Madhya Pradesh High Court
Rajendra Kumar vs Smt. Kashi Bai on 27 October, 2021
Author: Vivek Agarwal
1 MP-1830-2020
The High Court Of Madhya Pradesh
MP-1830-2020
(RAJENDRA KUMAR Vs SMT. KASHI BAI AND OTHERS)
Jabalpur, Dated : 27-10-2021
Mr. Vijay Shrivastava, learned counsel for the petitioner.
This petition has been filed under Article 227 of the Constitution of
India being aggrieved of order dated 11.02.2020 passed by the learned
Second Civil Judge, Class I, Sehora, District Jabalpur whereby an application
moved by the defendant raising objection as to the settlement filed by the
plaintiff Rajendra has been decided and it is held that the requirement of law is
that a memorandum of recital of a formal partition orally made is not required
to be compulsorily registered in the purview of Section 17(1)(b) of the
Registration Act, 1908 but if intended to be an evidence of partition then it is
compulsorily registrable under the Act.
Petitioner, in the civil suit, sought exhibiting Vyavasthapatra
(Ikrarnama) on which objection was raised by the defendant that it being not
registered cannot be exhibited in evidence. The trial Court has held that
Kashibai and Premlal have, though mentioned that they have given some share
to the plaintiff-petitioner but they have not explained anything about the share
of other sons and daughters of Kashibai and Premlal, it cannot be considered
to be a memorandum of partition and on the basis of such appreciation of
evidence did not grant any permission to exhibit Vyavasthapatra
(Ikrarnama) dated 23.12.1995.
Learned counsel for the petitioner, has placed reliance on the judgment
of Co-ordinate Bench of this Court in the case of Chandra Prakash Soni
Vs. Dwarka Prasad Soni and others, (2009)1 MPLJ 200 and submits
that if a deed of partition is reduced in writing to a formal document intended
to be an evidence of partition then it is compulsorily registrable under the Act
of 1908 but if it does not evence any partition in metes and bounds but is a
Signature Not Verified
SAN
mere recital of a formal partition orally made it is outside the purview of
Digitally signed by VIKRAM SINGH
Date: 2021.10.29 18:13:58 IST
2 MP-1830-2020
Section 17(1)(b) of the Act of 1908.
Reliance is placed on the judgment of Supreme Court in the case of
K.G. Shivalingappa and others Vs. G.S. Eswarappa and others, AIR
2004 SC 4130. In fact in the case of Nani Bai Vs. Gita Bak, AIR 1958
SC 706, it is held that though partition may be affected orally, if 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 coparcenar to whom a particular property was allotted ( by partition)
and thus, the document would fall within the mischief of Section 17(1)(b) of
the Registration Act under which the document is compulsorily registrable.
In the present case, recitals of family settlement / Ikrarnama did not
evidence any partition between the coparcenars but only makes a mention of
the fact that some piece of land was handed-over in the earlier partition to
Rajendra S/o Premlal but there is no mention as to amongst whom the said
partition took place and what was the date of the said partition and what was
the share assigned to other coparcenars, therefore, merely an act of handing
over of some piece of land in favour of the plaintiff-petitioner, cannot be said
to be an act of affecting partition between the coparcenars and, therefore, the
impugned order when tested on the touchstone of law laid down by the
coordinate Bench in the case of Chandraprakash cannot be said to be a mere
recital of a formal partition orally made so to bring it out of purview of the
provisions contained in Section 17(1)(b) of the Act so to not to attract the
provisions of the Registration Act. In absence of document being mere a
recital of formal partition, the trial Court has not committed any error calling
for interference in supervisory jurisdiction of this Court vested in this Court
under Article 227 calling for interference. Petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
Vikram
Signature Not Verified
SAN
Digitally signed by VIKRAM SINGH
Date: 2021.10.29 18:13:58 IST
