1. Challenge in this writ petition is to the order dated 4th May, 2011, whereby the learned Additional District Judge, Laxmangarh, District Alwar, did not allow the petitioner-defendant to mark exhibit on the partition deed, as the same was not registered under the Registration Act, 1908.
2. Adumbrated in brief, the facts of the case leading to the writ petition are that the plaintiffs-respondents filed a suit for partition stating that one property situated at village Badoda Mev, Tehsil Laxmangarh, District Alwar, was the joint property. It was further averred that the parties to the suit were members of one family. Both the parties were the legal descendants of common ancestor Bohara and the property in dispute belonged to deceased Bohara on which plaintiffs' father Badri and defendant Babu lal resided jointly. It is also alleged in the plaint that Badri Prasad and defendant Babu lal had partitioned their properties by their mutual consent and out of the total property, one Haveli came in possession of the plaintiffs' father and other Haveli came in possession of the defendant and thus, there was no dispute about these two Havelis, as they stood partitioned and were in possession of both the plaintiffs and defendant, separately. It is further averred that there was some disputed property, which was not partitioned and kept by both of them in a joint property pool. The father of the plaintiffs and the defendant, jointly constructed six shops and two rooms. They were constructed in such a manner that they could easily be partitioned. These shops were also let out on rent jointly by them and plaintiff no. 3 had been running a tea stall in one shop for the last ten years. It is alleged that about five years back, plaintiffs' father expired and thereafter, the defendant started raising obstruction in the use of joint possession of shops.
3. The petitioner-defendant denied the averments made in the plaint and contended in Para 3 of the reply specifically that the partition of entire property had already taken place in writing on 13th August, 1964 in the presence of Kalyan Sahai and witnesses namely Pyare lal Mahajan, Mangal Chand Mahajan, Madho Prasad and Girraj Prasad and since then, the disputed property has been in possession of the defendant and they are the exclusive owner of the said shops.
4. The defendant while producing evidence intended to mark exhibit on written partition dated 13th August, 1964, but the learned trial court did not permit the petitioner-defendant to mark exhibit thereon observing that the same was not registered under the provisions of the Registration Act. Aggrieved with the said order, the petitioner-defendant has invoked extra-ordinary jurisdiction by way of filing the instant writ petition.
5. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order.
6. Learned counsel for the petitioner-defendant canvassed that the partition between the parties had already taken place on 13th August, 1964 in respect of residential as also the present disputed property in the presence of Kalyan Sahai and above named witnesses. This fact was elucidated in the reply by the defendant, but the plaintiff did not deny it by way of filing a rejoinder. The plaintiff also did not put any question in the cross-examination with regard to this partition deed and blatantly reflected ignorance about the same. Learned counsel further canvassed that under Section 49 of the Registration Act, the document was not required to be registered, as it was being used for collateral purpose. He further canvassed that since 1964, all the parties have been residing and in occupation of the partitioned property, which fell to their share. So far as the question of property, which has been in occupation of the respondents-plaintiffs is concerned, the respondents-plaintiffs have come out with the case that this property had been partitioned and came in their possession but so far as the property which is in possession of the petitioner-defendant is concerned, they have come out with this averment that this property was in joint possession of both plaintiffs and defendant, as it was the disputed property and now, after the death of their father, the petitioner-defendant have restrained them from using the same. The petitioner-defendant by way of partition deed dated 13th August, 1964, needed to prove that the entire property had been partitioned in the year 1964 only and the property which is in possession of the petitioner-defendant fell to their share, hence, the question of partition of the property falling to their share did not arise. Since, the partition deed severs the status of the petitioner-defendant, hence, the same is being used for collateral purpose and it is not required to be registered. The learned counsel took me through the proviso to Section 49 of the Registration Act, 1908, and argued that if the document was to be evidenced for any collateral transaction not required to be effected by registered instrument then, even the unregistered document could be admitted to evidence. He has placed reliance on the judgments of Hon'ble Apex Court delivered in the cases of Hriday Narain Choudhary versus Shyam Kishore Singh and Others reported in AIR 2002 Supreme Court 2526; S. Kaladevi versus V.R. Somasundaram and Others reported in AIR 2010 Supreme Court 1654; and K.G. Shivalingappa (D) by L.Rs. and Others versus G.S. Eswarappa and Others reported in AIR 2004 Supreme Court 4130.
7. Learned counsel for the petitioner finally submitted that the learned trial court committed a grave error in not admitting the partition deed to evidence merely for want of registration, hence, the impugned order deserves to be set aside.
8. Econcerso, the learned counsel for the respondents-plaintiffs defended the impugned order and stated the same to be just and proper. He further contended that the respondents-plaintiffs have filed a suit for partition and in a suit for partition, if any document is filed, the same can be admitted to evidence only if it is registered under the provisions of Registration Act, 1908. There is only one exception to this fact that the document need not be registered if it is filed in evidence in a suit for specific performance of contract. Learned counsel has cited the judgment of Hon'ble Apex Court delivered in the case of Avinash Kumar Chauhan versus Vijay Krishna Mishra reported in AIR 2009 Supreme Court 1489, in support thereof.
9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the partition deed dated 13th August, 1964 is found to have been scribbled about 45 years back. As per the argument put forth by the learned counsel for the petitioner-defendant, the document speaks of partition of the entire property, which took place between ancestors of the plaintiffs and defendant, as they all were the members of one family. It is true that in a suit for partition, if any document is produced in evidence and it purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, need to be necessarily registered. Unless such a document is registered, the same cannot be admitted to evidence. The said document is undeniably a partition deed, but the respondents-plaintiffs have came out with a case that the property which has been in their possession, was partitioned and fell to their share but the property which has been in occupation and possession of the petitioner-defendant was the disputed property and remained in joint property pool. Hence, that property was to be partitioned. On the contrary, the petitioner-defendant has come with a case that the entire property had been partitioned way back on 13th August, 1964 in the presence of Kalyan Sahai and afore-stated witnesses and the property which is in possession of the petitioner-defendant fell to his share, hence, the said property can easily be severed from the property which has been in possession and occupation of respondents-plaintiffs.
10. In the case of K.G. Shivalingappa (supra) the trial court by its judgment and decree dated 22nd September, 1979, dismissed the suit and accepted the case of defendants appellants to the effect that there was a partition in the year 1916 and, as such, the plaintiffs respondents were not entitled to seek division of properties. The first Appellate Court rejected the appeal and observed that the unregistered document (partition deed) Ex.D-101 could be relied upon to establish the severance of status in the joint family. The High Court admitted the second appeal on the following substantial question of law :
“whether the courts below were justified in holding that Ex.D-101 is admissible as a deed of partition, without its being registered.”
11. The High Court held that Ex.D-101 could not be received in evidence to evidence the partition, as it was not duly registered under the Registration Act, but the Hon'ble Supreme Court observed that the document Ex.D-101 though unregistered could be relied upon to establish the severance of the status in the joint family, the Hon'ble Apex Court has held thus:-
“The first appellate court came to the firm finding of fact that there was a prior partition of the joint family property amongst the three branches of Shivalingappa-(III), Rangappa and Mahadevappa. The document Exh.D-101 though unregistered could be relied upon to establish the severance of status in the joint family. The parties were having separate possession of the properties over several decades and were enjoyment of the properties that had fallen to the shares of three branches by their respective owners. The branches of Mahadevappa and Rangappa were cultivating equal portions by paying taxes and they had also divided the house which had come to their shares and received compensation which was distributed by them amongst themselves to the exclusion of the branch of Shivalingappa-(II), thus, evidencing the fact that the properties were partitioned and the respective branches were enjoying the properties and its usufruct separately. The three branches had been disposing of the properties which had fallen to their shares and had purchased separate properties. The Khata entries also indicated that the properties were standing in their names separately. The learned single Judge has not adverted to or set aside any of the findings recorded by the first appellate Court. The learned single Judge has clearly fell in error in reversing the judgment without disturbing any of the findings referred to above.”
12. In the case of S. Kaladevi (supra), the Hon'ble Apex Court culled out the following principles:-
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.”
13. Now, adverting to the facts of the instant case, it is revealed that the facts of the case of K.G. Shivalingappa (supra) are similar to the facts of the case at hand. In the instant case also, partition of the entire property had taken place vide written partition deed dated 13th August, 1964, but the plaintiff-respondent came out with the case that the property i.e. six shops were not the part of the partition and they being disputed, kept in joint family property pool, but the petitioner-defendant rebutted this fact and emphasized that the partition had taken place of the entire joint family property and the property, which fell to the share of the petitioner-defendant can be proved by the partition deed, albeit, unregistered and the same can be relied upon to establish the severance of the status in the joint family. Even proviso to Section 49 of the Registration Act, does not envisage the document to be registered if it is being used for collateral purpose.
14. The principle culled out by the Hon'ble Apex Court in the case of S.Kaladevi (supra) also permits such unregistered document, which is used as an evidence of collateral purpose as directed under the proviso to section 49 of Registration Act. Thus, in view of the judgment of Hon'ble Apex Court rendered in the case of K.G. Shivalingappa (supra) it can safely be inferred that the partition deed, though unregistered, can be relied upon in the facts and circumstances of the case to establish the severance of the status in the joint family and the document in question can be admitted to evidence. The learned trial court is found to have erred in disallowing the petitioner-defendant to take the said partition deed on record and not permitting him to mark exhibit thereon. The impugned order is found to be contrary to the law laid down by the Hon'ble Apex Court in the aforesaid judgment of K.G. Shivalingappa (supra). The impugned judgment, thus, can safely be said to be unjust and improper and suffers from grave infirmity and the same requires to be interfered with.
15. For the reasons stated above, the writ petition succeeds and the impugned order dated 4th May, 2011, stands set aside.
16. Consequent upon the disposal of the writ petition, the stay application does not survive and the same also stands disposed of, accordingly.