ALLIANCE UNIVERSITY, ALLIANCE SCHOOL OF LAW

EVIDENCE LAW PROJECT FOR DSA SUBMISSION 2018, 5TH SEMSETER. .

NAME : PARVATHI SUBASH

REG.NO : 16040142092
CASE NAME : ROSHAN SINGH vs. ZILE SINGH , AIR 1988 SC 881
SUBJECT : LAW OF EVIDENCE
CLASS : BBA.LLB, SECTION B
SUBMITTED DATE : 15TH NOVEMBER, 2018
SUBMITTED TO : PROF. YAMINI C

PARVATHI SUBASH 1
 ACKNOWLEGMENT

This project report could not have been completed

without the guidance of our company law faculty PROF.
YAMINI.C and project guide by librarian.

I thank my classmates, friends and my dear parents for

giving the opportunity to work at this project.

I thank my internship staffs for their encouragement and

able guidance at every stage of training work.

I express my gratitude towards all staff those who have

helped me directly or indirectly in completing the
training.

PARVATHI SUBASH 2
 HEADNOTE

If, on the other hand, the parties set upcompeting titles and the differences are resolved by
thecompromise, there is no question of one deriving title fromthe other, and therefore the
arrangement does not fallwithin the mischief of s. 17 read with s. 49 of theRegistration Act as no
interest in property is created ordeclared by the document for the first time.A document though
unregistered can, however, belooked into under the proviso to s. 49 of the Act whichallows
documents which would otherwise be excluded, to beused as evidence of any collateral
transaction not requiredto be effected by a registered instrument, for the limitedpurpose of
establishing a severance in status, though thatseverance would ultimately affect the nature of
thepossession held by the members of the separated family asco-tenants.

By his judgment dated April 18, 1980 came to the conclusion,on facts, that the plaintiffs were the
owners in possessionof the property marked as B1, a smaller house known asbaithak, and the
disputed plot B2, and the properties,marked as A1, the ancestral residential house calledrihaishi
and A2, the open space behind the same, belonged tothe defendants.thelearned Judge relied upon
the decisions of the Privy Councilin Bageshwari Charan Singh v. Jagarnath Kuari LR (1932)
59IA 130 and Subramanian v. Lutchman LR (1923) 15 IA 77 andexpressed as follows: "It can be
accepted at once that mere lists of property do not form an instrument of partition and so would
not require registration,
but what we have to determine here is 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 admittedly over Rs.Ameer Ali, J. delivering thejudgment of the Privy Council
quoted with approval thefollowing passage from the judgment in Lalla Oudh BehariLall v. Mewa
Koonwar, [1868] 3 Agra HC 82 at p. 84:
"The true character of the transaction appears to us to have1116 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.http://JUDIS.NIC.IN
SUPREME COURT OF INDIA Page 9 of 9 competing titles and the differences are resolved by
the compromise,
there is no question of one deriving title fromthe other, and therefore the arrangement does not
fallwithin the mischief of s. 17 read with s. 49 of theRegistration Act as no interest in property is
created ordeclared by the document for the first time.

PARVATHI SUBASH 3
Page 2 of 9 1107 conclusion arrived at by the Single Judge. In the appeal by special leave, it was
contended forthe appellants that the document Exh. P-12 does not containany recital of a prior,
completed partition but on its termsembodies a decision which is to be the sole repository ofthe
right and title of the parties i.e. according to whichpartition by metes and bounds had to be
effected. It,therefore, required registration under s. 17 of theRegistration Act. Dismissing the
appeal,^ HELD: 1. Partition, unlike the sale or transfer whichconsists in its essence of a single
act, is a continuingstate of facts. It does not require any formality,
andtherefore if parties actually divide their estate and agreeto hold in severalty, there is an end of
the matter. [1115B-C] 2. If the arrangement of compromise is one under whicha person having
an absolute title to the property transfershis title in some of the items thereof to the others,
theformalities prescribed by law have to be complied with,since the transferees derive their
respective title throughthe transferor.
If, on the other hand, the parties set upcompeting titles and the differences are resolved by
thecompromise, there is no question of one deriving title fromthe other, and therefore the
arrangement does not fallwithin the mischief of s. 17 read with s. 49 of theRegistration Act as no
interest in property is created ordeclared by the document for the first time.
it is assumedthat the title had always resided in him or her so far asthe property falling to his or
her share is concerned andtherefore no conveyance is necessary. [1116C-E] Sahu Madho Das &
Ors. v. Pandit Mukand Ram & Anr.,[1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain &
Anr.,LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. MewaKoonwar, [1868] 3 Agra HC 82 at
p. 84 refereed to. In the instant case, admittedly there was a partitionby metes and bounds of the
agricultural lands effected inthe year 1955 and the shares allotted to the two brancheswere
separately mutated in the revenue records.
There wasthus a disruption of joint status. All that remained was thepartition of the ancestral
residential house calledrihaishi, the smaller house called baithak andghers/ghetwars. The
document Exh. P-12 does not effect apartition but merely records the nature of the
arrangementarrived at as regards the division of the remainingproperty. The parties set out
competing claims to theproperties and there1108was an adjustment of the rights of the parties.
Thecompromise was on the footing that there was an antecedenttitle of the parties to the
properties and the settlementacknowledged and defined title of each of the parties. Theopening
words of the document are:
'Today after discussionit has been mutually agreed and decided that ...' whatfollows is a list of
properties allotted to the respectiveparties. From these words it is quite obvious that thedocument
contains the recital of the past events and doesnot itself embody the expression of will necessary
to effectthe change in the legal relation contemplated. It cannot,therefore, be construed to be an
instrument of partition.[1116F-G; 1114C-D] Section 17(1)(b) of the Registration Act lays down
thata document for which registration is compulsory should, by

PARVATHI SUBASH 4
Page 3 of 9 its own force, operate or purport to operate to create or declare some rights in
immovable property.
The judgement of the court was delivered by
SEN, J. This appeal by special leave by the defendantsarises in a suit for a declaration and
injunction brought bythe plaintiffs and in the alternative for partition. Theysought a declaration
that they were the owners in possessionof the portions of the property delineated by letters
B2,B3, B4 and B5 in the plaint map which had been allotted tothem in partition, and in the
alternative claimed partitionand separate possession of their shares. The real tusselbetween the
parties is to gain control over the plot inquestion marked B2 in the plaint map, known as
Buiyanwalagher. Admittedly, it was not part of the ancestral propertybut formed part of the
village abadi, of which the partieswere in unauthorised occupation. The only question iswhether
the plaintiffs were the owners in possession of theportion marked B2 as delineated in the plaint
map. Thatdepends on whether the document Exh. P-12 dated 3rd August,1955 was an instrument
of partition and thereforeinadmissible for want of registration under s. 49 of the

Page 4 of 9 Indian Registration Act, 1908, or was merely a memorandum of family arrangement
arrived at by the parties with a view toequalisation of their shares. The facts giving rise to this
appeal are that theplaintiffs who are four brothers are the sons of Soonda.They and the
defendants are the descendants of the commonancestor Chattar Singh who had two sons Jai Ram
and Ram Lal.Soonda was the son of Ram Lal and died in 1966. Jai Ram inturn had two sons
Puran Singh and Bhagwana. The latter diedissueless in 1916-17. Puran Singh also died in the
year 1972and the defendants are his widow, three sons and twodaughters. It is not in dispute that
the two branches of thefamily had joint ancestral properties, both agricultural andresidential in
Village Nasirpur, Delhi1110Cantonment. The agricultural land was partitioned betweenPuran
Singh and Soonda in 1955 and the names of therespective parties were duly mutated in the
revenue records.This was followed by a partition of their residentialproperties including the
house, gher/ghetwar etc. The factumof partition was embodied in the memorandum of
partitionExh. P-12 dated 3rd August, 1955 and bears the thumbimpressions and signatures of
both Puran Singh and Soonda.In terms of this partition, the ancestral residential housecalled
rihaishi and the open space behind the same shown asportions marked A1 and A2 in the plaint
map Exh. PW 25/1,fell to the share of Puran Singh. Apart from this, PuranSingh was also
allotted gher shown as A3 in the plaint mapadmeasuring 795 square yards. Thus, the total area
fallingto the share of Puran Singh came to 2417 square yards. Theplaintiffs' ancestor Soonda on
his part got a smaller housecalled baithak used by the male members and visitors, warkedB1 in
the plaint map having an area of 565 square yards.Apart from the house marked B1, Soonda also
got ghers markedB2 to B5, demarcated in yellow in the plaint map and thusthe total area got by
Soonda also came to 2417 square yards. In terms of this partition, the plaintiffs claim thatthe
parties have remained in separate exclusive possessionof their respective properties. However, in
February 1971the plaintiffs wanted to raise construction over the ghermarked B2 in the plaint
map and started constructing aboundary wall. Defendants no. 1-3, sons of Puran Singh,however
demolished the wall as a result of which proceedingsunder s. 145 of the Code of Criminal
PARVATHI SUBASH 5
Procedure, 1898 weredrawn against both the parties about this property. The SubDivisional
Magistrate, Delhi Cantt, New Delhi by her orderdated 26th April, 1972 declared that the second
party,namely Puran Singh, father of defendants nons. 1-3, was inactual possession of the
disputed piece of land marked B2 onthe date of the passing of the preliminary order and
withintwo months next before such date and accordingly directeddelivery of possession thereof
to him until evicted in duecourse of law. On revision, the Additional Sessions Judge,Delhi by
order dated 4th March, 1974 agreed with theconclusions arrived at by the learned Sub
DivisionalMagistrate. On further revision, a learned Single Judge(M.R.A. Ansari, J.) by his order
dated 6th Agust, 1975affirmed the findings reached by the Courts below oncondition that while
party no. 2 Puran Singh would remain inpossession of the property in dispute, he would not
make anyconstruction thereon. The plaintiffs were accordinglyconstrained to bring the suit for
declaration and injunctionand in the alternative, for partition.1111 After an elaborate discussion
of the evidence adduced

Page 5 of 9 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 plaintiffs were the owners in
possessionof the property marked as B1, a smaller house known asbaithak, and the disputed plot
B2, and the properties,marked as A1, the ancestral residential house calledrihaishi and A2, the
open space behind the same, belonged tothe defendants. Taking an overall view of the evidence
ofthe parties in the light of the circumstances, the learnedSingle Judge came to the conclusion
that the gher marked B2belonged to the plaintiffs and it had fallen to their sharein the partition of
1955 and later confirmed in thesettlement dated 31st January 1971. In coming to thatconclusion,
he observed: "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 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 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 allotment 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. That it was actually done so, gets clarified in the document
Ex. P1 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-12was executed
by Puran Singh and Soonda in the presence ofthe villagers who attested the same, and there was
somesanctity attached to it. What is rather significant is thatPuran Singh was required to pay
Rs.3,000 as owelty money forequalisation 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,1112CJ. and N.N. Goswamy, J.) by its judgment dated 4th August,1986 affirmed the
reasoning and conclusion arrived at by thelearned Single Judge and accordingly dismissed the
appeal.Both the learned Single Judge as well as the Division Benchhave construed the document

PARVATHI SUBASH 6
Exh. P-12 to be a memorandum offamily arrangement and not an instrument of partitionrequiring
registration and therefore admissible in evidenceunder the proviso to s. 49 of the Act, and have
referred tocertain decisions of this Court in support of thatconclusion. In support of the appeal,
Shri S.N., Kacker, learnedcounsel for the appellants has mainly contended that thedocument
Exh. P-12 is an instrument of partition andtherefore required registration under s. 17 of the Act.
Itis urged that the High Court has on a misconstruction of theterms wrongly construed it to be a
memorandum of familyarrangement and admissible for the collateral purpose of

Page 6 of 9 showing nature of possession under the proviso to s. 49 of the Act. In substance, the
submission is that the documentdoes not contain any recital of a prior, completed partitionbut on
its terms embodies a decision which is to be the solerepository of the right and title of the parties
i.e.according to which partition by metes and bounds had to beeffected. We regret, we find it
rather difficult to acceptthe contention. In order to deal with the point involved, it isnecessary to
reproduce the terms of the document Exh. P-12which read:
"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 Chaudhary 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. 3. Rest of the area
of the field and gitwar will be half and half of each of co-shares. The area towards west will be
given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda. 4. Since
house rihaishi has come to the share of1113 Chaudhary Pooran Singh therefore he will pay
Rs.3000 to Chaudhary Soonda. 5.
A copy of this agreement has been given to each of the co-shares. D/-3.8. 1955 Sd/- in Hindi LTI
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 butmerely a memorandum recording the
decision arrived atbetween the parties as to the manner in which the partitionwas to be effected.
The opening words of the document Exh.P-12 are:
'Today after discussion it has been mutuallyagreed and decided that .....'. What follows is a list
ofproperties allotted to the respective parties. From thesewords, it is quite obvious that the
document Exh. P-12contains the recital of past events and does not itselfembody the expression
of will necessary to effect the changein the legal relation contemplated. So also the PanchFaisala
Exh. P-1 which confirmed the arrangement so arrivedat, opens with the words 'Today on
31.1.1971 the followingpersons assembled to effect a mutual compromise betweenChaudhary
Puran Singh and Chaudhary Zile Singh andunanimously decided that .....'.
The purport and effect ofthe decision so arrived at is given thereafter. One of theterms agreed
upon was that the gher marked B2 would remainin the share of Zile Singh, representing the
plaintiffs. It is well-settled that while an instrument ofpartition which operates or is intended to

PARVATHI SUBASH 7
operate as adeclared volition constituting or severing ownership andcauses a change of legal
relation to the property dividedamongst the parties to it, requires registration under s.17(1)(b) of
the Act, a writing which merely recites thatthere has in time past been a partition, is not
adeclaration of will, but a mere statement of fact, and it

Page 7 of 9 does not require registration. The essence of the matter is whether the deed is a part
of the partition transaction orcontains merely an incidental recital of a previouslycompleted
transaction. The use of the past tense does notnecessarily indicate that it is merely a recital of a
pasttransaction. It is equally well-settled that a mere list ofproperties allotted at a partition is not
an instrument ofpartition and does not require registration. Sec. 17(1)(b)lays down that a
document for which registration iscompulsory should, by its own force, operate or purport
tooperate to create or declare some1114right in immovable property.
Therefore, a mere recital ofwhat has already taken place cannot be held to declare anyright and
there would be no necessity of registering such adocument. Two propositions must therefore
flow: (1) Apartition may be effected orally; but if it is subsequentlyreduced into a form of a
document and that document purportsby itself to effect a division and embodies all the terms
ofbargain, it will be necessary to register it.
If it be notregistered, s. 49 of the Act will prevent its being admittedin evidence. Secondary
evidence of the factum of partitionwill not be admissible by reason of s. 91 of the EvidenceAct,
1872. (2) Partition lists which are mere records of apreviously completed partition between the
parties, will beadmitted in evidence even though they are unregistered, toprove the fact of
partition: See Mulla's Registration Act,8th edn., pp. 54-57. The tests for determining whether a
document is aninstrument of partition or a mere list of properties, havebeen laid down in a long
catena of decisions of the PrivyCouncil, this Court and the High Courts. The question wasdealt
with by Vivian Bose, J. in Narayan Sakharam Patil v.Cooperative Central Bank, Malkapur &
Ors., ILR (1938) Nag.604.
Speaking for himself and Sir Gilbert Stone, CJ. thelearned Judge relied upon the decisions of the
Privy Councilin Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59IA 130 and
Subramanian v. Lutchman LR (1923) 15 IA 77 andexpressed as follows: "It can be accepted at
once that mere lists of property do not form an instrument of partition and so would not require
registration, but what we have to determine here is 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 admittedly over Rs. 100 in value.
The question is whether these lists merely contain the recital of past events or in themselves
embody the expression of will necessary to effect the change in the legal relation
contemplated."Sir Gilbert Stone, CJ speaking for himself and Vivian Bose,J. in Ganpat Gangaji
Patil v. Namdeo Bhagwanji Patil & Ors.,ILR (1942) 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 lookedinto under the proviso to s. 49 which allows documents
whichwould1115otherwise be excluded, to be used as evidence of 'anycollateral transaction not
PARVATHI SUBASH 8
required to be effected by aregistered instrument'. In Varada Pillai v. Jeevarathnammal,LR
(1919) 46 IA 285 the Judicial Committee of the PrivyCouncil allowed an unregistered deed of
gift which required

Page 8 of 9 registration, to be used not to prove a gift 'because no legal title passed' but to prove
that the donee thereafterheld in her own right. We find no reason why the same ruleshould not be
made applicable to a case like the present.
Partition, unlike the sale or transfer which consistsin its essence of a single act, is a continuing
state offacts. It does not require any formality, and therefore ifparties actually divide their estate
and agree to hold inseveralty, there is an end of the matter. On its true construction, the
document Exh. P-12 aswell as the subsequent confirmatory panch faisala Exh- P-1merely
contain the recitals of a past event, namely, adecision arrived at between the parties as to the
manner inwhich the parties would enjoy the distinct items of jointfamily property in severalty.
What follows in Exh. P-12 is amere list of properties allotted at a partition and itcannot be
construed to be an instrument of partition andtherefore did not require registration under s. 17(1)
(b) ofthe Act. That apart, the document could always be lookedinto for the collateral purpose of
proving the nature andcharacter of possession of each item of property allotted tothe members.
The matter can be viewed from another angle. The trueand intrinsic character of the
memorandum Exh. P-12 as laterconfirmed by the panch faisla Exh P-1 was to record
thesettlement of family arrangement. The parties set upcompeting claims to the properties and
there was anadjustment of the rights of the parties. By such anarrangement, it was intended to set
at rest competing claimsamongst various members of the family to secure peace andamity.
The compromise was on the footing that there was anantecedent title of the parties to the
properties and thesettlement acknowledged and defined title of each of theparties. The principle
governing this was laid down by theJudicial Committee in Khunni Lal v. Gobind Krishna Narain
&Anr., LR (1911) 38 IA 87. Ameer Ali, J. delivering thejudgment of the Privy Council quoted
with approval thefollowing passage from the judgment in Lalla Oudh BehariLall v. Mewa
Koonwar, [1868] 3 Agra HC 82 at p. 84: "The true character of the transaction appears to us to
have1116 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 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 such an arragement." This view was adopted by the Privy
Council insubsequent decisions and the High Courts in India. To thesame effect is the decision of
this Court in Sahu Madho Das& Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22. Thetrue
principle that emerges can be stated thus: If thearrangement of compromise is one under which a
person havingan absolute title to the property transfers his title insome of the items thereof to the

PARVATHI SUBASH 9
others, the formalitiesprescribed by law have to be complied with, since thetransferees derive
their respective title through thetransferor. If, on the other hand, the parties set up

Page 9 of 9 competing titles and the differences are resolved by the compromise, there is no
question of one deriving title fromthe other, and therefore the arrangement does not fallwithin
the mischief of s. 17 read with s. 49 of theRegistration Act as no interest in property is created
ordeclared by the document for the first time. As pointed outby this Court in Sahu Madho Das'
case, it is assumed thatthe title had always resided in him or her so far as theproperty falling to
his or her share is concerned andtherefore no conveyance is necessary.
In the present case, admittedly there was a partitionby metes and bounds of the agricultural lands
effected inthe year 1955 and the shares allotted to the two brancheswere separately mutated in
the revenue records. There wasthus a disruption of joint status. All that remained was thepartition
of the ancestral residential house calledrihaishi, the smaller house called baithak
andghers/ghetwars. The document Exh. P-12 does not effect apartition but merely records the
nature of the arrangementarrived at as regards the division of the remainingproperty. A mere
agreement to divide does not requireregistration. But if the writing itself effects a division,it must
be registered. See: Rajangam Ayyar v. RajangamAyyar, LR (1923) 69 IA 123 and Nani Bai v.
Gita Bai, AIR(1958) SC 706. It is well-settled that the document thoughunregistered can
however be looked into for the limitedpurpose of establishing a severance in status, though
that1117severance would ultimately affect the nature of thepossession held by the members of
the separated family asco-tenants. The document Exh. P-12 can be used for thelimited and
collateral purpose of showing that thesubsequent division of the properties allotted was
inpursuance of the original intention to divide.

In any view,the document Exh. P-12 was a mere list of propertiesallotted to the shares of the
parties. In the result, the appeal fails and is dismissed withcosts.P.S.S. Appeal dismissed.1118

BIBLIOGRAPHY

PARVATHI SUBASH 10
 https://articlesonlaw.wordpress.com/2017/12/
 https://www.lawsfeed.com/supreme.../roshan_singh_ors_vs_zile_si
ngh_ors_24-02-19.
 www.lawyersclubindia.com › Experts › Legal Documents
 courtnic.nic.in/supremecourt/temp/ac%20171503p.txt

PARVATHI SUBASH 11