IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 96 of 2002. Date of decision: 22.9.2011. Puran Singh ….. Appellant. Versus Sushil Kumar & Ors. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. G.R. Palsra, Advocate. For the Respondents : Mr. Yoginder Paul, Advocate. Kuldip Singh, J (Oral) . The defendant No.3 has assailed judgment, decree dated 1.11.2001 passed by learned Additional District Judge, Mandi in Civil Appeal No. 74 of 1996 affirming judgment, decree dated 10.6.1996 passed by learned Senior Sub Judge, Mandi in Civil Suit No. 105 of 1992. 2. The facts, in brief, are that respondent No.1 had filed a suit for partition, in which respondents No.2 and 3 were defendants No.2 and 1 respectively. The appellant was defendant No.3. The suit was for partition of residential house comprised in khasra Nos. 211, 214, 216, and 218, measuring 209.15 square meters, situate in Mauja Paddal, recorded in the ownership of Pawan Kumar and in possession of parties. The parties are joint owners in possession of Whether the reporters of the local papers may be allowed to see the Judgment? 2 the suit property. The respondent No.1 wanted his separate share in the suit property; therefore, he filed the suit. 3. The suit was contested and it was pleaded that Pawan Kumar was not owner of the suit property. There was a private partition among parties. The parties since then are in separate possession of their respective shares. The suit property is not in joint possession of the parties. The prayer was made for dismissal of the suit. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is jointly owned and possessed by the parties? OPP. 2. Whether the plaintiff is entitled to the partition of the suit property, as alleged? OPP. 3. Whether the suit property has been partitioned by way of family partition, as alleged? OPD. 4. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 5. Relief. The issues No.1 and 2 were answered in affirmative, issues No. 3 and 4 in negative and the suit was decreed on 10.6.1996. In appeal, learned Additional District Judge affirmed the judgment, decree dated 10.6.1996 of the Trial Court and dismissed the appeal on 1.11.2001, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether a family settlement, which does not purport to create any interest in any specific immovable property but intends to merely allocates different shares to different of the family is required to be mandatorily registered, moreso keeping in view the embargo 3 contained in sec. 17(2) (v) and (viii) of the Registration Act, 1908? 2. Whether an instrument, admitted in evidence is required to be duly stamped, moreso keeping in view sec 36 of the Stamp Act 1899? 4. I have heard the learned counsel for the parties and have also gone through the record. It has been stated by learned counsel for the appellant that the property already stood partitioned, in the family partition vide Ex.D-1. The document Ex.D-1 of family partition does not require registration. The learned counsel for the respondents has submitted that the two Courts below have rightly appreciated the material on record. The document Ex.D-1 is not admissible for want of registration and proper stamps. He has prayed for dismissal of the appeal. 5. The substantial questions of law No. 1 and 2 can be taken up collectively for disposal as they are inter-connected. The controversy in the appeal is very short. It has been submitted that the property already stood partitioned by way of family partition vide Ex.D-1. I have gone through the Ex.D-1. The perusal of this document indicates that the property was divided vide Ex.D-1 on 8.12.1974. Ex.D-1 cannot be construed a memorandum recording past transaction which does not require registration. The document Ex.D-1 itself purports to divide the property, therefore, in view of Section 17 of the Registration Act, 1908, the Ex.D-1 requires registration. In absence of registration of Ex.D-1, it is inadmissible in evidence and cannot be considered in support of the contention that property already stood partitioned. The Section 36 of the Stamp Act, 4 1899 is not of much significance so far controversy in the present case is concerned. Once the document Ex.D-1, is not admissible for want of registration, the two Courts below have rightly appreciated the material on record and it cannot be said that either legally or factually the two Courts below have misconstrued in discarding Ex.D-1. There is no merit in the appeal. The substantial questions of law Nos. 1,2 are accordingly decided against the appellant. 6. In view of above discussion, the appeal fails which is accordingly dismissed with no order as to costs. September 22, 2011 (Kuldip Singh), ( sks) Judge.