JUDGMENT A.K. Banerji, J.
1. Second Appeal by the plaintiff-appellant is directed against the Judgment and decree dated 14.11.1980 passed by the VIIth Additional District Judge, Gorakhpur by which the said Court had allowed the appeal filed by the defendant and set aside the decree passed in favour of the plaintiff by the trial court.
2. The relevant facts, in brief, are that the plaintiff filed Original Suit No. 104 of 1976 against the defendant for cancellation of a gift deed dated 11.4.1969 executed by Purshottam Dass in favour of the defendant to the extent of 1/3rd share in the house in dispute. The plaintiff and the defendant are the real brothers and sons of the said Purshottam Dass, The plaintiff also sought possession over a portion of the house described in the plaint. If not found in possession, and also prayed for a decree of declaration to the effect that the plaintiff was the owner in possession of the portion of the house specified in the sketch map annexed to the plaint. The plaintiffs case was that the property in question was an ancestral property which on partition came to the share of their father Purshottani Dass who remained in possession of the same as karta of the Joint Hindu Family. The mother of the parties being dead and there having arisen some family dispute between the plaintiff and the defendant, their father made a family arrangement in the shape of partition deed on 19.7.1967 by which the disputed house was divided half and half between the plaintiff and the defendant. The father relinquished his rights in the said property but it was arranged that both the sons would be paying a sum of Rs. 35 per month to their father for his livelihood and he was given the choice to live with either of the sons. The plaintiffs case further was that this family arrangement was reduced into writing, signed by the parlies and acted upon. The plaintiff was paying Rs. 35 per month to his father and had also been put in possession of his share. There were two tenants, namely, Virendra Kishore Pal and Lal Man Prasad in portion of the plaintiff who were paying rent to him. The plaintiff had to file a suit against Virendra Klshore Pal which was decreed and the possession was obtained by the plaintiff. He had also filed Suit No. 218 of 1973 against the other tenant Lal Man Prasad and in his defence, the said tenant had taken the plea that he was a tenant on behalf of the defendant and paying rent to him. He also referred to a gift deed of the year 1969 by which Purshottani Dass had given his share to the defendant who is now the owner of 2/3rd portion of the disputed house. The plaintiff came to know of the gift deed in question for the first time when this plea was raised in defence. The suit was dismissed on the basis of the said document. Hence the present suit for the reliefs mentioned above.
3. The suit was contested by the defendant, Inter alia, on the ground that the plaintiff had no cause of action to file the same. The parties had separated during the life time of their father and a family settlement was got written but the same was not properly stamped or got registered neither was the same acted upon- Subsequently Purshottani Dass had in the year 1969 executed a gift deed in favour of the defendant who by virtue of the same had become owner of the 2/3rd portion of the disputed house and was in possession of the same. The tenant Lal Man Prasad was paying rent to the defendant and after his death the legal heirs of the said tenant had handed over possession to the defendant. The gift deed was legal and valid and was acted upon by the parties. The plaintiff was fully aware of the said gift deed, hence the suit was also barred by time.
4. The plaintiff filed replication denying the allegations made in the written statement and reiterated his stand that the family settlement was acted upon and the gift deed was absolutely Illegal and could not be enforced.
5. The trial court framed the relevant issues and on its findings on Issues No. 1, 2 and 3 held that the family settlement was binding between the parties and the gift deed executed on 11.4.1969 by Purshottam Dass in favour of the defendant regarding his share was Illegal and liable to be cancelled. It was further held that the deed dated 19.7.1967 regarding the family settlement was admissible in evidence and non-registration of the same does not make the said paper Ineffective. Consequently. Purshottam Dass had no right to execute the gift deed. It further held that the suit was not barred by time as the' defendant had failed to establish that the plaintiff had knowledge of the gift deed from the very day it was executed. Mainly on these findings, the trial court decreed the suit for cancellation of the gift deed dated 11.4,1969 and also declared that the plaintiff was the owner of the portion of the house mentioned in the plaint and defendant had no concern with It. Consequently, the trial court directed the defendant to deliver possession of the portion of the house in suit to the plaintiff within one month.
6. Aggrieved, the defendant filed Civil Appeal No. 18 of 1980 in the Court of the District Judge which was transferred to the Court of VIIth Additional District Judge, Gorakhpur. The appellate court allowed the defendant's appeal by holding that the family arrangement could not be treated to be a partition deed as one of the parties had not taken share in the house. However, as the family arrangement was reduced into writing and had effected property of the value of more than Rs. 100, therefore, it required registration. Since the same was not registered and, therefore, it was Inadmissible in evidence in view of Section 49 of the Registration Act. The document was also not duly stamped. On that ground also the deed of family arrangement could not be admitted in evidence. That apart, as Purshottam Dass had executed a gift deed subsequently with regards to his l/3rd share in the disputed house, consequently it could be held that the family arrangement was not acted upon and the gift deed was, therefore, valid and legal. The plaintiff has fatted to establish that the same was tainted by any fraud or misrepresentation, hence also the same could not be cancelled. The appeal was, therefore, allowed and the plaintiff's suit was dismissed with costs throughout.
7. Aggrieved, the plaintiff-appellant has filed the Instant second appeal in this Court. I have heard Shrl A. K. Gupta, learned counsel for the appellant and Shri S. N. Singh, learned counsel for the respondent. I have also perused the record of this case.
8. Learned counsel for the appellant has challenged the judgment of the lower appellate court mainly on the grounds ; firstly, that the document in question was only a memorandum of family settlement, consequently it was not required to be registered ; and secondly, that the said family arrangement was acted upon by the parties and the defendant having benefited therefrom is estopped from denying the existence of the family arrangement or from questioning its validity. In support of his submission, learned counsel has placed strong reliance upon the decision of the Supreme Court in the case of Kale v. D.D.C., AIR 1976 SC 809. I have carefully considered the submission made by the learned counsel for the appellant. The family arrangement between the parlies had been reduced in writing and is on record as Exhibit 1. The lower appellate court has held, and in my opinion rightly, that the said document could not be said to be a deed of partition as one of the parties namely, Purshottam Dass has not taken any share in the property. The law, however, is well-settled that the family arrangement may be even oral and in that case, no registration is necessary. However, registration would be necessary only if the terms of the family arrangement are reduced into writing. The Supreme Court in the case of Kale (supra) has held that a distinction should be made between a document containing the terms and recitals of the family arrangement and a mere memorandum prepared after the family arrangement had already been made. In such a case, the memorandum Itself does not create or extinguish any right in immovable property and, therefore, not compulsorily reglsterable. To the same effect is the view expressed by the Supreme Court in the case of Roshan Singh v. Ziley Singh, AIR 1988 SC 881, wherein the following observations have been made :
Two propositions must, therefore, flow : (1) a partition may be effected orally ; but if it is subsequently reduced into a form of a document and that document purports by itself to effect the division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered Section 49 of the Act will prevent its being admitted in evidence."
9. In the light of the settled legal position, the document (Exhibit-1) can be examined. From a close perusal thereof. It would be evident that the same was not a memorandum of family arrangement by which some antecedent arrangement had been noticed and recorded for information or for rerr.emberanee. The document discloses that there has been a partition by metes and bounds between the two brothers (plaintiff and the defendant). Along with the document, a map drawn to scale has also been made a part thereof in which the two portions have been shown in red colour and in violet colour. The document discloses that the portion shown in the map in red has been allotted to the defendant and the one shown in violet colour has been given to the plaintiff. It also discloses that Purshottam Dass, who was the first party mentioned in the said deed. Is not taking any share in the property. This document also mentions that both the parties who will be in possession of their respective share will not obstruct the light and air of the other party and in case any of them is desirous of disposing of his share he shall offer the same to the other party, before disposing it of to any third person. The last line of this document is very significant. It reads as follows :
"Dastavez takseem nama likh diya ki waqt par kam aavey."
Therefore, from a bare reading of this document, it is evident that by the document Itself a partition was effected between the two real brothers, namely, the plaintiff and the defendant. Consequently, it cannot be said to be a mere memorandum of family arrangement which has already been effected and has been recorded only for the purpose of rememberance or for the record.
10. Learned counsel for the appellant has. however, contended that the word "takseem" should not be taken too literally and the same should be liberally construed. It has also been contended that the document has been written in past tense, consequently also it envisages that a thing had already been done and what was written was done subsequently for the record. I am unable to agree. It has been held by the Supreme Court in the case of Roshan Singh (supra) as follows :
"It is well-settled that while an Instrument of partition which operates or is Intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a right which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an Incidental recital of a previously completed transaction. The use of the past tense does not necessarily Indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an Instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in Immovable property."
11. From the reading of Exhibit 1, it is apparent that the same creates or declares some right in the Immovable property and it is not a mere list of properties allotted by a partition. Therefore, merely because at some place past tense has been used showing that the property has been partitioned will not Indicate that the document only records the said fact .and by itself does not effect any partition or create any right. I am, therefore, unable to accept the first submission of the learned counsel.
12. So far as the second submission is concerned, learned counsel has contended that the arrangement was acted upon Inasmuch as the plaintiff after the satd arrangement occupied the portion of the house that was earmarked for him in the attached map and had also filed suits against the tenants and one of those had been decreed in favour of the plaintiff who had also taken possession of the tenanted accommodation. It has also been contended that as agreed between the parties subsequently by means of a separate agreement the plaintiff was paying Rs. 35 per month to his father, Purshottam Dass. In view of the same, the parties had taken benefit of the said arrangement and are precluded from assailing the same. Further, they are estopped from denying the existence of the family arrangement or from questioning its validity. So far as this submission is concerned, the defendant was not denying that a written family arrangement had taken place but has asserted that the document by which the said arrangement was effected was not on a stamp paper and was not got registered, hence it was Inadmissible in evidence and could not be looked Into by the Court or taken into consideration. The defendant has also pleaded that the family arrangement was not acted upon. Learned counsel for the respondent has contended that in case the family arrangement was acted upon, Purshottam Dass would not have gifted his share to the defendant. That apart, in the gift-deed (Exhibit Ka-3) this fact has been stated by Purshottam Dass that attempt for compromise between the sons was made and he tried tq partition the house but the same could not take place. He has described that he had 1/3rd share in the house. This recital in the gift-deed executed by Purshottam Dass would also go to show that the said family arrangement which took place on 19.7.1967 could not be acted upon. There is another aspect of the matter. It is well-settled that there cannot be any estoppel against the statute. The law requires that a family arrangement which has been reduced into writing by which a division has been effected and some rights have been created requires to be registered. If it is not registered then Section 49 of the Act will prevent Its being admitted in evidence. Besides, any oral evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act. 1, therefore, do not find any force in the second submission of the learned counsel.
13. It was then urged that even assuming that registration of'the document was required. It can still be admissible in evidence for a collateral purpose. I do not find any force in this submission either. It has been held in the case of Ratan Lal v. Hari Shankar, AIR 1980 All 180. that collateral purpose referred to under Section 49 of the Registration Act has a 1imited scope and meaning. The term would not permit the party to establish that the deed created or declared or assigned or limited or extinguished a right to Immovable property. Therefore, a family arrangement needed to be registered and an unregistered one could not be used even to prove that there was a partition and oral evidence regarding partition on the basis of such document could not be led as it was barred by Section 91 of the Evidence Act. Learned counsel for the appellant has, however, placed reliance upon the observations made by the Supreme Court in the case of Kale (supra), wherein it was observed that even if the family arrangement was not registered it could be used for collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement. So far as the observation is concerned, it was made in the facts of the said case where the antecedent family arrangement which had been orally arrived at between the parties had been acted upon for several years. The petition was filed before the Assistant Commissioner that the dispute between the parties has been settled amicably between the members of the family and it no longer required determination and, therefore, mutation be effected in accordance with that antecedent family settlement. Under the said fact, the Supreme Court held that since the petition Itself did not create or declare any rights in the Immovable property, it was not hit by Section 17(1)(b) of the Registration Act and was not compulsorlly reglsterablc. It is in that background that observations were made in the said case. As this Court has already held that by the document of family arrangement some right in Immovable property has been created and some right has been extinguished, the term 'collateral purpose' would not permit the party to establish any of these facts from the deed. There Is, therefore, no substance in this submission of the learned counsel as well.
14. Learned counsel for the defendant-respondent has Invited the attention of the Court to the Mangal Prasad v. Vth Additional District Judge. AIR 1992 All 235. In which on similar facts, a learned single Judge of this Court had held that when by the Impugned document, the ancestral property was divided by metes and bounds between two real brothers, this clearly amounts to creating a fresh right in the property and such document requires registration. The observation made in this case supports the submissions made by the learned counsel for the defend ant-respondent.
15. As a result, this Court is of the view that the deed of family arrangement was rightly held to be Inadmissible in evidence as the same was hit by Section 35 of the Stamp Act and Section 17(1)(b) of the Registration Act, and the lower appellate court was, therefore, right in allowing the appeal. The second appeal lacks merit and is dismissed. However in the facts and circumstances of the case the parties shall bear their own costs.