Judgment:
A.P. Bhangale, J.
1. The present appeal is directed from the judgment and order passed by 3rd Ad hoc Additional District Judge, Wardha on 23rd March, 2004, whereby the first Appellate Court had set aside the judgment and decree passed in Regular Civil Suit No. 38/1997 dated 30-11-1999 and decreed Regular Civil Suit No. 48/1997. Thus, original plaintiff Vatsalabai (in Regular Civil Suit No. 48/1997) was held, entitled for possession to the portion of 0.58 R out of Land Survey No. 3/2 described in the plaint para 6 (read with map Exh.41). In the result, the appellant herein and their father Mahadeo Tulshiram Pathade were directed to hand over the possession of the said land situated in Mouza: Garpit, Tahsil: Karanja, District: Wardha and were further directed to pay damages, jointly and severally in the sum of Rs. 24,000/- + notice charges and expenses in the sum of Rs. 500/-. Separate order was made for inquiry as per Order 20, Rule 12 of the Code of Civil Procedure for mesne profits.
2. In the present appeal the following substantial questions of law were raised:
(1) Whether Exh.41 is merely a memorandum of partition or a document compulsorily registerable?
(2) Whether the Field Survey No. 18 mentioned in paragraph 13 of the judgment of the trial Court is available for partition between parties?
3. Smt. Vatsalabai, respondent herein, had filed Regular Civil Suit No. 48/1997 in the Court of Civil Judge Jr. Dn. At Karanja (Ghadge), District: Wardha with prayer for removal of encroachment and possession of the suit land. By judgment and order dated 30-11-1999 the said suit was dismissed with costs and thereafter the judgment and order of the trial Court was reversed in the appeal as stated above in Regular Civil Appeal No. 234/1999.
4. The relevant facts may be stated as under:
Late Tulshiram Pathade had two sons viz. Mahadeo and Shyamrao. Mahadeo died on 27-8-2007. Shyamrao died in the year 1991. Respondent (original plaintiff) Smt. Vatsalabai is widow of Shyamrao. Deceased Mahadeo has three sons namely, Punjab (appellant No. 2), Bandu (appellant No. 3), Bablu (appellant No. 4) and a daughter Smt. Anusaya Dhoble (appellant No. 5). It is contention of the plaintiff/respondent that she had received 1/2 share in the partition in the year 1994. While it appears that in the trial Court before Civil Judge Jr. Dn. Karanja (Ghadge), District: Wardha it was held that the partition of the suit land between the plaintiff and first defendant Mahadeo in the year 1994 was not proved. As also the alleged encroachment upon the land owned by the plaintiff Vatsalabai from Survey No. 3/2. The relief of damages and expenses was also denied to the plaintiff Vatsalabai. The trial Court had observed that the Range Forest Officer, Arvi has granted Field Survey No. 18, admeasuring 4.45 hectares purportedly for cultivation to Mahadeo. Thus, holding that the suit land was not partitionable without sanction of the Collector.
5. The findings recorded by the trial Court were overturned in Regular Civil Appeal No. 234/1999. The judgment and decree passed by the trial Court was set aside and Regular Civil Suit No. 48/1997 was decreed in favour of plaintiff Vatsalabai. Thus, the judgment and order passed by the first Appellate Court is subject of challenge.
6. Heard learned Advocate Shri Chopde for the appellants and learned Advocate Mrs. Chandekar for respondent.
7. The learned Counsel for the appellant contended that registration was compulsory if the immovable property, which is to be partitioned, is valued more than Rs. 100/-, pursuant to document as was exhibited in the present case between deceased Mahadeo and Vatsalabai (original plaintiff). Thus, according to the learned Counsel for the appellant document at Exh.43, dated 2nd September, 1994, was compulsorily registrable and therefore, not admissible in evidence.
8. The learned Counsel made reference to the oral evidence led in the trial Court as also pleading by the plaintiff that in the year 1994 the mutual partition in between the plaintiff and deceased Mahadeo (Original first defendant) in respect of the suit land, Field Survey No. 3 took place. Vatsalabai (plaintiff) deposed in the trial Court about the partition of the suit land in the year 1994, measurements taken with the help of rope method in presence of first defendant Mahadeo and other villagers pursuant to the alleged encroachment by Mahadeo (first defendant). The learned Counsel for the appellant also argued that one of the witnesses viz., Bhimrao Shyamrao Pathade had also deposed about mutual partition of the suit land between the plaintiff Vatsalabai and first defendant Mahadeo. Thus, out of total 11 acres of the land the plaintiff Vatsalabai was given 5 acres and first defendant Mahadeo possessed 6 acres land pursuant to the partition. Accordingly the mutual partition deed was written through one Bangde in presence of the plaintiff Vatsalabai; first defendant Mahadeo and witness Bhimrao and one Sonba Pathade on the stamp paper of Rs. 10/- which was bought by first defendant Mahadeo and signed by said Mahadeo as also witnesses apart from the thumb impression put in by the plaintiff Vatsalabai. Further, according to the learned Counsel for the appellant, document Exh.43 was executed to record partition, hence, registration was compulsory under Section 17(2) of the Indian Registration Act. It is also contended by the learned Counsel for the appellant that the suit property was granted to Mahadeo by Range Forest Officer for the purpose of cultivation. He made reference to oral evidence led in the trial Court by Vatsalabai. During the course of her cross-examination, she had stated that the suit land was bearing Old Survey No. 18 with area of 4.45 hectares and that the grant of land was made in favour of her father-in-law from the Forest Department and after his demise grant was made in the name of defendant (Mahadeo). Although, she did not produce any document to establish support for the above contention. The learned Counsel for the appellant also made reference to the evidence of witness No. 3 Motiram for the plaintiff to emphasize that the suit land belonged to Forest Department and grant was made in favour of first defendant Mahadeo for the purpose of cultivation.
9. Therefore, according to the learned Counsel for the appellants the trial Court Had rightly held that the suit land was not available for partition as it was government land it could not have been partitioned without sanction from the Government. Further it is contended that the burden of proof was upon the plaintiff to prove her title to the suit land to establish that joint family property was available for partition.
10. The learned Counsel also contended that the suit property was not ancestral property and urged that second appeal must succeed. He made reference to the ruling in Siromani v. Hemkumar : [1968]3SCR639 . It appears that, with reference to para No. 4, it was observed that document effecting partition of joint family property of the value of more than Rs. 100/- by metes and bounds is compulsorily registrable in view of Section 17(1)(b) of the Registration Act, 1908. In absence of registration it is inadmissible to prove title of any of the coparceners to any of the property. Such document is, however, admissible to prove intention of the coparcener to become divided in status. In Roshan Singh v. Zile Singh reported in AIR 1988 SC 881, with reference to para 16, it appears that when disruption has been taken place between the parties and led to family arrangement. It was held that subsequent memo of partition embodying factum of partition was family arrangement and its registration is not necessary. With reference to para 9 it is contended that the partition may be effected orally but it may be subsequently reduced into form of the document and if that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, Section 49 of the Registration Act will prevent it from being admitted in evidence.
11. It may be useful to reproduce Section 17(1)(b) of the Registration Act, 1908 as under:
17. Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and i4 they have been executed on or after the date on which Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866) or the Indian Registration Act, 1871 (8 of 1871) or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely:
(a)....
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
12. Thus, under Section 49, such document compulsorily registrable under Section 17(1)(b), cannot be received as evidence or any transaction affecting any property or conferring such power unless it has been registered. Reference is also made to Bakthawar Singh v. Gurudev Singh reported at : (1996)9SCC370 with reference to para 4 of the judgment the learned Counsel for the appellant did not dispute that memo regarding past oral partition of joint Hindu family property as the family settlement do not require registration. The learned Counsel for the appellant also made reference to ruling in Narayan Sakharam v. Co-op. Central Bank, Malkapur reported at 1938 NLJ 82 : AIR 1938 Nag 434 submitting that for immovable property if any document is executed purporting to create or distinguish any right, title or interest in the property, which is admittedly over Rs. 100/- in value it would be compulsorily registrable under Section 17(1)(b) of the Registration Act. According to the learned Counsel for the appellant Exh.43 was, in fact, deed of partition and was compulsorily registrable and therefore, the suit land was not available for partition between the parties as it was the land granted from Range Forest Officer for cultivation. He, therefore, urged that substantial question of law be answered accordingly and the appeal be allowed.
13. As against these submission, the learned Counsel for the respondent contended that document Ex.43 has been duly proved with the help of evidence led in the trial Court. According to the learned Counsel for the respondent Devidas Marotrao Bagade, Stamp Vendor, deposed that the plaintiff Vatsalabai and first defendant Mahadeo had approached him to reduce into writing a partition deed of the agricultural land situated at village Garpit. He had written down on the stamp paper which was bought by Mahadeo (first defendant). After the document was written down Vatsalabai (original plaintiff) has admitted the correctness of the contents after the stamp paper was read over to Smt. Vatsalabai and first defendant Mahadeo in presence of three witnesses. The said witness Devidas also deposed that before writing the stamp paper partition of the land had already been taken place and the stamp paper was written down with a view to enable parties to make entries in revenue record.
14. Thus, according to the learned Counsel for the respondent purpose of document/reduced on stamp paper was to ensure necessary mutation entries in the revenue record; pursuant to the partition which was already done between Vatsalabai and Mahadeo (first defendant). The learned Counsel also emphasised the fact that first defendant Mahadeo had bought the stamp paper he had also admitted his signatures in Exh.23 and had also made signatures in the documents. She also relied upon the ruling in Bakhtawar Singh v. Gurudev Singh (supra) as also three Judges Bench ruling of the Apex Court reported in Kale v. Dy. Director Consolidation : [1976]3SCR202 . In order to submit that memorandum regarding past oral partition of the joint Hindu family property is effective as family settlement or compromise which is not required to be registered. She has also contended that the rulings pointed out by the learned Counsel for the appellants were Division Bench rulings while she has pointed out ruling of three Judges Bench of the Hon'ble Supreme Court of India (Kale v. Dy. Director). She has strongly relied upon the observations made in Kale v. Dy. Director (supra) to contend that when any document is executed by way of either family settlement or arrangement between members of the family in near relation or descending from a common ancestor in order to sink their differences or disputes, or settle or resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. Such family arrangements are governed by special equities peculiar to themselves and would be enforced if honestly made. The object of such arrangement is to protect family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term 'family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country.
15. The Courts have, therefore, learned in favour of upholding a family arrangement instead of disrupting the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he had himself enjoyed some material benefits.
16. In the light of the rival submission, which reference to the facts of the case, and rulings cited at the bar the first substantial question of law is as to whether Exh.43 is merely a memorandum of partition or a document compulsorily registrable? The answer has to be given with reference to overall facts and circumstances of the case, revealed from the record and rulings of the subject. Looking to the evidence of the plaintiff Vatsalabai in the trial Court it appears that she is widow of Shyamrao Tulshiram Pathade, who had died in or about the year 1991. It is also evident that she, along with first defendant Mahadeo, was cultivating the suit land Survey No. 3 and in the year 1994 it was partitioned. She had received the share on the Western side after the land was measured in the presence of first defendant Mahadeo and other villagers. There was also dispute as to the alleged encroachment in the year 1994 by first defendant over the share of the land given to Vatsalabai. In this background, it appears that one surveyor has measured the land. It appears that the case of the plaintiff Vatsalabai in her evidence that the first defendant received 6 acres of the suit land while she had received 5 acres pursuant to oral partition. In the course of cross-examination the plaintiff Vatsalabai had stated that her father in law Tulshiram Pathade was granted land from Forest Department in respect of the suit land Old Survey No. 18, area of 4.45 hectares and after the death of her father-in-law grant was made in favour of the first defendant i.e. Mahadeo. She being illiterate woman was unable to depose as to on which date oral partition has occurred. It is to be noted that Regular Civil Suit No. 48/1997 was with prayer for removal of encroachment and possession of 1 1/2 acres of the suit land with further prayer for the damages. In para 6 of the plaint the plaintiff has described the portion encroached upon by the defendants in the suit land shown by letters ABCDA in the map along with plaint. The total damages were claimed in the sum of 25,000/- for the encroachment. In the light of this background, the evidence of witnesses examined on behalf of the plaint needs to be appreciated. It appeared that witness Devidas (plaintiffs Witness No. 2) stated that partition of the suit land was effected before writing on the stamp paper and the stamp paper was written only for the purpose of mutation. He also stated that the document Exh.43 is not registered. Plaintiffs another witness Motiram deposed about the encroachment by first defendant Mahadeo on 1 1/2 acres fallen in the share of the plaintiff. One more witness viz. Chandrakant had also deposed about the measurement of the land. So also witness No. 5 Bhimrao Shyamrao Pathade deposed about strained relations and subsequent partition of the suit land between the parties to the present proceedings. It is also pertinent to note that Mahadeo Tulshiram Pathade admitted that the suit land was forest land and was granted to him. But he denied the measurements and challenged the suit by the plaintiff as false.
17. In these facts and circumstances, looking to the evidence, plaint as also the rival contentions, prima-facie, it appears that from the document Exh.43 i.e. stamp paper in the denomination of Rs. 10/- was bought by Mahadeo (first defendant). It is titled as 'Apasi Watnipatracha Lekh Hisse-2' (Deed of Mutual Partition, Shares-2). The Stamp Paper was purchased on 2nd September, 1994 as the date is indicated and it was reduced into writing on the same date describing the suit land and stating that the land was purchased out of income of joint estate and the parties described as joint owners and co-sharers of the said agricultural land mentioning details and occupancy of the property and also indicated that western portion of 4H 25 R was given to Vatsalabai while 4 H 35 R was given to the share of Mahadeo Tulshiram Pathade. Further indicating that as per mutual partition the parties had already partitioned the field and they were holding their respective shares and the deed is memorandum thereof. It is also mentioned in it that the parties will co-operate each other for mutating their names in the revenue records.
18. I am required to refer the evidence only to satisfy myself for correctly answering the substantial question of law.
19. Thus, after having made reference to the evidence led in the trial Court as also the documents it does appears that document Exh.43 was not document intended as partition deed of the land owned by the family. It appears in the nature of compromise or settlement or arrangement between the parties possessing and cultivating the suit land. It cannot be labelled or described as partition deed because had it been so other coparceners in the family would not have been excluded. One can find evidence of witness Bhimrao and Shyamrao as also other coparceners appellant Nos. 2, 3 and 4 on record would not have been excluded from the partition deed in respect of the joint family property. Therefore, Exh.43 appears in the nature of the family arrangement or settlement or sort of compromise between the disputing parties, first defendant Mahadeo and plaintiff Vatsalabai who were quarrelling with each other over possession of the suit land after the death of Shyamrao Pathade. The document also acknowledges right, title or interest and mentions about the division of shares as agreed between them, intention of the parties to such document is to inform the Revenue Authorities for effecting mutation entries in the revenue record and to bury the dispute. It also appears in the evidence, in the present case, if intention of such document to inform the Court or mutation authorities for effecting entries in the revenue record, the document cannot be construed as partition deed by which right is created, extinguished, declared so as to render it compulsorily registrable under Section 17(1)(b) of the Registration Act.
20. The reasons stated in the ruling of Kale and Ors. v. Deputy Director of Consolidation and Ors. (supra) are attracted in the light of facts and circumstances of the present case. The Court would always lean in favour of the validity of such document which has purported to effect compromise or family settlement which is binding between the parties because intention of the parties to such document is to bring about the harmony between them by ending the family dispute between them. It may be that the possession of the land was originated from the grant of State Government from the Range Forest Officer on behalf of the State Government but the fact remains that, as acknowledged in the documents, the plaintiff and first defendant held possession of the suit land for the purpose of cultivation. It may be possible that if the possession of the suit land was used for any other purpose other than cultivation the Range Forest Officer, on behalf of the State Government, may resume possession by following due process of law. One cannot dispute the legal position that if any document has effected partition of joint family property worth more than Rs. 100/- by metes and bounds then in that case registration would be compulsory but not in such case wherein the parties had already effected partition but due to quarrels between them they want to ensure peace between them by effecting necessary mutation in the revenue record and to inform the revenue authorities or the Court, reduce their agreement in the form of writing. In such case, the Court must lean in favour of the validity of such document to facilitate cultivation of the suit field as agreed between the parties.
21. In this case, particularly when it appears from the evidence led in the trial Court as also from the nature of the document, plaintiff Vatsalabai was widow and illiterate she had put thumb impression on the document such woman may be ignorant of her legal rights while she had entered into agreement with the first defendant Mahadeo who intended of bringing about the harmony and to effect necessary mutation entries in the revenue record. Therefore, as observed by the Apex Court, the Court must lean in favour of upholding such document instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is also pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. In my opinion, the rule of estoppel can certainly be pressed as against the first defendant Mahadeo and/or his LRs in the case to prohibit them from disturbing possession of the plaintiff.
22. The plaintiff Vatsalabai may not have antecedant title in respect of the suit land but it would be assumed in her as she had been allotted a share in particular property by other party to the family arrangement by relinquishment or otherwise. In para 36 in the ruling of Kale v. Deputy Director (supra) the Apex Court made reference to judgment in Ramgouda Annagouda v. Bhausaheb reported in AIR 1927 SC 227 and observed thus:.Yet having regard to the near relationship which brother and the son-in-law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one.
23. Thus, any settlement, if made to end the disputes and to benefit all the near relations of the family must sustain as a valid and binding family settlement as the intention is to bring complete harmony in the family and to put an end to all the disputes parties had decided to divide the property each getting a share in the same.
24. From the evidence led in the suit it must be observed that document Exh.43 is merely memorandum by which it is evident that partition had taken place orally between the parties in the past. The parties had decided to reduce the fact of partition in writing to inform revenue authority to effect mutation entries in the revenue record. Such document cannot be considered as disposition or conveyance or assignment or settlement requiring registration.
25. Madras High Court in Smt. Chaya Gupta v. District Registrar, Chennai reported in AIR 2004 Mad 94, in para 20 observed thus:
20. In The Controller of Estate Duty, Andhra Pradesh, Hyderabad v. Kancharla Kesava Rao reported in : [1973]89ITR261(SC) , the Supreme Court followed its earlier pronouncement in The Commissioner of Gift Tax, Madras v. N.S. Getty Chettiar reported in : [1971]82ITR599(SC) and approved the judgment of this Court in Gutta Radhakrishnayya v. Gutta Sarsamma reported in : AIR1951Mad213 . In that context, the Apex Court held thus:
7. ...A partition is not a transfer in a strict- sense. It is an adjustment of the rights of the various members of the family. In Commissioner of Income Tax, Gujarat v. Keshavlal Lalubhai Patel : [1965]55ITR637(SC) , this Court quoted with the approval a passage from the decision of the Madras High Court in Gutta Radhakrishnayya v. Gutta Sarsamma : AIR1951Mad213 . That passage reads thus:
Partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process as a conferment of a new title is not necessary.
Therefore there cannot be two different opinion and the law is well settled. A partition among the members of a Hindu undivided family cannot be considered as a disposition or conveyance or assignment or settlement nor it is a transfer in the strict sense.
Therefore, it must be concluded that Exh.43, in the present case, is merely memo of partition and it was not the document required to be registered compulsorily. The substantial question of law No. 1 is answered accordingly.
26. Next question is, whether the Field Survey No. 18 mentioned in paragraph 13 of the judgment of the trial Court is available for partition between parties?
27. I have already considered evidence led in the trial Court as also the rulings. Admittedly, the suit land borne old Survey No. 18 as it appears from the evidence of the first defendant as also other witnesses, including Cadestal Surveyor examined in the case. Therefore, the land was available for partition between the parties and it was partitioned accordingly in respect of which document Exh.43 was prepared. Following the ruling in Kale v. Deputy Director Consolidation by the three Judges Bench of the Apex Court; in the facts and circumstances of this case, I do not find any reason to interfere or to disturb the judgment of the first Appellate Court. It must be noted that Section 100 of the Code of Civil Procedure deal with High Court's jurisdiction in the second appeal. It is restrictive jurisdiction, provided that the case involves substantial question of law, there would be no justification to reappreciate evidence or facts. The first Appellate Court by implication is final Court on facts and High Court has no jurisdiction to interfere even if there is gross error by first Appellate Court. In order to satisfy ourselves about the question of law of substantial nature bearing in mind that there is no absolute or automatic right of appeal in the second appeal it is not permissible for the High Court to interfere in the finding of the Appellate Court on the ground that first Appellate Court did not come with the close grip with4he reasoning given by the trial Court.
28. For all these reasons the second appeal fails and is accordingly dismissed with costs.