Holding

The memorandum is a mere recital of a past partition, not an instrument of partition, and therefore does not require registration and is admissible under Section 49.

Summary

The case involved descendants of a common ancestor who had partitioned their agricultural land in 1955 and later their residential properties. A memorandum of partition (Exh. P‑12) dated 3 August 1955, later confirmed by a settlement (Exh. P‑1) on 31 January 1971, listed the properties allotted to each party. The dispute centered on plot B2, with the lower courts holding that the plaintiffs owned it and treating the memorandum as a family arrangement admissible under the proviso to Section 49 of the Registration Act. On appeal, the question was whether the memorandum constituted an instrument of partition requiring registration under Section 17(1)(b) of the Registration Act, which would render it inadmissible. The Supreme Court held that the document merely recited a past partition and was a list of properties, not an instrument effecting a transfer of title, and therefore did not require registration. Consequently, it could be admitted for the collateral purpose of showing the nature of possession, and the appeal was dismissed.

Issues considered

Whether the memorandum of partition (Exh. P‑12) is an instrument of partition requiring registration under Section 17(1)(b) of the Registration Act, 1908.
Whether an unregistered document of this nature is admissible in evidence under the proviso to Section 49 of the Registration Act.

Legislation cited

Criminal Procedure Code, 1898s. 145
Indian Evidence Act, 1872s. 91
Registration Act, 1908s. 17(1)(b), s. 49

Subjects

PartitionRegistration ActSection 17Section 49Admissibility of documentsFamily settlementUnregistered instrumentProperty lawCivil appeal

Judgment

ROSHAN SINGH & ORS.
A
v.
ZILE SINGH & ORS.

FEBRUARY 24, 1988.

B [A.P. SEN AND B.C. RAY, JJ.]

-
Registration Ac~ 1908: SS. 17(1)(b) & 49: Partition-Document
containing list of properties allotted to parties-Recital of past events--
Registration whether necessary-Whether admissible in evidence to
prove factum ofpartition.
c The parties are decendants of a common ancestor, who had two 1 ·• "',.-
/.
sons. These two branches of the family had joint properties, both
agricultural and residential. The agricultural land was partitioned in
1955 and the names of the respective parties were duly mutated in the
revenue records. This was followed by a partition of their residential
D properties including the house, ghers, gbetwars etc. The factum of
partition was embodied in the memorandum of partition Exh. B-12
dated August 3, 1955 and bears the thumb impressions and signatures
of the heads of the families, and later confirmed in the settlement dated
January 31, 1971, Exh. P-1 written in the presence of a number of
villagers.
E
A dispute arose between the parties in February, 1971 when the
respondents were sought to be prevented by the appellants from raising
a boundary wall to a plot of land that had fallen to their share. In
proceedings under s. 145 Cr. P.C., 1898, the Su~Divisional Magis·
-
trate held that the father of the appellants was in actual possession of
F the disputed piece of land. In revision the Sessions Judge agreed with .
the conclusion arrived at by the Magistrate. On further revision the~ -f
High Court affirmed the findings reached by the courts below. ··

In a suit for declaration brought by respondents a Single Judge of
the High Court came to the conclusion that the disputed plot belonged ~
G to them and it had fallen to their share in the partition of 1955 and later
confirmed in the settlement dated 31st January, 1971. He construed the ·J
document Exh. p--12 to be a memorandum of family arrangement and
not an instrument of partition requiring registration and therefore
admissible in evidence under the proviso to s. 49 of the Act for a col·
lateral purpose of showing nature of possession. In a Letters Patent
H appeal a Division Bench of the High Court affirmed the reasoning and
.1106
ROSHAN SINGH v. ZILE SINGH 1107

conclusion arrived at by the Single Judge.
A
In the appeal by special leave, it was contended for the appellants
that the document Exh. P· 12 does not contain any recital of a prior,
completed partition but on its terms embodies a decision which is to be
the sole repository of the right and title of the parties i.e. according to
which partition by metes and bounds had to be effected. It, therefore, B
required registration under s. l 7 of the Registration Act.

Dismissing the appeal ,

HELD: 1. Partition, unlike the sale or transfer which consists in
its essence of a single act, Is a continuing state of facts. It does not require
' \ any formality, and therefore if parties actually divide their estate and
c
--.(/ '.agree to hold in severalty, there is an end of the matter. Ill 15B·C I

2. If the arrangement of compromise is one under which a person
having an absolute title to the property transfers his title in some of the
items thereof to the others, the formalities prescribed by law have to be D
•.!
complied with, since the transferees derive their respective title through
the transferor. If, on the other hand, the parties set up competing titles
and the differences are resolved by the compromise, there is no question
of one deriving title from the other, and therefore the arrangement does
not fall within the mischief of s. 17 read with s. 49 of the Registration
Act as no interest in property is created or declared by the document for E

-
the first time. it Is assumed that the title had always resided in him or
her so far as the property falling to his or her share is concerned and
therefore no conveyance is necessary. l1116C-E]

Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., 11955]
2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 F
IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, 11868] 3 Agra
')- ~ HC 82 at p. 84 refereed to.

In the instant case, admittedly there was a partition by metes and
bounds of the agricultural lands effected In the year 1955 and the shares
allotted to the two branches were separately mutated in the revenue G
records. There was thus a disruption of joint status. All that remained
was the partition of the ancestral residential house called rihaishi, the
smaller house called baithak and ghers/ghetwars. The document Exh.
P· 12 does not effect a partition but merely records the nature of the
arrangement arrived at as regards the division of the remaining pro-
perty. The parties set out competing claims to the properties and there H
1108 SUPREME COURT REPORTS [1988] 2 S.C.R.

A was an adjustment of the rights of the parties. The compromise was on
the footing that there was· an antecedent title of the parties to the pro-
perties and the settlement acknowledged and defined title of each of the
parties. The opening words of the document are: 'Today after discus-
sion it has been mutually agreed and decided that ... ' what follows is a
list of properties allotted to the respective parties. From these words it
B is quite obvious that the document contains the recital of the past events
and does not itself embody the expression of will necessary to effect the
change in the legal relation contemplated. It cannot, therefore, be con-
strued to be an instrument of partition. [1116F-G; lll4C-D]

C
Section 17(l)(b) of the Registration Act lays down that a docu-
ment for which registration is compulsory should, by its own force,
.operate or purport to operate to create or declare some rights in J
-
immovable property. Therefore, a mere recital of what has alreadr,/"")_.
taken place could not be held to declare any right and there would be no
necessity of registering such a document. I11 l3H; ll 14A]

D Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and
Nani Bai v. Gita Bai, AIR (1958) SC 706 referred to.

3. A document though unregistered can, however, be looked into
under the proviso to s. 49 of the Act which allows documents which
would otherwise be excluded, to be used as evidence of any collateral
E transaction not required to be effected by a registered instrument, for
the limited purpose of establishing a severance in status, though that
severance would ultimately affect the nature of the possession held by
the members of the separated family as co-tenants. The document Exh.
P· 12 can be used for the limited. and collateral purpose of showing that
the subsequent division of the properties allotted was in pursuance of
-
F the original intention to divide. l l 116G-H; 1117A]

to.
Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 referred A-(.
4. In any view, the document Exh. P-12 is a mere list of proper·
G ties allotted to the shares of the parties, It merely contains the recital of
past events. It is, therefore, admissible in evidence. llll7B]

Narayan Sakharam Patt1 v. Cooperative Central Bank, Malkapur
& Ors., ILR (1938) Nag. 604; Bageshwari Charan Singh v. Jagamath ;
Kuari, LR (1932) 59 IA 130; Subramanian v. Lutchman, LR (1923) 15
H IA 77; Ganpat Gangaji Patil v. Namdeo Bhag_wanji Patil & Ors., ILR.
ROSHAN SINGH v. ZILE SINGH ISBN, J.] 1109

(1942) Nag, 73 and Mu/la's Registration Act, Sth Edn. pp. 54-57 refer- A
red to.

CIVIL APPELLATE JURISDICTION: CIVIL APPEAL
No. 2185 of 1987.

From the Judgment and Order dated 4th August 1986 of the B
High Court of Delhi in R.F.A. No. 16 of 1986.
i
S.N. Kacker, Awadh Behari and A.K. Sanghi for the Appel-
!ants.

U .R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents.
c
-..( \. The Judgment of the Conrt was delivered by

SEN, J. This appeal by special leave by the defendants arises in
a suit for a declaration and in junction brought by the plaintiffs and in
the alternative for partition. They sought a declaration that they were D
the·owners in possession of the portions of the property delineated by
letters B2, B3, B4 and B5 in the plaint map which had been allotted to
them in partition, and in the alternative claimed partition and separate
possession of their shares. The real tussel between the parties is to gain
control over the plot in question marked B2 in the plaint map, known
as Buiyanwala gher. Admittedly, it was not part of the ancestral pro- E

- perty but formed part of the village abadi, of which the parties were in
unauthorised occupation. The only question is whether the plaintiffs
were the owners in possession of the portion marked B2 as delineated
in the plaint map. That depends on whether the document Exh. P-12
dated 3rd August, 1955 was an instrument of partition and therefore
inadmissible for want of registration under s. 49 of the Indian Registra- F
' tion Act, 1908, or was merely a memorandum of family arrangement
) ~arrived at by the parties with a view to equalisation of their shares.

The facts giving rise to this appeal are that the plaintiffs who are
four brothers are the sons of Soonda. They and the defendants are the
descendants of the common ancestor Chattar Singh who had two sons G
Jai Ram and Ram Lal. Soonda was the son of Ram Lal and died in
1966. Jai Ram in tum had two sons Puran Singh and Bhagwana. The
latter died issueless in 1916-17. Puran Singh also died in the year 1972
and the defendants are his widow, three sons and two daughters. It is
not in dispute that the two branches of the family had joint ancestral
properties, both agricultural and residential in Village Nasirpur, Delhi H

,
1110 SUPREME COURT REPORTS (1988] 2 S.C.R.

A Cantonment. The agricultural land was partitioned between Puran
Singh and Soonda in 1955 and the names of the respective parties were :r
duly mutated in the revenue records. This was followed by a partition
of their residential properties including the house, gher/ghetwar etc.
The factum of partition was embodied in the memorandum of partition
B
Exh. P-12 dated 3rd August, 1955 and bears the thumb impressions
and signatures of both Puran Singh and Soonda. In terms of this parti-
tion, the ancestral residential house called rihaishi and the open'space
behind the same shown as portions marked Al and A2 in the plaint r
map Exh. PW 25/1, fell to the share of Puran Singh. Apart from this,
Puran Singh was also allotted gher shown as A3 in the plaint map
admeasuring 795 square yards. Thus, the total area falling to the share
c of Puran Singh came to 2417 square yards. The plaintiffs' ancestor
Soonda on his part got a smaller house called baithak used by the male )
members and visitors, warked 81 in the plaint map having an area of ~
-
565 square 1yards. Apart from the house marked 81, Soonda also got
ghers marked 82 to 85, demarcated in yellow in the plaint map and
thus the total area got by Soonda also came to 2417 square yards.
D
In terms of this partition, the plaintiffs claim that the parties ~

have remained in separate exclusive possession of their respective
properties. However, in February 1971 the plaintiffs wanted to raise
construction over the gher marked 82 in the plaint map and started "
constructing a boundary wall. Defendants no. 1-3, sons of Puran 1\
E
Singh, however demolished the wall as a result of which proceedings r
under s. 145 of the Code of Criminal Procedure, 1898 were drawn
against both the parties about this property. The Sub Divisional
Magistrate, Delhi Cantt, New Delhi by her order dated 26th April,
1972 declared that the second party, namely Puran Singh, father of
- !JI
defendants nons. 1-3, was in actual possession of the disputed piece of
F land marked 82 on the date of the passing of the preliminary order and
' ~
within two months next before such date and accordingly directed 1
delivery of possession thereof to him until evicted in due course of law.,\ ~
On revision, the Additional Sessions Judge, Delhi by order dated 4th i.
~

March, 1974 agreed with the conclusions arrived at by the learned Sub •
Divisional Magistrate. On further revision, a learned Single Judge
G (M.R.A. Ansari, J.) by his order dated 6th Agust, 1975 affirmed the
,
' ~-

....
findings reached by the Courts below on condition that while party
no. 2 Puran Singh would remain in possession of the property in dis- ·)__
pute, he would not make any construction thereon. The plaintiffs were ~
accordingly constrained to bring the suit for declaration and injunction
·:i-
and in the alternative, for partition.
H
ROSHAN SINGH v. ZILE SINGH [SEN, J.) 1111

t -1 After an elaborate discussion of the evidence adduced by the
parties, the learned Single Judge (D.R. Khanna, J.) by his judgment
dated April 18, 1980 came to the conclusion, on facts, that the
A

plaintiffs were the owners in possession of the property marked as B 1,
a smaller house known as baithak, and the disputed plot B2, and the
properties, marked as Al, the ancestral residential house called
rihaishi and A2, the open space behind the same, belonged to the B
defendants. Taking an overall view of the evidence of the parties in the
1 light of the circumstances,' the learned Single Judge came to the con-
~
clusion that the gher marked B2 belonged to the plaintiffs and it had
.;..., fallen to their share in the partition of 1955 and later confirmed in the
settlement dated 3lst January 1971. In coming to that conclusion, he
observed:
c
-/~ "I have little hesitation that the portions marked A-1 and
A-2 and B-1 and B-2 were ancestral residential houses of
Ghers of the parties and Soonda and Puran had equal share
in them. The residential house shown as A-1 and the open
space behind that marked as A-2 were admittedly given to D
Puran in the partition of 1955. Similarly B-1 was allotted to
'" Soonda. I am unable to hold that B-2 was also allotted to
Puran. This would have been wholly unequitable and could
not have by any stretch reflected the equal division of these
joint properties. Puran in that case apart from getting the
~ residential house for which he paid Rs.3,000 to Soonda E

'
- would have also got far area in excess if defendants' case
that Gher B-2 also belongs to them is accepted. In any
natural and equitable division of the properties, that allot-
ment of the residential house marked 'A' and the open
space behind the same to Puran, Baithak B-1 and Gher
' No. 2 could have been naturally been given to Soonda. F
That it was actually done so, gets clarified in the document
~~ Ex. Pl dated 31.1.1971 which was written in the presence
of a number of villagers between Puran and Soonda."

The learned Judge went on to say that the document Exh. P-12 was
, executed by Puran Singh and Soonda in the presence of the villagers G
who attested the same, and there was some sanctity attached to it.
_\:: What is rather significant is that Puran Singh was required to pay
Rs.3,000 as owelty ll!Oney for equalisation of shares.

Aggrieved, the defendants preferred an appeal under cl. 10 of
the Letters Patent. A Division Bench of the High Court (D.K. Kapur, H
1112 SUPREME COURT REPORTS [1988] 2 S.C.R.

CJ. and N.N. Goswamy; J.) by its judgment dated 4th August, 1986
,A
affirmed the reasoning and conclusion arrived at by the :earned Shgle
Judge and accordingly dismissed the appeal. Both the :earned s;ngle
Judge as well as the Division Bench have construed the ti.:>cument Exh.
P-12 to be a memorandum of family arrangement and not an instru-
ment of partition requiring registration and therefore admissible in
B evidence under the proviso to s. 49 of the Act, and have referred to
certain decisions of this Court in support of that conclusion.

In support of the appeal, Shri S.N., Kacker, learned counsel for
the appellants has mainly contended that the document Exh. P- U is an
instrument of partition and therefore required registration under s. 17
of the Act. It is urged that the High Court has on a misconstruction of
c the terms wrongly construed it to be a memorandum of family arrange-
ment and admissible for the collateral purpose of showing nature of
. possession under the proviso to s. 49 of the Act. In substance, the
submission is that the document does not contain any recital of a prior,
completed partition but on its terms embodies a decision which is to be
D the sole repository of the right and title of the parties i.e. according to
which partition by metes and bounds had to be effected. We regret, we
find it rather difficult to accept the contention.
-{
In order to deal with the point involved, it is necessary to repro-
duce the terms of the document Exh. P- U which read: · )i
E
"Today after discussions it has been mutually agreed and
decided that house rihaishi (residential) and the area
towards its west which is lying open i.e. the area on the
back of rihaishi (residential) house has come to the share of
Chaudhary Pooran Singh Jaildar. · .

2. House Baithak has come to the share of Chau-
dhary Soonda. The shortage in area as compared to the
house rihaishi and the open area referred to will be made
good to Chaudhary Soonda from the filed and gitwar in the
eastern side. c
i
G·
3. Rest of the area of the field and gitwar will be half -t
and half of each of co-sharers. The area towards west will
be given to Chaudhary Pooran Singh and towards east will
be given to Chaudhary Soonda.

H 4. Since house rihaishi has come to the share of
ROSHAN SINGH v. ZILE SINGH !SEN, J.] 1113

Chaudhary Pooran Singh therefore he will pay Rs.3000 to A
Chaudhary Soonda.

5. A copy of this agreement has been given to each of
the co-sharers.

1 Sd/- in Hindi
· D/-3.8.1955
LTI
B

Pooran Singh Zaildar Ch. Soonda."

According to the plain terms of the document Exh. P"-12, it is
obvious that it was not an instrument ·of partition but merely a
~ memorandum recording the decision arrived at between the parties as
to the manner in which the partition was to be effected. The opening
c
words of the document Exh. P-12 are: 'Today after discussion it has
been mutually agreed and decided that ..... '. What follows is a list of
properties allotted to the respective parties. From these words, it is
quite obvious that the document Exh. P-12 contains the recital of past
events and does not itself embody the expression of will necessary to D
)- effect the change in the legal relation contemplated. So also the Panch
Faisala Exh. P-1 which confirmed the arrangement so arrived at, opens
with the words 'Today on 31.1.1971 the following persons assembled
to effect a mutual compromise between Chaudhary Puran Singh and
·y Chaudhary Zile Singh and unanimously decided that .... .'. The
purport and effect of the decision so arrived at is given thereafter. One E
of the terms agreed upon was that the gher marked B2 would remain in
the share of Zile Singh, representing the plaintiffs .
.>. It is well-settled that while an instrument of partition which
operates or is intended to operate as a declared volition constituting or
severing onwership and causes a change of legal relation to the pro- F
perty divided amongst the parties to it, requires registration under
s. 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 o{the partition transaction or
contains merely an incidental recital of a previously completed trans- G
-+- action. 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. Sec. 17(l}(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 H
1114 SUPREME COURT REPORTS [1988] 2 S.C.R.

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 proposi-
-- lions must therefore flow: (1) A partition may be effected orally; but if
it is subsequently reduced into a form of a document and th:.t ,,. cu-
ment purports by itself to effect a division and embodies all the terms
B of bargain, it will be necessary to register it. If it be not registered, s.
49 of the Act will prevent its being admitted in evidence. Secondary
evidence of the factum of partition will not be admissible by reason of
s. 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: See Mulla's Registration Act, 8th edn., pp. 54-57.
c
The tests for determining whether a document is an instrument
of partition or a mere list of properties, have been laid down in a long
catena of decisions of the Privy Council, this Court and the High
Courts, The question was dealt with by Vivian Bose, J. in Narayan
.D Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR
{1938) Nag. 604. Speaking for himself and Sir Gilbert Stone, CJ. the -{
learned Judge relied upon the decisions of the Privy Council in
Bageshwari Charan Singh v. Jagamath KuariLR (1932) 59 IA 130 and
Subramanian v. Lutchman LR (1923) 15 IA 77 and expressed as
follows:
E
' "It cari be accepted at once that mere lists of property do
not form an instrument of partition and so would not re-
quire registration, but what we have to determine here is J.
whether these documents are mere lists or in themselves
purport to 'create, declare, assign, limit of extinguish .....
any right, title or interest' in the property which is admit-
tedly over Rs.100 in value. The question is whether these
lists merely contain the recital of past events or in them-
selves embody the expression of will necessary to effect the
change in the legal relation
. , contemplated."
G Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in
Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR (1942) f
Nag. 73 reiterated the same principle. See also: order cases in Mulla's
Registration Act at pp. 56-57.

Even otherwise, the document Exh. P-12 can be looked into
H under the proviso to s. 49. which allows documents which would
ROSHAN SINGH v. ZILE SINGH (SEN, J.] 1115

-f otherwise be excluded, to be used as evidence of 'any collateral trans-
A
action not required to be effected by a registered instrument'. In
. Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 the Judicial
Committee of the Privy Council allowed an unregistered deed of gift
which required registration, to be used not to prove a gift 'because no
legal title passed' but to prove that the donee thereafter held in her
own right. We find no reason why the same rule should not be made B
applicable to a case like the present.
-f

- , Partition, unlike the sale or transfer which consists in its essence
of a single act, is a continuing state of facts. It does not require any
formality, and therefore if parties actually divide their estate and agree
to hold in severalty, there is an end of the matter.
c
~·"' subsequent
On its true construction, the document Exh. P-12 as well as the
confirmatory panch faisala Exh- P-1 merely contain the
recitals of a past event, namely, a decision arrived at between the
parties as to the manner in which the parties would enjoy the distinct
items of joint family property in severalty. What follows in Exh. P-12 D

~
- is a mere list of properties allotted at a partition and it cannot be
construed to be an instrument of partition and therefore did not re-
quire registration under s. 17(1)(b) of the Act. That apart, the docu-
ment could always be looked into for the collateral purpose of proving
the nature and character of possession of each item of property allot-
\' ted to the members. E

- The matter can be viewed from another angle. The true and
intrinsic character of the memorandum Exh. P-12 as later confirmed
by the panch faisla Exh P-1 was to record the settlement of family
iii arrangement. The parties set up competing claims to the properties
' and there was an adjustment of the rights of the parties. By such an F
) arrangement, it was intended to set at rest competing claims amongst
"" various members of the family to secure peace and amity. The corn-
promise was on the footing that there was an antecedent title of the
parties to the properties and the settlement acknowledged and defined
title of each of the parties. The principle governing this was laid down
" by the Judicial Committee in Khunni Lal v. Gobind Krishna Narain & G
Anr., LR ( 1911) 38 IA 87. Ameer Ali, J. delivering the judgment of
~· the Privy Council quoted with approval the following passage from the
judgment in Lalla Oudh Behari Lallv. Mewa Koonwar, [186813 Agra
HC 82 at p. 84:

"The true character of the transaction appears to us to have H
I-

1116 SUPREME COURT REPORTS (1988] 2 S.C.R.

A
been a settlement between the several members of the '<.""
family of their disputes, each one relinquishing all claim in
respect of all property in dispute other than that falling to "
his share, and recognizing the right of the others as they
had previously asserted it to the portion allotted to them
respectively. It was in this light, rather than as conferring a
B new distinct title on each other; that the parties themselves
seem to have regarded the arrangement, and we think that
it is the duty of the Courts to uphold and give full effect to
r
such an arragement."

This view was adopted by the Privy Council in subsequent deci-
j
C sions and the High Courts in India. To the same effect is the decision
of this Court in Sahu Madho Das & Ors. v. Pandit Mukand Ram &
Anr., [1955] 2 SCR 22. The true principle that emerges can be stated · ">---
I·
thus: If the arrangement of compromise is one under which a person
having an absolute title to the property transfers his title in some of the
items thereof to the others, the formalities prescribed by law have to,
D be complied with, since the transferees derive their respective title
through the transferor. If, on the other hand, the parties set up corn- ,,.
peting titles and the differences are resolved by the compromise, there
is no question of one deriving title from the other, and therefore the
arrangement does not fall within the mischief of s. 17 read with s. 49 of
the Registration Act as no interest in property is created or declared
E by the document for the first time. As pointed out by this Court in '(
Sahu Madho Das' case, it is assumed that the title bad always resided
in him or her so far as the property falling to his or her share is
concerned and therefore no conveyance is necessary.
--
;;;

In the present case, admittedly there was a partition by metes
F and bounds of the agricultural lands effected in the year 1955 and the
shares allotted to the two branches were separately mutated in the , (
revenue records. There was thus a disruption of joint status. All that A
•
remained was the partition of the ancestral residential house called
rihaishi, the smaller house called baithak and ghers/ghetwars. The
document Exh. P-12 does not effect a partition but merely records the· ~•,·
G nature of the arrangement arrived at as regards the division of the
remaining property. A mere agreement to divide does not require
registration. But if the writing itself effects a division, it must be regis- ·')._.
tered. See: Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123
and Nani Bai v. Gita Bai, AIR (1958) SC 706. It is well-settled that the
document though unregistered can however be looked into for the
H limited purpose of establishing a severance in status, though that
ROSHAN SINGH v. ZILE SINGH (SEN, J.] 1117

severance would ultimately affect the nature of the possession held by A
the_ members of the separated family as co-tenants. The document
Exh. P-12 can be used for the limited and collateral purpose of show-
ing that the subsequent division of the properties allotted was in
pursuance of the original intention to divide. In any view, the docu-
ment Exh. P-12 was a mere list of properties allotted to the shares of
the parties. ·
B

In the result, the appeal fails and is dismissed with costs.

- P.S.S. Appeal dismissed.

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