Document of partition which provides for effectuating division of properties in future, is exempted from registration u/s 17(2)(v) of Registration Act: SC

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Read Judgment: K. Arumuga Velaiah V. P.r. Ramasamy & Anr.

Pankaj Bajpai

New Delhi, January 28, 2022: The Supreme Court has opined that a document of partition which provides for effectuating a division of properties in future would be exempt from registration u/s 17(2)(v) of the Registration Act

The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title, added the Court.  

A Larger Bench of Justice L. Nageswara Rao, Justice B.R Gavai and Justice B.V Nagarathna observed that the partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon, a fresh suit for partition and separate possession of the suit properties was not at all maintainable, as it attracts the principle of res judicata. 

The background of the case was that Periyaiya Servai through his first wife had begotten P.R. Ramaswamy (first Respondent) and through his second wife had two sons, namely, P.R. Kasilingam second defendant and late Marimuthu. K. Arumuga Velaiah (Appellant – Plaintiff) is the son of P.R. Kasilingam. Appellant has claimed that his grandfather Periyaiya Servai had executed a will in his favour and therefore he had one fourth share in the suit property. Later, a suit was filed in the District Munsiff Court for declaration of title and permanent injunction, wherein all the suit properties had been shown as joint family properties. Against the dismissal of the said suit a preliminary decree was passed granting one-fourth share to the appellant. It was held that the suit properties were joint family properties and in the year 1964 there was a partition between the members of the joint family. Without assailing the said judgment, the appellant herein instituted a fresh suit before the District Munsiff Court, which was again dismissed, and upheld by the High Court. 

The main plank of argument of the appellant is that the suit filed by him could not have been dismissed on the principle of res judicata by holding that there was already a clear finding to the effect that there was a partition of the suit properties between the members of the joint family and hence a fresh suit for partition and separate possession vis-a-vis the same properties could not have been filed by the appellant as it was not maintainable. 

On the other hand, respondents contended that the finding that the suit properties were joint family properties which had been partitioned by the parties in the year 1964, not having been challenged at all by the appellant, had attained finality and hence the appellant was estopped from filing a fresh suit claiming partition and separate possession. 

The counsel for the appellant contended that the so-called partition which took place in the year 1964 was by virtue of an arbitral award passed by the panchayatdars (arbitrators) and the same, not having been registered, was not made a rule of the court and hence had no validity in the eye of law. This was countered by the counsel for the respondent by urging that the said award did not require registration at all. 

After considering the submissions, the Larger Bench opined that the arbitral award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties, and hence it was exempted from registration u/s 17(2)(v) of the Act.

Further, there has been no challenge to the finding of partition between the parties till date and the same has attained finality, added the Bench. 

The Larger Bench therefore held that the High Court was justified in affirming the judgments of the First Appellate Court as well as the Trial Court dismissing the suit filed by the appellant.

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