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DEED OF PARTITION OR MEMORANDUM OF PARTITION? ONLY MEMORANDUM OF PAST EVENT IS ADMISSIBLE?

(2004) 11 SCC 391 (C.T.Ponnappa Vs State of Karnataka). “4. ...... previous partition has been attempted to be proved by the document dated 2-4-1996, Exhibit P-46, wherein there is a recital that partition had already been effected by deed dated 31-3-1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. If it was unregistered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46 further shows that apart from the partition effected by deed dated 31-3-1975, parties partitioned their properties at least by the deed dated 2-4-1996, Exhibit P-46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. This document being not a registered one was inadmissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers.”

In Roshan Singh v. Zile Singh 1988 AIR 881, 1988 SCR (2)1106 it is held that-- "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 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 docs 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 it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, 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." It is further held that : "It is also well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document in the instant case can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document was a mere list of properties allotted to the shares of the parties."

TO SUM UP THE LEGAL POSITION
(I)A family arrangement can be made orally.
(II)If made orally, there being no document, no question of registration arises.
(III)If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV)Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V)However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI)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 the parties possess.
(VII)If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII)Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX)A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act.

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