ORDER

NUPUR BHATI, J. --

12/08/2025

1. By way of instant writ petition, the petitioners have invoked writ jurisdiction of this Court under Article 226/227 of the Constitution of India seeking following relief(s):

“(i) It is, therefore, most respectfully prayed that the writ petition filed by the petitioners may kindly be allowed with cost and by an appropriate order, writ or direction, impugned order dated 24.11.2023 (Annexure 06), may kindly be quashed and set aside, consequence thereof, the application may kindly be allowed as prayed for.

(2) Any other appropriate writ, order or direction, which is considered just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners.”

2. Brief facts of the case are that plaintiff-respondent No.1, Mahendra Pratap, filed a civil suit seeking declaration, dispossession, and permanent injunction against the defendants concerning a plot of land allegedly allotted by the Gram Panchayat Biharipura on 28.03.1960. The land in question is part of an aabadi area near the Panchayat Bhawan. It is claimed that Biharipura Panchayat was later merged into the Municipal Board, Bhadra in 1972. The plaintiff is the youngest son of one Choudhary Dhannaram, a resident of the area, who allegedly partitioned his properties among his sons through a family memorandum of partition dated 21.05.1971. After his death in 1972, the disputed plot (measuring 60 ft. x 90 ft.) allegedly came into the plaintiff's share.

2.1. The plaintiff alleges that the defendants unlawfully encroached upon this plot by placing construction materials and initiating foundation work. The plaintiff claims that defendant no. 4 sold the plot to defendant no. 1, who was granted a lease deed by the Municipal Board on 05.01.2012. A similar lease was allegedly granted to defendant no. 3 (Satpal). The plaintiff asserts that these lease deeds are invalid and forged, and seeks their cancellation, along with demolition of construction and recovery of possession.

2.2. The defendants (no.1 and 2) filed a written statement denying the plaintiff’s claims, calling the 1960 Patta forged, and challenging the partition memorandum as unregistered, unstamped, and inadmissible in evidence. They maintain that the lease deeds are lawfully executed and registered, and that the construction was raised legally without any objections.

2.3. During trial, after issues were framed and evidence commenced, the defendants objected to the admissibility of the 1971 partition memorandum by filing application dated 16.08.2023 (Annex.4), citing lack of registration and proper stamp duty. The trial court, vide order dated 24.11.2023, dismissed the said application/objection without proper findings on the document’s legal nature or admissibility. Hence this petition.

3. Learned counsel for the petitioners submits that the document in question dated 21.05.1971 apparently shows that it is not a family settlement but is a document indicating partition of the property between the family members. He further submits that the document which is indicating partition of property is neither stamped nor registered and thus is clearly inadmissible in evidence. He further submits that perusal of the document reflects that it has been written in Bahi with the witnesses and thus it amounts to being a partition deed and in the absence of the same being not duly registered and properly stamped, it is inadmissible in evidence.

3.1. He points out that in the plaintiff’s reply to the petitioners’ application, two contradictory positions were taken, claiming the document to be both a memorandum of oral partition and a family settlement and the learned trial court, by overlooking this contradiction and failing to ascertain the document’s nature, passed the impugned order in a cryptic and cursory manner..

3.2. He further argued that the document dated 21.5.1971 lacks legal validity as it is neither stamped nor registered, nor executed by all co-sharers and interest holders, as required by law to be admissible in evidence. The learned trial court’s failure to recognize this fundamental legal defect further underscores the perversity of the impugned order.

3.3. He further submits that the document, recorded in a Bahi with witnesses, assumes the character of a partition deed. However, in the absence of proper stamping, registration, and execution by all relevant parties, it lacks legal sanctity and cannot be recognized as a valid document.

3.4. He further submits that the plaintiff’s claim that the document dated 21.5.1971 forms the basis of their title, interest, and possession in the suit precludes its use for collateral purposes. The learned trial court’s erroneous allowance of the document without addressing this legal bar constitutes a significant perversity, warranting the annulment of the impugned order.

4. The learned counsel for the respondent/plaintiff submits that the trial court’s order dated 24.11.2023 is legally sound. The petitioners’ allegations of manifest perversity and patent illegality are unfounded, as the learned trial court duly considered the document dated 21.5.1971 and its context, rendering a judicious decision free from any miscarriage of justice. The learned trial court has rightly rejected the application filed by the petitioner while holding that a family settlement is not required to be registered and the same is admissible in law.

4.1. It is further submitted that the document dated 21.05.1971 is a valid memorandum of an oral partition, reflecting a preexisting family arrangement. Its recitals confirm its character as a record of an oral agreement, exempt from the formalities of a partition deed. The petitioners’ claim of ambiguity in the plaintiff’s pleadings is misconceived, as the document’s legal effect remains consistent, and the trial court’s determination of its nature is unimpeachable.

4.2. The learned counsel for the respondents submits that the document, as a memorandum of a prior oral partition, requires neither stamping nor registration under law.

4.3. The learned counsel for the respondents submit that the document is admissible for collateral purposes, such as establishing partition or possession, consistent with settled law. The trial court’s allowance of such use is legally sound, and the petitioners’ objections are unsustainable.

5. Heard learned counsel for the parties and have perused the material on record.

6. The learned trial court dismissed the defendants’ application petition on the basis that the document presented by the plaintiff was a memorandum of family settlement related to the partition of immovable property. Learned trial court observed that according to Section 17 of the Registration Act, 1908, as amended in 2001, such memorandum of family settlement or partition are exempted from the requirement of registration and that this legal provision means that the document does not have to be registered to be valid or admissible as evidence.

7. The learned trial court while dismissing the objection of the petitioner, also relied on authoritative judicial precedents, including the Supreme Court judgment in Ravindra Kaur & Ors. vs Manjit Kaur & Ors. (AIR 2020 SC 3799), which explicitly held that a memorandum of family settlement need not be registered. The court examined other relevant case laws submitted by both parties and found the ones supporting the plaintiff’s argument to be applicable and binding.

8. So far as the argument of learned counsel for the petitioner that the document was neither registered nor adequately stamped, and thus should be rejected, is concerned, the learned trial court held that this objection was not sustainable in the context of a family settlement document. The requirement for registration and adequate stamp duty does not extend to family settlement memorandum under the applicable law. Additionally, the learned trial court noted that the application filed by the defendants appeared to be motivated primarily by the intention to delay the proceedings rather than by any valid legal ground and the court concluded that the application filed by the defendants to exclude the document from evidence was not acceptable. Hence, the court dismissed the application and allowed the matter to proceed with the plaintiff’s evidence.

9. The controversy is very limited, inasmuch as the document to be considered as family settlement / family arrangement, is being challenged by petitioners on the ground that the document in question is in fact a partition deed and in absence of registration and stamped duty paid, the same cannot be considered by the learned trial court. This Court upon perusal of record and hearing learned counsel for the parties, is of the opinion that the document produced by the plaintiff, as a memorandum of family settlement / family arrangement, is in accordance with the judgment of Hon’ble Apex Court in the case of Kale Vs. Deputy Director of Consolidation : AIR 1976 SC 807, does not require mandatory registration and payment of stamp duty. The Relevant paragraphs of the aforesaid judgment reads as infra:

“10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangements may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

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46. In these circumstances, therefore, the appeal is allowed, the judgment of the High Court is set aside and by a writ of certiorari the Order of Respondent No. 1 dated January 22, 1965 is hereby quashed. The Order of the Settlement Officer dated November 28, 1964 which actually gave effect to the compromise is hereby restored and the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 and 5 in accordance with the family arrangement entered into between the parties referred to in this case. In the peculiar circumstances of the case there will be no Order as to costs.”

10. Once the family settlement / family arrangement as per the precedent law does not suffers from any infirmity of registration and payment of stamp duty, then the application filed by the petitioner has been rightly rejected.

11. In view of the above, the instant writ petition is bereft of merits. The same is, therefore, dismissed. Stay petition also stand dismissed.

12. Pending application(s), if any, stand disposed of.

Petition dismissed.

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