Case Note & Summary
The dispute in this second appeal arises between two real brothers over a suit plot and house at Subhash Nagar, Nagpur. The plaintiff-respondent (since deceased, represented by legal representatives) filed Regular Civil Suit No.836 of 1990 for partition, possession, and mesne profits, claiming that the suit plot was purchased jointly in the name of the defendant-appellant on 19-3-1981 for Rs.12,000, with three brothers contributing Rs.4,000 each. The plaintiff alleged that in 1983, the defendant proposed partition of the house into three equal parts, and a memorandum of partition was executed on 26-12-1983, allotting the southern portion (three rooms, 32' x 10') to the plaintiff. The defendant denied the claim, asserting that the document was nominal and executed only for taxation purposes. The Trial Court decreed the suit on 17-2-1994, directing the defendant to deliver possession of the southern portion to the plaintiff and ordering an enquiry into mesne profits. The First Appellate Court dismissed Regular Civil Appeal No.212 of 1994 on 17-7-2003, affirming the decree. The defendant then filed this second appeal. The High Court framed a substantial question of law regarding the admissibility of the unregistered memorandum of partition. The Court held that under the proviso to Section 49 of the Registration Act, 1908, an unregistered document required to be registered is admissible to prove the nature and character of possession as a collateral transaction. The memorandum dated 26-12-1983 was therefore rightly relied upon by the courts below to show that the plaintiff was in possession of the southern portion. The Court also noted that the document was not used to prove title but only to show the nature of possession. Consequently, the second appeal was dismissed, and the decree for possession was upheld.
Headnote
A) Registration Act, 1908 - Section 49 proviso - Admissibility of unregistered partition deed - An unregistered partition deed, though required to be registered under Section 17, is admissible under the proviso to Section 49 to prove the nature and character of possession of the parties, as a collateral transaction. The document can be looked into for the purpose of ascertaining the nature of possession and not for proving title. (Paras 7-9) B) Evidence Act, 1872 - Sections 91 and 92 - Exclusion of oral evidence - Where a document is inadmissible for want of registration, oral evidence may be given to prove the fact of partition, as the terms of the document cannot be proved. However, in this case, the memorandum was held admissible for collateral purpose. (Para 8) C) Partition - Family settlement - Unregistered memorandum - Courts below correctly relied on the memorandum dated 26-12-1983 to hold that the plaintiff was entitled to possession of the southern portion of the suit property, as the document evidenced a prior partition and the nature of possession. (Paras 10-11)
Issue of Consideration
Whether an unregistered memorandum of partition is admissible in evidence to prove the nature and character of possession of the parties, and whether the courts below erred in relying on such document to decree partition and possession.
Final Decision
The second appeal is dismissed. The decree for possession passed by the Trial Court and confirmed by the First Appellate Court is upheld. No order as to costs.
Law Points
- Unregistered partition deed admissible to prove nature of possession
- Section 49 Registration Act 1908 proviso
- Section 17 Registration Act 1908
- Section 91 Evidence Act 1872
- Section 92 Evidence Act 1872
