Radheshyam Dhakad vs Laxmikant Dhakad
2021 Latest Caselaw 9017 MP

                                           HIGH COURT OF JUDICATURE FOR MADHYA
                                                   PRADESH : JABALPUR


                                       Case No.                                  S.A. No.511/2021
                                       Parties Name                           Radheshyam Dhakad
                                                                                     Vs.
                                                                              Laxmikant & Others

                                       Date of order                                  21.12.2021
                                       Bench Constituted                      Justice Vivek Agarwal
                                       Order passed by                        Justice Vivek Agarwal
                                       Whether approved for reporting                   No
                                       Name of counsel for parties      Shri Avinash Zargar, learned counsel
                                                                        for the appellant.
                                                                        Shri Ishteyaq Hussain, learned
                                                                        counsel for respondent No.2.
                                       Law laid down                                     --

                                       Significant paragraph numbers                     --



                                                                     ORDER

(21.12.2021)

This second appeal has been filed on behalf of the

defendant No.2 being aggrieved of judgment and decree

dated 06.03.2021 passed by learned Additional Judge to

the Court of First Additional Judge, District Harda M.P.

in RCA No.72/2018 and RCA No.73/2018 arising out of

judgment and decree dated 17.07.2018 passed by learned

First Civil Judge, Class-II, Harda, District Harda in

RCSA No.700021/2015.

2. Learned counsel for the appellant submits that

plaintiff-Laxmikant had filed a suit for declaration of

title and permanent injunction in regard to the suit

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property being an ancestral property and for declaration

of Will executed in favour of defendant No.1 Kamlesh

to be null and void.

3. It is also not in dispute that defendant Nos.1 and

2 filed a counter claim challenging alienation of suit

property by Smt. Tulsa Bai in favour of defendant No.1

through a Will.

4. Admitted facts of this case are that after death of

Shri Mishrilal land belonging to him were divided

between the three brothers namely Laxmikant,

Chandrakant and Radheyshyam in the ratio of 11 acres

each in favour of the Laxmikant and Chadrakant

whereas Radheshyam got 17.6 acres of agriculture

land. It was decided that each of the three brothers shall

pay sum of Rs.8,000/- per annum in favour of their

mother Smt. Tulsa Bai for her maintenance and

livelihood and in case they failed to do so then Smt.

Tulsi Bai will have a right to seek 2 acres of land from

each of the brothers, for her livelihood.

5. It has come on record that after execution of

partition deed dated 26.06.2006 there was default on

part of defendants No.2 and 3 namely Chadrakant

Dhakad and Radheshyam Dhakad in paying the amount

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of maintenance in favour of their mother as a result she

had filed an appeal before the Sub Divisional Officer,

Harda. This appeal was accepted by Sub Divisional

Officer, Harda vide order dated 26.10.2009 and

directed plaintiff as well as defendants No.2 and 3 to

handover 2 acres of land from their holding in favour

of Smt. Tulsa Bai.

6. It is not in dispute that this order of the Sub

Divisional Officer attained finality and name of Smt.

Tulsa Bai was recorded in the Revenue Records.

7. It is also not in dispute that thereafter Smt. Tulsa

Bai had executed a Will dated 19.08.2011 in favour of

defendant No.1-Kamlesh Dhakad S/o Radheshyam

Dhakad.

8. It is mentioned in the plaint that Smt. Tulsa Bai

after prolonged illness passed away on 14.12.2011

when on the basis of the said Will defendant No.1

Kamlesh Dhakad obtained mutation of said 6 acres of

land in his favour vide order dated 26.07.2012 passed

in Revenue Case No.47-A-6-2011-12.

9. Challenge was to this alienation of land in favour

of Kamlesh Dhakad on the basis of Will. It was alleged

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that Will is forged and fabricated. Smt. Tulsa Bai died

intestate and all three brothers namely Laxmikant,

Chandrakant and Radheshyam are entitled to 1/3rd

share in the suit property.

10. Learned trial Court had framed as many as 11

issues and found that the family partition which was

executed on 26.06.2006 between plaintiff, defendants

No.1 and 2 and Smt. Tulsa Bai is invalid and does not

create any rights in the land in question. It recorded

specific finding that deed of partition dated 26.06.2006

written on Rs.50 Stamp Paper is an unregistered

document. It further recorded a finding that none of the

parties to the suit sought impounding of the document

so to get it validated. It recorded a finding that on the

basis of unregistered family partition no rights had

devolved on the parties.

11. Similarly, while dealing with the issue No.5 as to

whether the Will executed by Late Smt. Tulsa Bai is

valid or not, the trial Court recorded a finding that Smt.

Tulsa Bai had put her thump impression on Will Ex.D-

4 whereas admittedly on documents Ex.D-8 and D-1

Smt. Tulsa Bai had put her signatures. She had also put

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her signatures on her application Ex.D-31 and fard-

batwara Ex.D-2 which are admitted by the parties,

therefore, onus was on the beneficiary of the Will to

point out as to why she had not put her signatures on

the Will and had instead used her thumb impression.

Taking into consideration age of the testator to be 90

years and admission of defendant No.1-Kamlesh that

his grand mother was patient of blood pressure and

used to have pain in her chest, found execution of the

Will to be doubtful and accordingly, held that since

execution of family partition is invalid being not

registered in terms of the requirements of the

Registration Act, 1908 and Will being doubtful decreed

the suit holding that the land measuring 39.63 acres

belonging to late Mishrilal shall be divided equally

between his three sons in the ratio of 1/3rd.

12. First appeal filed on behalf of the Radhyeshyam

Dhakad has also been dismissed by the First Appellate

Court vide judgment and decree dated 06.03.2021

thereby confirming the judgment and decree passed by

the trial Court.

13. Against concurrent finding of facts this second

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appeal has been filed.

14. Learned counsel for the appellant submits that in

light of the law laid down by the Supreme Court in

case of Roshan Singh & Ors vs Zile Singh & Ors

(2018)14 SCC, 814, it is held that writing/instrument

qua past settlement is not required to be registered. It is

held that registration of memorandum of family

arrangement qua properties for which parties setup

competing claims are not required to be registered.

15. Referring to para 9 of the judgment rendered by

Supreme Court which reads as under:-

"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 17(1)(b) 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

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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. Section 17(1)(b) 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 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

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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 Registration Act, 8th Edn., pp.

54-57, it is held that records of a previously

completed partition will be admitted in

evidence."

16. Therefore, in the light of these averments

following substantial question of law have been

proposed namely:-

                                              After      having       held       that      family

                                              settlement/partition    dated    26.06.2006     was

validly executed, whether the Court below

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committed an error of law in discarding the

same ?

17. He also place reliance on judgment of Supreme

Court in case of Thulasidhara & Another Vs.

Narayanappa & Others, (2019) 6 SCC 409. Placing

reliance on para 9.4, it is submitted that since all the

family members are signatories to document Ex.D-1,

therefore, principles of estoppel will be applicable.

18. After hearing learned counsel for the parties and

going through the record it is evident that family

settlement dated 26.06.2006 is Ex.D-1 it reads as

under:-

"bdjkjukek fy[kknh;k vkilh r; dk fy[kknh;k okgd

Jherh rqylhckbZ osok feJhyky th /kkdM flj[kaok ftyk gjnk okyh

dks fy[kk nsus okys Jh %& pUnzdkUr oks y{ehdkUr oks jk/ks';ke firk

feJhyky th /kkdM lkfdu flj[kkaok ftyk gjnk us ,slk th fd

gekjk oks vkidk vkilh r; gks dj bdjkj gqvk gS fd ge rhuks

Hkkb;ksa us vkidks rqylhckbZ dk :i;k [email protected]& ,d yk[k ikWap

gtkj :i;k tks vkidks nh;k gS ftlesa izR;sd Hkkb;ksa us [email protected]& is

rhl gtkj :i;k Qh Hkkb;ks us tqe yk :i;k [email protected]¾ ,d yk[k

ikap gtkj :i;k th rqylhokbZ us pUnzxksiky oks n ?kklhjke oks

o`teksgu firk jkek/kkj oks 3 yhyk/kkj firk y{ehukjk;.k oks fnus'k

firk jkeukjk;.k fuoklh fl[kakok ftyk gjnk esa le{k rqylhokbZ

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us :i;k ,d yk[k ikap gtkj izkIr fd;k gSA mDr jkf'k dk C;kt

vki Jherh rqylhckbZ izfr ekg ds fglkc ls ;k tSlk r; gks oSlk

vius }kjk viuk thou Kkiu dj ldsxhA ;g vkilh r;

bdjkjukek Jh vkseizdk'k vk- feJhyky th /kkdM dh lgefr lg

gh fd;k tk jgk gS ;g :i;k pkjks yksdxh dh lgefr ls gh fd;k

tk jgk gS ;g :i; pkjks yksxksa dh lgefr ls gh mi;ksx gksldsxk

ftldk C;kt dk mi;ksx rqylhokbZ djasxhA D;ksfd rqylhckbZ ds ikl

dksbZ Hkh Hkwweh Lokeh tehu ugh gS blfy;s ;gkWa /ooLFkk vkilh

ikfjokfjd iapks ds le{k cSBdj r; gks dj ;g bdjkjukek fn;k

gS] ;g bdjkjukek tc izHkkoh jgsxk tc rhuks feydj ,d yk[k

ikap gtkj :i;k rqylhckbZ ds ikl tek dj nsosxs vxj ugh djs rks

rhuks Hkkb;ks ds fgLls es ls 2&2 ,dM Hkwfe rqylhckbZ dks izkIr djus

dk vf/kdkj jgsxkA blesa ;g Hkh vkilh 'krsZ gS fd tks Jh feJhyky us xhdwy

xqtj ls vkcknh IykV tks vkseizdk'k oks pUnzdkar firk feJhyky th

ds uke ij vkcknh IykV xzke flj[kok dk tks eksds ij dk;e gS og

mldk ekfyd Jh y{ehdkUr firk feJhyky th jgsxsA blesa dksbZ

fookn ugha jgsxkA ;g dh pUnzdkUr dh tehu Hkwfe Lokeh [kk-u-

[email protected] oks [email protected] oks [email protected] es tks Hkh dqvk gS mlesa viuh viuh

LokfeRo dh eksVj Mkydj dq, ls rhuks uacjks esa ikuh ysus mi;ksx

ysus dk vf/kdkj rhuks dk jgsxk bl Hkwfe [k-u- 35x1 oks [email protected] oks

[email protected] esa vkilh foHkktu vuqlkj tks jkLrk xksgk dk;e gksxk rhuks

mi;ksx oks miHkksx ds fuLrkjh xkM+h cSsy gy o[ojj eos'kh VsDVj

vkfn ds fy, jgsxkA loo vkilh r; dk bdjkjukek fy[kknh;k lks

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lgh fnukad [email protected]@06A"

19. Reading of the family settlement reproduced

above reveals that neither it is a writing/instrument qua

past settlement nor it is a writing or incidental recital of

a previously completed transaction. In fact in para 9 in

case of Roshan Singh (supra) itself Hon'ble Supreme

Court has held that 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 17(1)

(b) of the Registration Act. It is only 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.

20. When tested on the touch stone of aforesaid

judgment then said partition deed being not a mere

recital of a previous partition, has been rightly held to

be invalid for want of registration and in the alternative

also for failure of the parties to get said document

impounded and get it legally admissible.

21. As far as law laid down in the case of

Thulasidhara & Another (supra) is concerned, when

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Ex.D-1 is examined in the light of this judgment then it

is evident that principles of estoppel as laid down in the

case of Kale & Others vs Deputy Director Of

Consolidation and Ors, (1976) 3 SCC 119, reveals that

ratio will come into force when the partition of joint

family properties take place by oral family settlement,

and unregistered document contains signature of all

members, containing list of properties partitioned, then

it can be used as corroborative evidence.

22. In the present case, firstly Ex.D-1 does not

contains signature of all members of the family.

Signature of Smt. Tulsi Bai are missing. Secondly, it is

not a document reciting fact of earlier oral family

partition but is a document pertaining to decision

between the three brothers to divide their family

property at the cost of their mother to which their

mother Smt. Tulsi Bai is not a signatory, therefore, ratio

of laid down in the case of Kale & Others (supra) will

not be applicable to the facts and circumstances of the

case specially when examined in light of law laid down

in the case of Roshan Singh & Ors (supra).

23. Thus impugned judgments have rightly

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discussed the legal position in discarding the family

settlement.

24. Appeal does not give rise to any substantial

question of law lest the proposed one, therefore, appeal

fails and is dismissed.

(VIVEK AGARWAL) JUDGE

Tabish

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