Friday, 5 May 2017

Whether unregistered deed of acknowledgment of partition between brothers is admissible in evidence?

During course of argument, petitioner also relied on
a decision of the Hon’ble Apex Court in the case of Kale and others v,
Deputy Director of Consolidation and others reported in A.I.R. 1976
SC 807. In Paragraph-10 of the above judgment, the Hon’ble Apex Court
held as follows:
“10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form, the
matter may be reduced into the form of the following
propositions:
 (1) The family settlement must be a bona fide one so
as to resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family; 5
 (2) The said settlement must be voluntary and should
not be induced by fraud, coercion or undue influence:
 (3) The family arrangement may be even oral in
which case no registration is necessary;
 (4) It is well-settled that registration would be
necessary only if the terms of the family arrangement are
reduced into writing. Here also, a distinction should be made
between a document containing the terms and recitals of a
family arrangement made under the document and a mere
memorandum pre pared after the family arrangement had
already been made either for the purpose of the record or for
in formation of the court for making necessary mutation. In
such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore
does not fall within the mischief of s. 17(2) of the Registration
Act and is, therefore, not compulsorily registrable;
 (5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property 'It which is
acknowledged by the parties to the settlement. Even if one of
the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or
titles in favour of such a person and acknowledges him to be
the sole 9 owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the Courts will
find no difficulty in giving assent to the same; 
 (6) Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.”
6. Considering the submission of the learned counsel for the
petitioner, for the factual back drop of this case and after looking to the
decision from paragraph-10 of the Hon’ble Apex Court referred to
hereinabove, this Court finds there has been wrong appreciation on the
question of acceptance of unregistered partition deed by the revisional
authority resulting thereby there is an illegal and erroneous judgment. ORISSA HIGH COURT: CUTTACK
 O.J.C.No.1168 of 1997


Dharanidhar Lenka 
v
Gajendranath Lenka 

Date of Judgment: 25.01.2017
P R E S E N T:
 MR. JUSTICE BISWANATH RATH

Citation:AIR 2017 Orissa 50



Biswanath Rath,J. This writ petition is filed assailing the orders passed by the
competent authorities in exercise of power under the O.C.H. & P.F.L. Act,
1972 vide Annexures-10 and 11.2
2. Short background involved in the case is that the disputed property
under Plot No.697 in the 1930 Settlement record-of-right measuring
Ac.0.28 decimals is the ancestral property. In 1986 settlement record-ofright
Ac.0.17 decimals of land remained in Khata No.35, Plot No.682 and
balance Ac.0. 11 decimals of land remained in Plot No.682/985 under
Khata No.35 corresponding to Consolidation L.R. Plot No.682 measuring
Ac.0.140 decimals. The petitioner and opposite party no.1, who are two
brothers are sons of Shyam Sundar Lenka, who had also other two sons,
namely, Krupasindhu and Jagabandhu. Petitioner all through claimed that
after the death of Shyam Sundar Lenka, an unregistered deed of
acknowledgement giving a previous partition was executed between four
brothers and in the said partition, western Ac.0.14 decimals fell to the share
of the petitioner and the eastern Ac.0.14 decimals fell to the share of the
opposite party no.1. It is contended that after this development, opposite
party no.1 sold several properties and the petitioner established the same
by annexing some of the registered sale deed as Annexures-2, 3 and 4.
1986 record-of-right was prepared separately in accordance with the
partition, though some record-of-right stood recorded jointly but with
separate note of possession in accordance with the above partition. It is
contended that though the petitioner was in possession of Ac.0.140
decimals of land but in respect of Khata No.35, note of possession was
recorded indicating opposite party no.1 in possession of Plot No.682,
measuring Ac.0.17 decimals whereas petitioner shown to be in possession
of Plot No.682/985 measuring Ac.0.11 decimals. But as a matter of fact
the petitioner was in possession of Plot No.682 whereas opposite party
no.1 was in possession of Plot No.682/985 and area of both the plots 3
remained same as clearly appearing at Annexure-6. Petitioner claimed
that he filed Objection Case No.292 of 1991 for correction of Hal record-ofright
during consolidation operation. Inquiry was conducted by Amin
evidencing possession of the petitioner in respect of Plot No.682 as a
consequence of which claim of the petitioner was allowed by the
Consolidation Officer. Opposite party no.1 preferred appeal. Appellate
authority modified the order recording the land in respect of the petitioner
vide L.R. Plot No.682 /985 in respect of Ac.0.125 decimals. Being
aggrieved by this reduced recording of land in favour of the respective
parties, petitioner preferred Consolidation Revision No.738 of 1994.
Learned Commissioner, Consolidation dismissed the revision after holding
that the oral partition cannot be accepted in absence of the registration of
the same.

3. In assailing the revisional order, Sri D.P.Mohanty, learned counsel
contended that the observation of the revisional authority that the
unregistered partition deed of 1972 cannot be accepted as against law.
The revisional authority has failed in appreciating the respective
possession involving acceptance of unregistered partition deed and
thereby arrived at the wrong and erroneous judgment. Relying on a
decision in the case of Kale and others v, Deputy Director of
Consolidation and others, reported in A.I.R. 1976 SC 807, Sri D.P.
Mohanty, learned counsel appearing for the petitioner contended that the
petitioner’s stand gets the support of this judgment and under the
circumstances, the revisional order should be set aside. 4
4. There is no appearance on behalf of the private opposite party no.1.
Sri Sahoo, learned State Counsel justifying the impugned revisional order
contended that for the reasons assigned therein, there is no scope for
interfering in the impugned order and the writ petition ought to be
dismissed.
5. Considering the rival contention of the parties, this Court finds the
petitioner has all through his case claiming right over Ac.0.140 decimals of
land over Plot No.682 taking a positive plea all through that his claim is
based on an unregistered partition between the parties. In attending to a
question regarding acceptability of an unregistered partition deed, the
petitioner while advancing his argument regarding acceptance of such
document, relied on a decision reported in A.I.R. 1957 (Madras) 472 and
AIR 1966 (Patna) 179. During course of argument, petitioner also relied on
a decision of the Hon’ble Apex Court in the case of Kale and others v,
Deputy Director of Consolidation and others reported in A.I.R. 1976
SC 807. In Paragraph-10 of the above judgment, the Hon’ble Apex Court
held as follows:
“10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form, the
matter may be reduced into the form of the following
propositions:
 (1) The family settlement must be a bona fide one so
as to resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family; 5
 (2) The said settlement must be voluntary and should
not be induced by fraud, coercion or undue influence:
 (3) The family arrangement may be even oral in
which case no registration is necessary;
 (4) It is well-settled that registration would be
necessary only if the terms of the family arrangement are
reduced into writing. Here also, a distinction should be made
between a document containing the terms and recitals of a
family arrangement made under the document and a mere
memorandum pre pared after the family arrangement had
already been made either for the purpose of the record or for
in formation of the court for making necessary mutation. In
such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore
does not fall within the mischief of s. 17(2) of the Registration
Act and is, therefore, not compulsorily registrable;
 (5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property 'It which is
acknowledged by the parties to the settlement. Even if one of
the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or
titles in favour of such a person and acknowledges him to be
the sole 9 owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the Courts will
find no difficulty in giving assent to the same; 6
 (6) Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.”
6. Considering the submission of the learned counsel for the
petitioner, for the factual back drop of this case and after looking to the
decision from paragraph-10 of the Hon’ble Apex Court referred to
hereinabove, this Court finds there has been wrong appreciation on the
question of acceptance of unregistered partition deed by the revisional
authority resulting thereby there is an illegal and erroneous judgment.
7. Under the circumstance while interfering in the Revisional order
under Annexure-11, this Court sets aside the same and remits the matter
back to the Revisional authority to re-hear the matter and take a decision
considering the unregistered partition deed as a valid document for the
partition and pass a fresh order in the revision within a period of four
months but however giving opportunity of hearing to all concerned.
8. In the result, the writ petition stands allowed but with an order of
remand. Under the circumstance, there is no order as to cost.
 ………………………………
 Biswanath Rath,J.
Orissa High Court, Cuttack
The 25th January, 2017/sks

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