In the case of Digambar Adhar Patil v. Devram Girdhar Patil
(died) and another reported in AIR 1995 Supreme Court 1728
wherein it has been held that entries in records of rights maintained in
official course of business is relevant piece of evidence.
On the contrary, Mr. Ganesh Panda, learned Counsel for the
opposite parties has submitted a decision in case of Tek Bahadur
Bhujil v. Debi Singh Bhujil & Ors. reported in AIR 1966 Supreme
Court 292 wherein it is observed in Paragraph 12 thus—
“12. Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what
had been agreed upon between the parties. The memorandum
need not be prepared for the purpose of being used as a
document on which future title of the parties be founded. It is
usually prepared as a record of what had been agreed upon so
that there be no hazy notions about it in future. It is only whenthe 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.”
Mr. Panda referred to a decision in case of Tarjen Mondal Vs.
Prithiraj Mondal reported in 2011(5) CHN (Cal.) 102, contending that
an unregistered document which is compulsorily registrable cannot be
admitted in evidence adverting to paragraph 14 which reads as under—
“14. Although the deed of family settlement/partition does not
require any registration but once the same is reproduced in
writing then such document requires registration [see. Rajangam
Ier vs. Rajangam Ier, 1923 (69) Indian Cases : Nami Bai vs. Gita
Bai, AIR 1958 SC 706: Roshan vs. Zila AIR 1988 SC 881]”
I have respectfully gone through the above cited decisions by the
rival parties and this Court is of the view that marking of the document
is not a conclusive proof of the contents of the same and is required to
be proved during the trial.
Mr. Das has emphatically submitted that the sketch map
prepared on 28.11.1988 is an acknowledgment of the amicable partition
held long before C.S. operation. If this submission is taken into
consideration in terms of the amended plaint then the said fact can be
enquired into with the help of successive record of right in respect of the
suit properties to find as to whether in terms of amicable partition theproperties amongst the co-sharers were recorded in the C.S. Record of
Right, R.S. Record of Right and L.R. Record of Right and thus, it can be
decided as to whether the sketch map prepared by Amin duly signed by
the persons were by and between the parties to the suit or not.
Having considered the sketch map being produced before the
learned Trial Court pursuant to the amendment of the plaint on that
score, sketch map in my considered opinion is an acknowledgement
alleged to be in respect of amicable partition which is not document
required to be compulsorily registered under Section 17 of the
Registration Act. Dwelling on the principles in case of Kale & Ors. vs.
Deputy Director of Consolidation & Ors. and Bipin Shantilal
Panchal (Supra), this Court is pleased to direct the learned Trial Court
to mark the sketch map as collateral document in question and to
enquire into the factum of amicable partition long before C.S. operation
in the context of the record-of-rights in respect of the suit properties,
ergo, the order impugned is set aside.
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon’ble Justice Shivakant Prasad
C.O. 142 of 2013
Harapada Mondal & Ors.
Vs.
Nishikanta Mondal & Ors.
Judgment On : 17.06.2016
Citation:AIR 2016 Cal 340
Challenge in this application is against the Order being No. 59
dated 04.07.2012 passed by the learned Civil Judge (Junior Division),
1st Court, Diamond Harbour arising out of Title Suit No. 52 of 2006.
Chronological event leading to the instant case is that the
petitioners as plaintiffs instituted a Title Suit being No. 52 of 2006
against the opposite parties as defendants in the learned Court of Civil
Judge (Junior Division), 1st Court, Diamond Harbour for declaration of
title along with a prayer for injunction in respect of 19 sataks of land
under R.S. Khatian No. 770, L.R. Khatian 818/1530 in Plot Nos. 2106
and 2107 of Mouza Rajarampur within P.S. Falta, District-24-Parganas
(South).The case of the plaintiffs/petitioners as stated in the plaint in
short is that the case plots along with other plots in suit Khatian
belonged to plaintiffs and other co-sharers. Long before R.S. settlement
operation there was an amicable partition in between the co-sharers for
proper enjoyment and by virtue of such partition done amicably
plaintiffs get Plot No. 2106, 2107 bastu 11 sataks and are in exclusive
physical possession. The name of the plaintiffs have been duly recorded
in the Record of Rights and plaintiffs raised their bastu and converted
Plot No. 2106 as tank.
It is stated that the plaintiffs filed Title Suit No. 1 of 2004 against
one Naren Mondal (since deceased) and since legal heirs of Naren
Mondal were not made parties, defendants No. 1 to 4 threatened the
plaintiffs from forcible dispossession of the plaintiffs for which the
plaintiffs were compelled to file the instant suit.
Specific case of the plaintiffs/petitioners is that by virtue of such
amicable partition plaintiffs got Plot No. 2106 measuring about 08
sataks, Plot No. 2107 measuring about 11 sataks and the defendants
got Plot No. 2108 measuring about 07 sataks Plot No. 2109 measuring
about 07 sataks. Non-suit plots i.e. in 2110, 2111 and 2112 plaintiffs
and defendants got in equal share. By partition plaintiffs got 29 sataks,
defendant got 24 sataks and the parties according to their wish and
desire got the same partitioned with the help of an Amin and the parties
also signed in the sketch map drafted by Amin. This fact was not
averred in the original plaint and the plaint was amended to that effecton an application. Defendants appeared in the suit and were contesting
the same by filing a written statement denying all material particulars
made in the plaint.
The suit proceeded and P.W.-1 was examined and during trial
petitioners submitted the sketch map of Amin for marking the same as
an exhibit at that stage the defendants filed an application dated
01.02.2011 contesting the same. Petitioners however filed a written
objection to the aforesaid application dated 01.02.2011. The application
dated 01.02.2011 filed by the defendants came up for hearing before the
learned Judge on 04.7.2012 who by his Order No. 59 allowed the same
and directed that the sketch map dated 28.11.1988 as filed by the
plaintiffs will not be marked exhibit in the case.
Being aggrieved by the said order the petitioners preferred this
revision, inter alia, on the grounds that the learned Judge failed to
consider the settled proposition that a sketch map prepared by an Amin
is not to be registered and the same is a document of previous partition
amongst the co-sharers and also failed to appreciate the plaint’s case
that partition amicably has been made long before R.S. settlement
operation in between the parties.
It is submitted on behalf of the petitioners that the sketch map is
a Memorandum of Partition and as such there is no requirement of
registration of the said document and as such the document is required
to be marked as an exhibit.Accordingly, the petitioners have prayed for setting aside order
impugned as bad in law and in fact.
Mr. Sandip Das learned Counsel for the petitioners/plaintiffs
submitted a decision in case of K. B. Saha and Sons Private Limited
Vs. Development Consultant Limited reported in (2008) 8 Supreme
Court Cases 564, wherein it has been observed in Paragraph 34 thus —
“34. From the principles laid down in the various decisions of
the Supreme Court and the High Courts, it is evident that : (i) a
document required to be registered, if unregistered, is not
admissible in evidence under Section 49 of the Registration Act,
(ii) such an unregistered document can however be used as an
evidence for collateral purpose as provided in Section 49 proviso
of the Registration Act, (iii) a collateral transaction must be
independent of, or divisible from, the transaction to effect which
the law required registration, (iv) 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, and (v) 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.”
Case of Kale & Ors. vs. Deputy Director of Consolidation &
Ors. has also been referred in support of petitioners case contending
that family arrangements is an agreement between members of the samefamily, intended to be generally and reasonably for the benefit of the
family.
It has been observed in Paragraph 10 of the cited decision thus—
“10. In other words to put the binding effect and the essentials of
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;
(2) The said settlement must be voluntary and should not be
induced by fraud coercion or undue influence;
(3) The family arrangements 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 a mere memorandum prepared
after the family arrangement had already been made either
for the purpose of the record or for information of the court
for making necessary mutation. In such a case the
memorandum itself does not create or extinguish any rights
in immoveable properties and therefore does not fall within
the mischief of Section 17(2) (sic) (Sec. 17(1) (b)?) 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 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 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.”
I have respectfully gone through the guiding principles indicative
above which principles were enunciated and adroitly adumbrated in a
long course of decisions of the Hon’ble Apex Court as also of the Privy
Council and other High Courts. It has been held that the compromise
was not required to be registered. Even if the family arrangement was
not registered it could be used for a collateral purpose, namely, for the
purpose of showing the nature and character of possession of the
parties in pursuance of the family settlement.
Held, further that assuming, that the said document was
compulsorily registrable the family arrangement being binding on the
parties to it would operate as an estoppels by preventing the partiesafter having taken advantage under the arrangement to resile from the
same or try to revoke it.
Mr. Das has also relied on a decision in case of Bipin Shantilal
Panchal v. State of Gujrat and Another reported in (2001) 3
Supreme Court Cases 1, wherein it has been held thus—
“It is an archaic practice that during the evidence collecting
stage, whenever any objection is raised regarding admissibility of any
material in evidence the court does not proceed further without passing
order on such objection. Such practices when realized through the course
of long period to be hindrances which impede steady and swift progress
of trial proceedings must be recast or remolded to give way for better
substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence-taking stage
regarding the admissibility of any material or item of oral evidence the
trial court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at the
last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable the Judge or Magistrate can
keep such evidence excluded from consideration. There is no illegality
in adopting such a course.
However, if the objection relates to deficiency of stamp duty of a
document the court has to decide the objection before proceeding
further. For all other objections the procedure suggested above can be
followed.
The above procedure, if followed, will have two advantages. First
is that the time in the trial court, during evidence-taking stage, wouldnot be wasted on account of raising such objections and the court can
continue to examine the witnesses. The witnesses need not wait for long
hours, if not days. Second is that the superior court, when the same
objection is recanvassed and reconsidered in appeal or revision against
the final judgment of the trial court, can determine the correctness of
the view taken by the trial court regarding that objection without
bothering to remit the case to the trial court again for fresh disposal.
This measure would not cause any prejudice to the parties to the
litigation and would not add to their misery or expenses.
Therefore, the above is made as procedure to be followed by the
trial courts whenever an objection is raised regarding the admissibility
of any material or any item of oral evidence.”
In the case of Digambar Adhar Patil v. Devram Girdhar Patil
(died) and another reported in AIR 1995 Supreme Court 1728
wherein it has been held that entries in records of rights maintained in
official course of business is relevant piece of evidence.
On the contrary, Mr. Ganesh Panda, learned Counsel for the
opposite parties has submitted a decision in case of Tek Bahadur
Bhujil v. Debi Singh Bhujil & Ors. reported in AIR 1966 Supreme
Court 292 wherein it is observed in Paragraph 12 thus—
“12. Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what
had been agreed upon between the parties. The memorandum
need not be prepared for the purpose of being used as a
document on which future title of the parties be founded. It is
usually prepared as a record of what had been agreed upon so
that there be no hazy notions about it in future. It is only whenthe 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.”
Mr. Panda referred to a decision in case of Tarjen Mondal Vs.
Prithiraj Mondal reported in 2011(5) CHN (Cal.) 102, contending that
an unregistered document which is compulsorily registrable cannot be
admitted in evidence adverting to paragraph 14 which reads as under—
“14. Although the deed of family settlement/partition does not
require any registration but once the same is reproduced in
writing then such document requires registration [see. Rajangam
Ier vs. Rajangam Ier, 1923 (69) Indian Cases : Nami Bai vs. Gita
Bai, AIR 1958 SC 706: Roshan vs. Zila AIR 1988 SC 881]”
I have respectfully gone through the above cited decisions by the
rival parties and this Court is of the view that marking of the document
is not a conclusive proof of the contents of the same and is required to
be proved during the trial.
Mr. Das has emphatically submitted that the sketch map
prepared on 28.11.1988 is an acknowledgment of the amicable partition
held long before C.S. operation. If this submission is taken into
consideration in terms of the amended plaint then the said fact can be
enquired into with the help of successive record of right in respect of the
suit properties to find as to whether in terms of amicable partition theproperties amongst the co-sharers were recorded in the C.S. Record of
Right, R.S. Record of Right and L.R. Record of Right and thus, it can be
decided as to whether the sketch map prepared by Amin duly signed by
the persons were by and between the parties to the suit or not.
Having considered the sketch map being produced before the
learned Trial Court pursuant to the amendment of the plaint on that
score, sketch map in my considered opinion is an acknowledgement
alleged to be in respect of amicable partition which is not document
required to be compulsorily registered under Section 17 of the
Registration Act. Dwelling on the principles in case of Kale & Ors. vs.
Deputy Director of Consolidation & Ors. and Bipin Shantilal
Panchal (Supra), this Court is pleased to direct the learned Trial Court
to mark the sketch map as collateral document in question and to
enquire into the factum of amicable partition long before C.S. operation
in the context of the record-of-rights in respect of the suit properties,
ergo, the order impugned is set aside.
In the result, the C.O. No. 142 of 2013 is allowed.
Urgent certified photocopy of this Judgment and order, if applied
for, be supplied to the parties upon compliance with all requisite
formalities.
(SHIVAKANT PRASAD, J.)
Print Page
(died) and another reported in AIR 1995 Supreme Court 1728
wherein it has been held that entries in records of rights maintained in
official course of business is relevant piece of evidence.
On the contrary, Mr. Ganesh Panda, learned Counsel for the
opposite parties has submitted a decision in case of Tek Bahadur
Bhujil v. Debi Singh Bhujil & Ors. reported in AIR 1966 Supreme
Court 292 wherein it is observed in Paragraph 12 thus—
“12. Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what
had been agreed upon between the parties. The memorandum
need not be prepared for the purpose of being used as a
document on which future title of the parties be founded. It is
usually prepared as a record of what had been agreed upon so
that there be no hazy notions about it in future. It is only whenthe 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.”
Mr. Panda referred to a decision in case of Tarjen Mondal Vs.
Prithiraj Mondal reported in 2011(5) CHN (Cal.) 102, contending that
an unregistered document which is compulsorily registrable cannot be
admitted in evidence adverting to paragraph 14 which reads as under—
“14. Although the deed of family settlement/partition does not
require any registration but once the same is reproduced in
writing then such document requires registration [see. Rajangam
Ier vs. Rajangam Ier, 1923 (69) Indian Cases : Nami Bai vs. Gita
Bai, AIR 1958 SC 706: Roshan vs. Zila AIR 1988 SC 881]”
I have respectfully gone through the above cited decisions by the
rival parties and this Court is of the view that marking of the document
is not a conclusive proof of the contents of the same and is required to
be proved during the trial.
Mr. Das has emphatically submitted that the sketch map
prepared on 28.11.1988 is an acknowledgment of the amicable partition
held long before C.S. operation. If this submission is taken into
consideration in terms of the amended plaint then the said fact can be
enquired into with the help of successive record of right in respect of the
suit properties to find as to whether in terms of amicable partition theproperties amongst the co-sharers were recorded in the C.S. Record of
Right, R.S. Record of Right and L.R. Record of Right and thus, it can be
decided as to whether the sketch map prepared by Amin duly signed by
the persons were by and between the parties to the suit or not.
Having considered the sketch map being produced before the
learned Trial Court pursuant to the amendment of the plaint on that
score, sketch map in my considered opinion is an acknowledgement
alleged to be in respect of amicable partition which is not document
required to be compulsorily registered under Section 17 of the
Registration Act. Dwelling on the principles in case of Kale & Ors. vs.
Deputy Director of Consolidation & Ors. and Bipin Shantilal
Panchal (Supra), this Court is pleased to direct the learned Trial Court
to mark the sketch map as collateral document in question and to
enquire into the factum of amicable partition long before C.S. operation
in the context of the record-of-rights in respect of the suit properties,
ergo, the order impugned is set aside.
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon’ble Justice Shivakant Prasad
C.O. 142 of 2013
Harapada Mondal & Ors.
Vs.
Nishikanta Mondal & Ors.
Judgment On : 17.06.2016
Citation:AIR 2016 Cal 340
Challenge in this application is against the Order being No. 59
dated 04.07.2012 passed by the learned Civil Judge (Junior Division),
1st Court, Diamond Harbour arising out of Title Suit No. 52 of 2006.
Chronological event leading to the instant case is that the
petitioners as plaintiffs instituted a Title Suit being No. 52 of 2006
against the opposite parties as defendants in the learned Court of Civil
Judge (Junior Division), 1st Court, Diamond Harbour for declaration of
title along with a prayer for injunction in respect of 19 sataks of land
under R.S. Khatian No. 770, L.R. Khatian 818/1530 in Plot Nos. 2106
and 2107 of Mouza Rajarampur within P.S. Falta, District-24-Parganas
(South).The case of the plaintiffs/petitioners as stated in the plaint in
short is that the case plots along with other plots in suit Khatian
belonged to plaintiffs and other co-sharers. Long before R.S. settlement
operation there was an amicable partition in between the co-sharers for
proper enjoyment and by virtue of such partition done amicably
plaintiffs get Plot No. 2106, 2107 bastu 11 sataks and are in exclusive
physical possession. The name of the plaintiffs have been duly recorded
in the Record of Rights and plaintiffs raised their bastu and converted
Plot No. 2106 as tank.
It is stated that the plaintiffs filed Title Suit No. 1 of 2004 against
one Naren Mondal (since deceased) and since legal heirs of Naren
Mondal were not made parties, defendants No. 1 to 4 threatened the
plaintiffs from forcible dispossession of the plaintiffs for which the
plaintiffs were compelled to file the instant suit.
Specific case of the plaintiffs/petitioners is that by virtue of such
amicable partition plaintiffs got Plot No. 2106 measuring about 08
sataks, Plot No. 2107 measuring about 11 sataks and the defendants
got Plot No. 2108 measuring about 07 sataks Plot No. 2109 measuring
about 07 sataks. Non-suit plots i.e. in 2110, 2111 and 2112 plaintiffs
and defendants got in equal share. By partition plaintiffs got 29 sataks,
defendant got 24 sataks and the parties according to their wish and
desire got the same partitioned with the help of an Amin and the parties
also signed in the sketch map drafted by Amin. This fact was not
averred in the original plaint and the plaint was amended to that effecton an application. Defendants appeared in the suit and were contesting
the same by filing a written statement denying all material particulars
made in the plaint.
The suit proceeded and P.W.-1 was examined and during trial
petitioners submitted the sketch map of Amin for marking the same as
an exhibit at that stage the defendants filed an application dated
01.02.2011 contesting the same. Petitioners however filed a written
objection to the aforesaid application dated 01.02.2011. The application
dated 01.02.2011 filed by the defendants came up for hearing before the
learned Judge on 04.7.2012 who by his Order No. 59 allowed the same
and directed that the sketch map dated 28.11.1988 as filed by the
plaintiffs will not be marked exhibit in the case.
Being aggrieved by the said order the petitioners preferred this
revision, inter alia, on the grounds that the learned Judge failed to
consider the settled proposition that a sketch map prepared by an Amin
is not to be registered and the same is a document of previous partition
amongst the co-sharers and also failed to appreciate the plaint’s case
that partition amicably has been made long before R.S. settlement
operation in between the parties.
It is submitted on behalf of the petitioners that the sketch map is
a Memorandum of Partition and as such there is no requirement of
registration of the said document and as such the document is required
to be marked as an exhibit.Accordingly, the petitioners have prayed for setting aside order
impugned as bad in law and in fact.
Mr. Sandip Das learned Counsel for the petitioners/plaintiffs
submitted a decision in case of K. B. Saha and Sons Private Limited
Vs. Development Consultant Limited reported in (2008) 8 Supreme
Court Cases 564, wherein it has been observed in Paragraph 34 thus —
“34. From the principles laid down in the various decisions of
the Supreme Court and the High Courts, it is evident that : (i) a
document required to be registered, if unregistered, is not
admissible in evidence under Section 49 of the Registration Act,
(ii) such an unregistered document can however be used as an
evidence for collateral purpose as provided in Section 49 proviso
of the Registration Act, (iii) a collateral transaction must be
independent of, or divisible from, the transaction to effect which
the law required registration, (iv) 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, and (v) 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.”
Case of Kale & Ors. vs. Deputy Director of Consolidation &
Ors. has also been referred in support of petitioners case contending
that family arrangements is an agreement between members of the samefamily, intended to be generally and reasonably for the benefit of the
family.
It has been observed in Paragraph 10 of the cited decision thus—
“10. In other words to put the binding effect and the essentials of
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;
(2) The said settlement must be voluntary and should not be
induced by fraud coercion or undue influence;
(3) The family arrangements 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 a mere memorandum prepared
after the family arrangement had already been made either
for the purpose of the record or for information of the court
for making necessary mutation. In such a case the
memorandum itself does not create or extinguish any rights
in immoveable properties and therefore does not fall within
the mischief of Section 17(2) (sic) (Sec. 17(1) (b)?) 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 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 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.”
I have respectfully gone through the guiding principles indicative
above which principles were enunciated and adroitly adumbrated in a
long course of decisions of the Hon’ble Apex Court as also of the Privy
Council and other High Courts. It has been held that the compromise
was not required to be registered. Even if the family arrangement was
not registered it could be used for a collateral purpose, namely, for the
purpose of showing the nature and character of possession of the
parties in pursuance of the family settlement.
Held, further that assuming, that the said document was
compulsorily registrable the family arrangement being binding on the
parties to it would operate as an estoppels by preventing the partiesafter having taken advantage under the arrangement to resile from the
same or try to revoke it.
Mr. Das has also relied on a decision in case of Bipin Shantilal
Panchal v. State of Gujrat and Another reported in (2001) 3
Supreme Court Cases 1, wherein it has been held thus—
“It is an archaic practice that during the evidence collecting
stage, whenever any objection is raised regarding admissibility of any
material in evidence the court does not proceed further without passing
order on such objection. Such practices when realized through the course
of long period to be hindrances which impede steady and swift progress
of trial proceedings must be recast or remolded to give way for better
substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence-taking stage
regarding the admissibility of any material or item of oral evidence the
trial court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at the
last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable the Judge or Magistrate can
keep such evidence excluded from consideration. There is no illegality
in adopting such a course.
However, if the objection relates to deficiency of stamp duty of a
document the court has to decide the objection before proceeding
further. For all other objections the procedure suggested above can be
followed.
The above procedure, if followed, will have two advantages. First
is that the time in the trial court, during evidence-taking stage, wouldnot be wasted on account of raising such objections and the court can
continue to examine the witnesses. The witnesses need not wait for long
hours, if not days. Second is that the superior court, when the same
objection is recanvassed and reconsidered in appeal or revision against
the final judgment of the trial court, can determine the correctness of
the view taken by the trial court regarding that objection without
bothering to remit the case to the trial court again for fresh disposal.
This measure would not cause any prejudice to the parties to the
litigation and would not add to their misery or expenses.
Therefore, the above is made as procedure to be followed by the
trial courts whenever an objection is raised regarding the admissibility
of any material or any item of oral evidence.”
In the case of Digambar Adhar Patil v. Devram Girdhar Patil
(died) and another reported in AIR 1995 Supreme Court 1728
wherein it has been held that entries in records of rights maintained in
official course of business is relevant piece of evidence.
On the contrary, Mr. Ganesh Panda, learned Counsel for the
opposite parties has submitted a decision in case of Tek Bahadur
Bhujil v. Debi Singh Bhujil & Ors. reported in AIR 1966 Supreme
Court 292 wherein it is observed in Paragraph 12 thus—
“12. Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what
had been agreed upon between the parties. The memorandum
need not be prepared for the purpose of being used as a
document on which future title of the parties be founded. It is
usually prepared as a record of what had been agreed upon so
that there be no hazy notions about it in future. It is only whenthe 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.”
Mr. Panda referred to a decision in case of Tarjen Mondal Vs.
Prithiraj Mondal reported in 2011(5) CHN (Cal.) 102, contending that
an unregistered document which is compulsorily registrable cannot be
admitted in evidence adverting to paragraph 14 which reads as under—
“14. Although the deed of family settlement/partition does not
require any registration but once the same is reproduced in
writing then such document requires registration [see. Rajangam
Ier vs. Rajangam Ier, 1923 (69) Indian Cases : Nami Bai vs. Gita
Bai, AIR 1958 SC 706: Roshan vs. Zila AIR 1988 SC 881]”
I have respectfully gone through the above cited decisions by the
rival parties and this Court is of the view that marking of the document
is not a conclusive proof of the contents of the same and is required to
be proved during the trial.
Mr. Das has emphatically submitted that the sketch map
prepared on 28.11.1988 is an acknowledgment of the amicable partition
held long before C.S. operation. If this submission is taken into
consideration in terms of the amended plaint then the said fact can be
enquired into with the help of successive record of right in respect of the
suit properties to find as to whether in terms of amicable partition theproperties amongst the co-sharers were recorded in the C.S. Record of
Right, R.S. Record of Right and L.R. Record of Right and thus, it can be
decided as to whether the sketch map prepared by Amin duly signed by
the persons were by and between the parties to the suit or not.
Having considered the sketch map being produced before the
learned Trial Court pursuant to the amendment of the plaint on that
score, sketch map in my considered opinion is an acknowledgement
alleged to be in respect of amicable partition which is not document
required to be compulsorily registered under Section 17 of the
Registration Act. Dwelling on the principles in case of Kale & Ors. vs.
Deputy Director of Consolidation & Ors. and Bipin Shantilal
Panchal (Supra), this Court is pleased to direct the learned Trial Court
to mark the sketch map as collateral document in question and to
enquire into the factum of amicable partition long before C.S. operation
in the context of the record-of-rights in respect of the suit properties,
ergo, the order impugned is set aside.
In the result, the C.O. No. 142 of 2013 is allowed.
Urgent certified photocopy of this Judgment and order, if applied
for, be supplied to the parties upon compliance with all requisite
formalities.
(SHIVAKANT PRASAD, J.)
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