Roshan Singh and others Vs Zile Singh and others

D.K. Kapur, C.J.@mdashThis appeal arises from the judgment of a learned single Judge in Suit No. 231 of 1979, in which the claim was for a declaration or alternative relief for partition and injunction. The plaintiffs, who are now respondents 1 to 4 are four brothers, sons of Shri Soonda. The defendants were the widow, three sons and two daughters of Shri Puran Singh. The present appeal has been filed by the three sons whereas the widow and two daughters of Shri Puran Singh are respondents 5 to 7. The relationship between the parties is indicated from the pedigree table reproduced below :

It will be seen from the same that all the parties are descendants from a common ancestor, Chattar Singh. The family had ancestral property consisting of agricultural land and residential property in village Nasirpur, Delhi. The agricultural land was partitioned between Puran Singh and Soonda in 1955. There was a formal mutation to that effect in the Revenue record on 11th June, 1955. There was another partition concerning the residential properties, i.e., the houses, gher/ghatwar and a memorandum of partition was written on 3rd August, 1955, which is Exhibit P-12 on the record. According to this partition, a residential house and some open space marked A-1 to A-2 in the plan Exhibit P. W. 25/1 fell to the share of Puran Singh. Soonda got the house B-1.

2. These two partitions are not disputed to the extent mentioned above. The dispute is about some other property shown in the plan Exhibit P. W. 25/1. According to the plaintiffs, Soonda got ghers B-2 to B-5 shown in the yellow colour in the plan Exhibit P. W. 25/1. The gher shown as A-3 was allotted to Puran Singh. The total area of A-1 to A-3 and B-l to B-5 was 2,417 sq. yards. According to the plaintiffs, the property was so allotted so as to equate the areas, to bring about this equation ghers B-3 and B-4 were given to Soonda by Puran Singh from his Khasra No. 439/1.

3. The plaintiffs claimed that the separate exclusive possession of the shares mentioned in the memorandum of partition were retained by the parties till February, 1971, when there was a dispute between the parties because the plaintiffs wanted to make some construction on the gher marked B-2, but defendants 1 to 3 demolished the wall and there were criminal proceedings u/s 145 of the Criminal Procedure Code. The Sub-Divisional Magistrate and the Additional District Judge came to the conclusion that the property B-2 belonged to defendants 1 to 3. This is why the suit has been filed.

4. The prayer of the plaintiffs was that a declaration should be given that the property had already been partitioned, and alternatively, it should be held that there was no such partition and a formal partition should now be effected. Another claim was that a passage should be given as an easement of necessity to the plaintiffs for access to their gher B-2 through field No. 439/1. A mandatory injunction to this effect was claimed.

5. It was the claim of the defendants that Puran Singh had left a will by which he left all his property to defendants 1 to 3 excluding defendants 4 to 6. Thus, it was claimed that defendants to 6 were unnecessary parties to the suit.

6. The learned trial Court framed a number of issues and proceeded to decide the same. The principal question was whether the plaintiffs were the owners in possession of property marked B-2, B-3, B-4 and B-5 in the plan. After elaborately discussing the evidence, the learned single Judge came to the conclusion that the plaintiffs were the owners of property B-1 and B-2 in the plan and A-1 and A-2 belonged to the defendants. As far as A-3 and B-5 were concerned, it was held that the parties had an equal possessory title over the same. As far as B-4 is concerned, the Court held that an easement of necessity existed over this portion, but this had to be kept to the bare minimum and held that the plaintiffs are entitled to the minimum passage over this area. The Court also held that the portion B-3 should come to the plaintiffs and in exchange they would give up a portion which marked with an arrow line ''L-M'' by the learned single Judge. This is the way the suit was decided by the learned single Judge.

7. In appeal, it is contended by Learned Counsel for the appellants that the Court has gone wrong in relying on the two documents Exhibit P-12 and Exhibit P-1. It was claimed that these documents are not admissible in evidence u/s 17 read with Section 49 of the Registration Act. The real point made by Learned Counsel is that these are partition documents and as they are not registered, they are not admissible. Learned Counsel has urged that the judgment of the Lahore High Court in AIR 1934 759 (Lahore) , fully applied to the present case, and hence, documents Exhibit P-12 and Exhibit P-l could not be admitted into evidence.

7A. An examination of the judgment in the Lahore case shows that the Court held as follows :

He however has attempted to argue that partition was not effected when Exs. P-5 and P-6 were executed but has suggested that it had taken place orally five or six months before. But neither of these documents contains any such recital of a prior completed partition. A perusal of their contents shows, on the other hand, that the partition took place at the time of the execution and they were intended to be the sole repository of the transaction. The case now put forward is inconsistent with that set up at the trial or in the mutation proceedings in 1927 and there is not a title of evidence on the record to prove an oral partition having been effected some time prior to the execution of Exs. P-5 and P-6.

The contention of Learned Counsel is based on the statement in Exhibit P-12. That is in the following terms :

Today after discussions, it has been mutually agreed and decided that house rihaishi (residential) and the area towards its West which is lying open i.e., the area on the back of the rihaishi (residential) house has come to the share of Chaudhary Pooran Singh.

The other judgment which is relevant on the point is the judgment of the Supreme Court in Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, , in which the difference between a partition-deed and a family arrangement has been stressed. The Court held as follows :

Family arrangements as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties possess.

Continuing the discussion on the question as to whether the document Exhibit P-3 in the case before them was a partition deed or a memorandum regarding a family arrangement, the Court held as follows :

The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property.

There is another Supreme Court''s judgment reported as Sahu Madho Das and Others Vs. Mukand Ram and Another, . where the definition of a family arrangement and the definition of a partition deed is analysed.

8. No doubt the question whether a document is a memorandum of family arrangement or is a partition deed, sometimes becomes difficult to ascertain because the two are somewhat similar. It is, therefore, necessary to reproduce the whole of Exhibit P-12. It reads as follows :

Today after discussions, it has been mutually agreed and decided that house rihaishi (residential) and the area towards its West which is lying open i.e., the area on the back of the rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Zaildar.

2. 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 Sunda from the field and gitwar in the Eastern Side.

3. Rest of the area of the field and gitwar will be half and half of each of co-sharers. The area towards West will be given to Chaudhary Pooran Singh and towards East will be given to Chaudhary Soonda.

4. Since house rihaishi has come to the share of Chaudhary Pooran Singh, therefore, he will pay Rs. 3,000/- to Chaudhary Soonda.

5. A copy of this agreement has been given to each of the co-sharers.

Sd/- (in Hindi)

D/3-8-1955

Pooran Singh Zaildar

L. T. I.

Ch. Soonda.

An examination of this document does not appear to show that it is a partition deed. It appears to be a record of an arrangement arrived at between the parties regarding the manner in which the properties have to be dealt with. It is not a partition as such, but a record about a partition which has to be made. The record was apparently kept so as to know how the properties had to be divided afterwards. There is no specification of the actual areas in the arrangement. It does not, therefore, seem to be a partition deed as such. This document is dated 3rd August, 1955. The other document, Exhibit P-1 is called a panch Faisia. As appears from the document which is dated 31st January, 1971, a compromise was arrived at in the presence of a lot of persons. For purpose of convenience this document is also reproduced as follows :

To-day on 31-1-1971, the following person assembled to effect a mutual compromise between Chaudhary Pooran Singh and Zile Singh etc., and it was unanimously decided that :

1. The gher in front of Bhaiyan which starts from Bhaiyan, will be in the share of Zile Singh etc., up to the boundary wall of loose stones.

2. The back wall of Hari Kishan''s house will be raised in straight line along with the gher up to the boundary wall of loose stones. On one side of this wall will be the gher of Zile Singh etc., and on the other side, i.e., along with the barber''s house which has been purchased by Roshan, will be of Zaildar.

3. The remaining share of Zile Singh etc., out of the land behind the house of Zaildar and half share from the common gher towards North beyond the line of loose stones, will be made good from the field of Zaildar in the Eastern side along with the field of Zile Singh etc.

4. The parties will get the shortages and excess in area made good with the help of local Patwari by bearing the 50 : 50 cost.

5. If the passage for the backside is required, the parties may leave the passage by contributing 50 : 50 land.

6. If any misunderstanding arises at the time of measurement or in the interpretation of the language of the Panchnama, it will be decided by these very panchas.

This appears to be a kind of judgment by a group of persons because the signatories do not appear to be the actual parties to the compromise. We do not think that this compromise arrived at by another group of persons can be described as a partition deed. Therefore, it is not possible to accept the contention that Exhibits P-1 and P-12 are documents that require compulsory registration under the Registration Act. We have given our anxious consideration to the facts and circumstances of this case. It appears that the parties had mutually divided their agricultural land as per mutation Exhibit P-2, which gives full details of the agricultural land divided between the parties.

9. This was followed by the arrangement between the parties regarding the residential, property. This was in August, 1955. As the specific areas were not defined, it appears that there remained a conflict between the two groups as to what was the actual area. In 1971, there was a compromise in the presence of a number of persons, but when this document was sought to be put into effect, disputes arose which resulted in proceedings u/s 145 of the Criminal Procedure Code. The order passed by the Sub-Divisional Magistrate was affirmed by the Additional Sessions Judge and a Criminal Revision No. 84/74 arising out of the. proceedings u/s 145 was also dismissed. The noteworthy fact is that the order which was affirmed by the High Court was in the following terms :

As it has been proved beyond doubt that Puran Singh was given land continuous with his residential area for the partition of ancestral property in lieu of agricultural land given to Zile Singh and as it has been conclusively proved that Puran Singh has been residing continuous to Bekhal No. 2 it is therefore, presumed that he was in possession of this piece of land on the date of the passing of the preliminary order and two months prior to that. I further order that the possession of this land be delivered to Shri Puran Singh until evicted in due course of law.

The last portion of this order which was passed on 26th April, 1972, shows that the possession was to continue till there was an order by the Civil Court to the contrary.

10. Now having held above that the documents in question are admissible, there is still a great deal of confusion as to the correct results that follow from the arrangement between the parties. Obviously, the two branches descend from Chhattar Singh. They had to take an equal share in both the residential as well as the agricultural property. As far as the agricultural property is concerned, there is no doubt at all that it was partitioned between the parties in accordance with the mutation and there is no dispute about the same. The only dispute is about the residential property and the area surrounding the same. Here again, there is no dispute about the two houses, but the plaintiffs seem to be right when they say that the vacant area had to be adjusted so as to equate the two portions. Exhibit P-12 which is the document showing the arrangement is not only an indication of the division, but is in accordance with the actual facts. The larger house or portion of the house has come to the share of Chaudhary Pooran Singh and the smaller portion has come to the portion of Chaudhary Soonda. The arrangement was to increase the open area as far as Soonda was concerned, so as to get a half-and-half share between the two branches. The dispute between the parties has turned largely on the property B-2. This is claimed not to be ancestral property. But this was the very property which was in dispute at the time the proceedings u/s 145, Criminal Procedure Code were taken. The main point that seems to support the plaintiffs is the fact that the area as finally determined, according to the plaintiffs case gives a half-and-half share to the two parties. In other words, Pooran Singh got the larger house, but Soonda got more of the land. Even if there had been no arrangement between the parties about it, this would be the manner in which the partition would be effected between the parties. There is no doubt that the arrangement Exhibit P-12 was intended to give an equality between the two parties as far as the area was concerned. We are, therefore, of the view that the learned single Judge was right in holding that the property was divided in the manner he has indicated. In any event, we do not find sufficient cause for deviating from the judgment delivered by the learned single Judge on an examination of the facts and law applicable to the circumstances of the case. As we had a great deal of difficulty in understanding the actual controversy between the parties, we had requested both Learned Counsel to file written arguments in addition to oral submissions. We have examined those written arguments with great care. Though the facts are confusing, we must say that the learned single Judge has resolved the conflict in accordance with the evidence on record and, therefore, we agree with the same. This appeal is accordingly dismissed, but we leave the parties to bear their own costs.