgage debt was paid by Kirpa Ram, consequently a decree for permanent injunction was passed restraining the defendants from causing any interference in their possession, till Sohan Lal defendant obtains a decree qua his share for possession by due process of law. FIRST APPEAL. 9. Feeling aggrieved by the impugned judgment and decree passed by the learned trial Court, the defendants filed appeal before the learned District Judge against the decree of injunction and the plaintiffs also filed separate appeal bearing Civil Appeal No.148-S/13 of 1995. During the pendency of the appeal, the plaintiffs moved an application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in the plaint by taking the plea that in case it was found that the document of partition was admissible in evidence despite its non-registration, - 8 - in that event they had acquired the title by adverse possession and also that the suit property had fallen to their share in a family settlement/arrangement. The application was allowed. Consequent there upon, the defendants filed fresh written statement and also set-up counter claim that Sohan Lal was joint owner in possession of the suit land to the extent of half share and also prayed for a decree of joint possession in his favour. Thus, the above amendment necessitated the following additional issues which were framed by the learned District Judge on 24.3.1999: 9-A) Whether the plaintiff has acquired title to the suit property by adverse possession as claimed? .. OPP. 9-B) In case the plea of partition is not established, whether there was a family settlement/ arrangement between the parties and the suit land was allotted to the plaintiffs in that arrangement/settlement and such arrangement has become final and is binding on the parties as claimed? .. OPP. 9-C) Whether the defendants are joint owners in the suit property and are entitled to the relief of declaration to this effect and also to the relief of joint possession? .. OPD. 10. The learned first appellate Court after hearing the parties and on going through the - 9 - evidence adduced on record took note of the para-6 of the written statement wherein it is mentioned that the arrangement had taken place 25/30 years back, thus when counted the year of such an arrangement it came to the year 1974 in this background the evidence of parties was appreciated, thus it was held that the private partition had earlier taken place between Surat Ram and Kirpa Ram and in the year 1974 only a Memorandum of Partition Ext.PW/A was executed. In the partition effected earlier the suit land fell to the share of Kirpa Ram, the father of the plaintiffs and the defendants were estopped to raise counter claim by their act and conduct. Because of these findings issues No.9A and 9-B became redundant. Thus, in view of the findings and discussions, point No.1, point No.2 were answered in negative. Consequently, the appeal filed by the plaintiffs was accepted and the suit filed by them was decreed in its entirety and a declaratory decree declaring the plaintiffs and proforma defendants as owners in possession of the suit land was passed against the contesting defendants and further they were also restrained from causing any interference in the possession of - 10 - the plaintiffs over the suit land, whereas the appeal of the defendants was dismissed. Hence the present regular second appeal by the defendants. PRESENT REGULAR SECOND APPEAL. 11. During the pendency of this appeal, Smt. Manthi also died and her legal representatives were brought on record. 12. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri B.C. Verma, vehemently argued that the learned first appellate Court has miserably failed to appreciate that the oral partition, as alleged, stood not proved. Further the writing mark X= Ext.PW/A was not at all admissible in evidence and otherwise also the said document could not have been looked into evidence at all for want of registration and that once the said document is taken out of consideration the suit property remains joint inter se the parties to the suit, which fact is also apparent from the revenue record. 13. Contra, Shri Bhupender Gupta, learned Senior Advocate duly instructed by Shri Neeraj Gupta countered the aforesaid arguments and supported the impugned judgment and decree - 11 - passed by the learned first appellate Court. He also referred to the statements of parties on record and submitted that the document mark X= Ext.PW/A is a memorandum of partition and there is no legal requirement of its registration. He also ventilated that as per reference made in the said document, Kirpa Ram, the father of the plaintiffs, had redeemed the suit land from the mortgagees and he took its possession without any objection from Surat Ram, which shows that the said writing was also acted upon. According to him, the impugned judgment and decree passed by the learned first appellate Court on proper appreciation of evidence, thus requires no interference. 14. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through and examined the record. 15. As already stated above, the plaintiffs asserted oral private partition effected earlier between their predecessors-in-interest, i.e., Kirpa Ram and defendant Surat Ram and later on a writing was executed on 5.11.1974,(Mark X= Ext.PW/A) whereas, the defendants denied such a partition. However, they took up the stand that - 12 - due to the family arrangement between Kirpa Ram and Surat Ram for the better management and cultivation of the suit land Surat Ram started living in village Sanain and Kirpa Ram in village Kathaleri for the last 25/30 years and they had been cultivating the land separately and since then they were having separate income and expenditure of their own. They also admitted that the land at Chak Galu Kalan was mortgaged with possession with Bali Ram and his brother and it remained in possession of the mortgagees till its redemption. Now if the plea as taken by the defendants is considered with respect to the separate possession of the parties on the basis of the family arrangement, it goes to the year 1974 from the date of the written statement filed by the defendants and synchronizes with the writing mark X=Ext.PW/A. 16. Further, DW4 Sohan Lal stated that Surat Ram was his maternal grand-father. He also admitted that the landed property at village Galu was mortgaged with Balu Nambardar (PW4) and further stated that Surat Ram and Kirpa Ram used to reside in different villages for proper management of the property. Kirpa Ram used to - 13 - render help to Surat Ram in cultivating the land because he was very old. In cross-examination, he stated that he had seen both the brothers residing separately since he gained understanding and further that Surat Ram did not own any cattle and oxen. If this was the position, then there was no question of family arrangement for the better management of the property. Even Mast Ram their witness (DW6) also affirmed the fact that Surat Ram had been residing separately for the last 20/25 years in village Sanain. It stands proved that both these brothers had been residing separately. 17. Contrary to the above evidence, plaintiff Laiq Ram testified about the oral partition prior to the writing Ext.PW/A in the year 1974. Even in his cross-examination he reaffirmed that the partition had preceded the execution of the writing in the year 1974 in his presence. PW2 Sunder Singh is the scribe of the said document, which, according to him, was executed at the behest of Surat Ram and Kirpa Ram in the presence of Padma Ram and Sita Ram (PW3). In cross-examination he admitted that though the land is joint inter se the brothers in different villages, it was managed and - 14 - cultivated by them separately and they were also separate in mess. He further stated that he was apprised by the parties that the land was partitioned by them in the presence of the witnesses. PW3 Sita Ram a marginal witness to the said document stated that PW2 scribe scribed the document Ext.PW/A, it was read over and explained to both the parties including Surat Ram defendant, thereafter he appended his thumb impression on it in his presence. Therefore, in view of the aforesaid evidence it stands proved that partition had proceeded to the execution of document Ext.PW/A on 5.11.1974 by Kirpa Ram and Surat Ram in the presence of the witnesses aforesaid, which also finds support from the written statement as well as the statements of the defendants’ witnesses, though they stated that there was an arrangement for the management /cultivation of the land about 25/30 years back which also relates back to the year 1974. 18. Now the question remains whether it is a deed of partition or memorandum of partition. If it is held a partition deed creating a title and interest in the parties to the property in dispute, for the first time, in that event such document/writing - 15 - would require compulsory registration under the provisions of Section 17(2) of the Indian Registration Act. Non-registration of such document would be hit by bar of Section 17 of the Act and would be inadmissible in evidence. However, its use can be limited for collateral purposes only. But if it is a memorandum or acknowledgement of a partition already effected orally, it would not require registration unless it be that by that very document the will to separate and the manner of the partition is to be deduced. 19. It is well settled that where a perusal of the document itself shows that it does not profess to be anything more than an acknowledgement that a partition had been effected back, it does not create any right in any property and its registration is not compulsory. It is simply a piece of evidence supporting the allegation that a partition was effected at a certain date. It is equally well settled that if the document requires registration and the registration has not been done, as already stated above it can only be used for collateral purpose, to prove the possession. - 16 - 20. In the instant case the scribe was not a professional deed-writer. He happened to be one of the members of the nearby village though distinctly related to the parties, whose services were requisitioned for its execution. Therefore, the substance of the writing aforesaid has to be given due weight avoiding other technicalities. Although, the document starts qua transaction in present, yet if it is gone through carefully it gives an essence and meaning that the partition had already taken place and it was only a memorandum thereof. This inference can particularly be drawn from the fact mentioned therein that the moveable property which the parties had with them, stood already disbursed amongst them and further that Smt. Devku, the widow of their elder brother Moti Ram was given an amount of `700/- alongwith the gold ornaments and a buffalo as aforesaid by Kirpa Ram since Surat Ram, his brother was unable to make the payment. In addition, there is also a recital in the document that the suit land situated in village Sanain alongwith the house and the shop standing thereon was already given to Surat Ram, who had been in possession thereof. Further - 17 - the house and land situated in village Kathaleri were given to Kirpa Ram. This means that there had already been a severance of status inter se the parties and the partition had already taken place between Surat Ram and his brother Kirpa Ram even prior to execution of the writing Ext.PW/A. Therefore, it is clearly proved to be a memorandum of partition and requires no registration at all. 21. Further, the perusal of the document aforesaid also shows that it was Kirpa Ram, who was to redeem the suit land from the mortgagees, i.e., Bali Ram and his brother. PW4 Bali Ram corroborates his version. He testified that the suit land was mortgaged with him, which was redeemed by Kirpa Ram by making the payment of mortgage money of `2,500/- on 12.6.1976 and to that effect he proved receipt Ext.PW4/A. He further stated that the suit land fell within his Nambardari and stated that Surat Ram used to reside in village Sanain and Kirpa Ram in village Kathaleri alongwith his sons. He further stated that since its redemption Kirpa Ram had been in its possession and after his death it was in the possession of his sons, which fact is also - 18 - corroborated by statement Ext.PX/14 (placed in evidence in Civil Appeal file No.148-S/13 of 1995), made by Sohan Lal defendant before the Assistant Collector 1st Grade wherein he also clearly stated that the possession was with the plaintiffs which dehors the entries in the revenue record. Thus, the possession remained with the plaintiffs, which was confirmed by the memorandum of partition and since then no attempt was made by Surat Ram during his life time to assert his own title over the suit land even when it was redeemed by Kirpa Ram exclusively. Further, unrebutted statement (Ext.PX/14) of Sohan Lal made before the Collector Settlement also shows that all the three daughters of Surat Ram were married and this fact also find mentioned in the writing aforesaid regarding which it had been canvassed that Bimla Devi was unmarried is incorrect as she had a dispute after the marriage, but it stands proved that she was already married. 22. Another point on which the challenge is made to Ex.PW/A is that Devku was not the wife of deceased Moti Ram, thus the narration qua giving money, ornaments and buffalo in lieu of - 19 - surrendering her share was untrue, also stands falsified by PW7 Jagat Ram. He stated that Devku aforesaid was his father’s sister and testified that Devku was the wife of Moti Ram. After the death of Moti Ram, she left his house and in lieu of her share she was given ornaments and buffalo etc., thereafter she married to Shiv Ram and then Het Ram. Even she left Het Ram and ultimately started residing in his house till her death. The last two marriages were admitted by the defendants even, but denied having married Moti Ram. Jagat Ram aforesaid is a near relative of Devku and he clearly stated about the marriage with Moti Ram. He could not even be shattered in his cross- examination. Thus, the averments made in the writing Ext.PW/A were acted upon and are proved to be correct. 23. As already stated above, the writing Mark- X=Ex.PW/A is proved to be a memorandum of partition and there had been severance of status inter se the parties and the partition had already taken place even prior to its execution, therefore, it does not require to be compulsory registered. (See Tek Bahadur Bhujil v. Debi Singh Bhujil and - 20 - others, AIR 1966 SC 292 and Shiv Ram v. Thakar Dutt, AIR 1973 (HP), 62). 24. I find no error in the impugned judgment and decree passed by the learned first appellate Court, as such appeal sans merit and is accordingly dismissed. The substantial questions of law are accordingly answered. 25. Parties to bear their own costs. November 11, 2011. (Surinder Singh), (rc) Judge.