1. This is a plaintiffs' appeal against a judgment and decree of Mr. K.S. Ghambir Subordinate Judges 1st Class, Hoshiarpur, dated the 5th December, 1947, dismissing the plain-tiffs' suit.
2. The following pedigree table will explain the relationship of the parties:
| | | |
Diwan Chand Amar Singh Fattu Nathu
_____|____________________________ | |
| | | | |
Rulia Jagata Kartara | |
(deft.) (deft.) (deft.) | |
| | |
Sadhu Sing Lehoa Sing |
| (plft.) |
| | |
Lakhmi Chand Nasiba |
(plff.) (plff.) |
Babu Harnam Singh
Amar Singh died childless and plaintiffs claim that they own one-third share in the estate left by Chimna. According to the revenue papers, which deal with a large number of Khewats the shares of the various branches of the sons of Chimna are not given in ancestral shares but they are different--more in the case of some & less in the casa of others. The allegation of theplaintiffs in the plaint was that the parties were owners of proprietary lands and occupancy tenancy rights to which they were entitled in ancestral shares, the property being still joint, and that in the name of each of the branches of the sons of Chimna the shares were not in accordance with ancestral shares because there was a family arrangement although they were entitled to equal shares. A dispute arose in regard to the shares and a Panchayat was convened who decided that the three remaining sons of Chimna, i. e., Nathu, Fattu and Diwan Chand, would have one-third share each in the estate of Chimna. This was really a compromise at the instance of the Panchayat and the terms of this compromise were embodied in a document, Exhibit P. 1. In their defence the defendants raised several pleas, but the controversy between the parties in the Court below centred around Exhibit P. 1 the deed of compromise, the issues being:
(1) Whether Diwan Chand deceased executed and completed the agreement Ex. P. 1?
(2) Whether the agreement Ex. P. 1 was got v executed by fraud and is without consideration and hence cannot be acted upon?
(3) Whether the agreement Ex. P. 1 is not admissible in evidence for want of registration?
The learned Judge found that Ex. P. 1 is inadmissible in evidence for want of registration.
3. Counsel for the plaintiffs in appeal submitted in the first instance that Exhibit P. 1 was not a document which required registration, and secondly even if it did, the plaintiffs would be entitled to show that as a matter of fact their share in the estate of Chimna is one-third and not as shown in the revenue records.
4. I would first take up the question whether Ex. P. 1 requires registration. The relevant portions of this document, which is at P. 43 of the typed record, are as follows: --'We .....do hereby declare as under:--
We have proprietary and occupancy lands situate in the area of Badesaron and houses situated in the abadi of village Badesaron. On account of family considerations there has been increase and decrease in the areas of the proprietary and occupancy lands since long. A large area out of the lands belonging to us is mortgaged with prossession with various mortgagees, it having been mortgaged prior to the 8th June 1901. It is fit to be released under Restitution of the Mortgaged Lands Act, Private Panchayat and our well-wishers and relatives have brought about a settlement regarding the disouted disparity in the areas of lands (of our shares) between us as under 'Is tarah pe tasfiya kara diya hai.'
The proprietary land under the cultivation of occupancy tenants ..... mortgaged with possession by Nathu Ham deceased ..... to mortgagees shall belong to Harnam Singh exclusively as before. The other executants shall have no right therein. Our shares in all the remaining lands both proprietary and occupancy and the houses in the abadi shall be as under:
in equal shares ..... 1/3. The proprietary and occupancy lands which are at this time In the possession of Harnam Singh etc., shall also be shared by us above ..... When the sou ' lands are released they along with the land in Our respective possession shall be divided by us in proportion to the above mentioned shares. We shall have no objection to that. In the houses situated in the abadi too ' our shares shall be according to the shares mentioned above. We shall get entries made in the revenue papers in accordance with the aforesaid shares and get them attested. We shall be legally bound by the conditions of this agreement. None of us, the co-sharers, Shall have a right to resile from the conditions embodied in this agreement .......... We agree to and accept the conditions embodied in this agreement.'
5. Counsel submits, that this is not hit by Section 17(1)(b), Registration Act, which conies into operation in regard to immovable property the value of which is more than Rs. 100/-, where the instrument creates, declares ..... or extinguishes, whether in present or in future, any right, title or interest whether vested or contingent. In support he has relied on two judgments in (1) - 'Sakharam Krishnaji v. Madan Krishnaji', 5 Bom 232, and the other -- 'Bageshwari Charan Singh v. Jagar-nath Kuari', 11 Pat 272 (P.C.). But in my opinion neither of these cases has any application to the facts of the case now before us. The document which is in dispute in the present case is not one which can be called a recital of past transactions but it itself declares rights in immovable property which is covered by SECTION 17. The property as it stands today is in the names of the three parties to the dispute in certain- shares. As a result of this document the property shall stand in different shares. It cannot be said that this document does not declare or create, assign, limit or extinguish rights in immovable property of the value of Rs. 100/-. In the judgment of West, J., him-self the following passage is apposite to the facts of the present case:
'Thus a deed of partition which causes achange of legal relation to the propertydivided amongst all the parties to it, is adeclaration in, the intended sense; but a letter''containing an admission, direct or inferential, that a partition once took place, does not declare a right within the meaning of the section.'
Nor does the 'Bageshwari Charan Singh's case decided by their Lordships apply to the facts of the present case because there also it was held that the document did not declare any right, title or interest in immovable property. I am, therefore, of the opinion that this document did require registration and the learned Judge rightly held this point against the plaintiffs.
6. The next submission 6f the counsel was that even if Ex. P. 1 is not there the plaintiffs are entitled to one-third share as claimed by them. In the plaint their allegation was that a difference in shares came about because of a family arrangement. This is in para 2 of the plaint. No such arrangement was put in issue 'and all the issues were connected with Ex. P. 1, the deed of compromise, and therefore the plaintiffs are not entitled to rely upon any other case, but even if they were, there is no roof that the share of the plaintiffs was one-third as claimed by them. This contention of the plaintiffs must also therefore be repelled. In the result this appeal fails & is dismissed withcosts.
7. I agree.