Document Of Partition Which Provides For Effectuating Division Of Properties In Future Is Not Compulsorily Registrable: Supreme Court

A document of partition which provides for effectuating a division of properties in future is not compulsorily registrable under Section 17 of the Registration Act, the Supreme Court has observed.

The bench comprising of Justices L. Nageswara Rao, BR Gavai and BV Nagarathna observed that a document which does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, does not require registration and is accordingly admissible in evidence.

In this case, the Trial Court dismissed a suit filed by the ­plaintiff by holding that there was a prior partition between the parties in the year 1964 and the instant suit for partition and separate possession was not maintainable. This judgment was affirmed by the High Court.

In appeal, one of the contentions raised by the plaintiff-appellant was that the so called partition of the suit schedule properties in the year 1964 was as per an award which was not registered as per section 17 (1) (e) of the Registration Act. Therefore, in the absence of registration of the arbitration award effecting the partition between members of the family, the award does not have any validity in the eye of law and hence it is not binding on the parties, it was contended. The other side (defendants) contended that registration of the arbitral award in the instant case as such is not a mandatory requirement. According to them, t so long as the parties are not allotted shares pertaining to specific assets under a partition deed such a document does not create any right, title or interest in any specific property as such

To address these rival contentions,the bench perused the award. The court noted that the award is in the form of a resolution and there was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement.  

"23.....The said document which has been styled as an award is, in our view, only a memorandum of understanding/family arrangement to be acted upon in future. Hence, in our considered view, the said document did not create rights in specific properties or assets of the family, in favour of specific persons. Therefore, the same did not require registration under section 17 (1) (e) of the Act. The said document was in the nature of a document envisaged under section 17 (2) (v) of the Act"

"24. Having regard to the aforesaid provisions of law it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17 (2) (v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17 (2) (v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence"

In this case, there was a  finding of the first appellate court in A.S. No. 37 of 1993 that the suit properties were partitioned in the year 1964. Therefore, another issue that arose in this case was whether the said finding is  binding on the parties and whether a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable?

"The partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon, a fresh suit for partition and separate possession of the suit properties was not at all maintainable. The principle of res judicata squarely applies in the present case.", the court said while dismissing the appeal.

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