Judgment:
N.K. Kapoor, J.
1. This is defendant's regular second appeal. Plaintiffs filed a suit for declaration to the effect that they are owners of land measuring 252 kanals 13 marlas as described in Part A of the head of the Plaint and also sought possession of the land measuring 90 kanals 17 marlas shown in Part B of the heading of the plaint, which is also part of land measuring 252 kanals 13 marlas.
2. As per the case of the plaintiffs Kirpal Singh alias Pala Singh, father of the plaintiffs and the defendants was owner of the suit land. He executed a will dated 29.3.1971 in favour of the plaintiffs and Smt. Chand Kaur his wife. Vide will Smt. Chand Kaur was given a limited estate which was to revert to the plaintiffs on her death. Since Smt. Chand Kaur has died, the plaintiffs have become the owners of the suit land and are entitled to get possession of land measuring 90 kanals 17 marlas which is in possession of Joginder Singh defendant No. 1.
3. Suit was resisted by Joginder Singh, who denied the execution and validity of the will set up by the plaintiffs. As regards his possession over the land measuring 90 kanals 17 marlas it was stated that as per family partition/settlement Kirpal Singh alias Pala Singh have this land way back in the year Har 2004. Defendant further claimed a share from the estate of Smt. Chand Kaur.
4. On the pleadings of the parties, issues with regard to the validity of the will as well as to the alleged family settlement set up by the defendant and other issues relating to non-joinder of necessary parties; whether defendant has become owner by adverse possession etc. were framed. Primarily the contest revolved around the validity of the will and the settlement set up by defendant No. 1 and whether all heirs including Joginder Singh have equal share in the property left by Smt. Chand Kaur.
5. Trial Court on the basis of evidence came to the conclusion that will dated 29.3.1971 executed by Kirpal Singh alias Pala Singh was validly executed and on the basis of the will plaintiffs alongwith Smt. Chand Kaur succeed to the estate left by Pala Singh. The Court further held that though Smt. Chand Kaur had been given a limited estate but on account of coming into enforcement of the Hindu Succession Act, the same ripened into ownership and so on her death each one of her heirs, namely, plaintiffs and defendants succeed to this estate in equal shares. This way the trial Court held defendant No. 1 to be entitled to l/40th share in 186 kanals 10 marlas of land. Examining the case with regard to family settlement/partition the trial Court relying upon the decision of the apex Court in Kala Singh and Ors. v. Deputy Director of Consolidation and Ors., AIR 1976 S.C. 807 and Ram Charan Dass v. Girls Nandini Devi and Ors., AIR 1966 SC 323, held that the family settlement set up by the contesting defendant is only a memorandum of partition/family settlement and so does not require registration. On constructing this document and keeping in view of the change which had occurred on account of consolidation of holdings the Court came to the conclusion that 10 ghamoes of land which was given to Shri Joginder Singh by his father Kirpal Singh comes to 66 kanals 3 marlas only. Thus, qua this land Joginder Singh was held to be the owner of the property. This way, the Court held that whereas Joginder Singh is owner of 66 kanals 3 marlas of land out of 90 kanals 17 marlas as detailed in Part B of the heading of the plaint, qua the remaining land Joginder Singh has l/40th share in 186 kanals 10 marlas, whereas the remaining land is the exclusive property of the plaintiff. This way, the necessary declaration was granted with a direction to the parties to maintain status quo regarding possession till the land is partitioned by metes and bounds.
6. Plaintiffs feeling dissatisfied by the judgment and decree of the trial Court preferred an appeal. The lower appellate Court on reconsidering the matter especially with regard to the document exhibit D-5 relating to family settlement/partition deed held that the same required registration in view of Section 17 of the Registration Act. Since document was not registered the same was not taken into consideration and so the Court reversed the finding of the trial Court in respect of this issue. This way, the decree of the trial Court was modified holding that Joginder Singh has only l/40th share in the land measuring 252 kanals 13 marlas and entitled to remain in possession till the same is partitioned.
7. As noticed earlier the defendant has preferred an appeal against the judgment and decree of the Additional District Judge dated 30.10.1990. According to the appellant the lower appellate Court has erred in law in not properly construing the document exhibit D-5. According to the counsel, a perusal of the document reveals that the same is a memorandum of family settlement and so as per various decisions of this Court and the apex Court such a document is not required to be registered in terms of section 17 of the Registration Act. The lower appellate Court has lost sight of the fact that this document merely cites the land and other articles which were given as per family settlement. To evaluate such a document recital in the document and the surrounding circumstances are to be looked into; Precise spirit permeating the transaction should be the determining factor of its real nature. This way the lower appellate Court has taken a very superfluous view of this document which has thus resulted in failure of justice.
8. Counsel for the respondents on the other hand argued that a perusal of the aforesaid document leaves no manner of doubt that the same is a partition deed and in the absence of registration the same cannot be looked into. Moreover, even in revenue record though Joginder Singh is shown to be in possession of 90 kanals 17 marlas there is no indication in this document that he is full owner of the property on the basis of so called family arrangement/settlement. Moreover, the land measuring 8 ghamoes and 2 ghamoes mentioned in the document has not been detailed any where and to that extent the document is vague. The appeal thus, deserves to be dismissed.
9. I have heard the learned counsel for the parties as well as perused the judgments of the Courts below and the document exhibit D-5. Issue 5-B reads as:-
'5B Whether there was a family settlement between the parties in Harh 2004 and since then the defendant is in possession of the suit land as owner? OPD.'
10. This document bears the thumb impression of Pala Singh and Joginder Singh-defendant. It is scribed by Gurdial Singh and attested by Bhagwan Singh and Chanan Singh. Chanan Singh was examined as DW2 to prove this document exhibit D-5. Chanan Singh is related to the parties. He is real brother of Smt. Chand Kaur and so maternal uncle of plaintiffs and defendants. Vide document exhibit D-5 Pala Singh gave 8 ghamoes of barani land and 2 ghamoes of chahi land to Joginder Singh. In addition thereto he had been given a camel and some grains as well as share in the family jewellery. Document further recites that all the five brothers including Joginder Singh have distributed amongsts themselves the ornaments. Pala Singh retained for him his share in the land. Whether a document amounts to partition deed or it is only a memorandum of partition/family settlement, the recitals in the document are to be looked into and the surrounding circumstances. The precise spirit permeating the transaction should be the determining actor of its real nature. The Court is expected to dissect the transaction, scrutinise its legal implications and the legal consequences which follow. Document recites the land, the camel and the ornaments which have fallen to the share of Joginder Singh. There is not indication in the document that the same is a partition deed. The apex Court in Roshan Singh and Ors. v. Zile Singh and Ors., AIR 1988 SC 881 examined certain differences between a family settlement and the partition deed. The Court held as under:-
'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 writing 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 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. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. 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 a 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. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872 (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.'
11. Concededly, Joginder Singh is shown to be in possession of the land measuring 90 kanals 17 marlas even during the life time of Kirpal Singh alias Pala Singh. His claim to remain in exclusive possession has not been questioned by Kirpal Singh or the present plaintiffs. Examined in the light of writing exhibit D-5 it can be said that Joginder Singh retained possession of this piece of land i.e. 90 kanals 17 marlas claiming to be its exclusive owner (though the land measuring 252 kanals 13 marlas remains joint).
12. Both the Courts on evaluating the land which was given to Joginder Singh as per document exhibit D-5 have come to the conclusion that after consolidation of holdings the same comes to 66 kanals 3 marlas. Joginder Singh has, thus, been held to be the owner of 66 kanals 3 marlas and not 90 kanals 17 marlas which is in his occupation. Since, I am of the view that exhibit D-5 is only a memorandum of family settlement and not a partition deed the same does not require registration and so the findings of the lower appellate Court are consequently reversed. Resultantly, I accept the appeal, set aside the judgment and decree of the lower appellate Court and affirm the judgment and decree of the trial Court.
12. No order as to costs.