K. ARUMUGA VELAIAH versus P.R. RAMASAMY AND ANR.

Citation: [2022] 11 S.C.R. 692 · Decided: 27-01-2022 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 11 S.C.R.
[2022] 11 S.C.R. 692
692
K. ARUMUGA VELAIAH
v.
P.R. RAMASAMY AND ANR.
(Civil Appeal No. 2564 of 2012)
JANUARY 27, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGRATHNA, JJ.]
Code of Civil Procedure, 1908 – Res Judicata –Registration
Act, 1908 – s.17 – One ‘PS’ had two wives – From his first wife, he
had 4 daughters and a son (first defendant) and through his second
wife he had two sons; second defendant and late‘M’ – Second
defendant’s son is plaintiff – Plaintiff has averred that he has a
right to one-fourth share of PS under a will dated 26.01.1994 –
Plaintiff has sought partition and separate possession of his one-
fourth share in the suit schedule properties – District Munsiff
dismissed the suit – First Appellate Court also dismissed the appeal
and cross appeal – First Appellate Court held that in an earlier
Appeal Suit No. 37 of 1993 that the suit properties were partitioned
in the year 1964 and were binding on the parties and hence a fresh
suit filed by the plaintiff seeking the very same relief was not
maintainable – High Court held that in an earlier Appeal Suit No.
37 of 1993 that all the joint family properties had been divided into
three shares in favour of the sons of PS – Against the said decision,
no appeal had been preferred and hence the finding regarding the
partition had attained finality – Therefore, the instant suit was barred
by the principle of res judicata – Before the Supreme Court, point
for consideration whether, the suit filed by the plaintiff is barred in
view of the judgment and decree passed in A.S. No. 37 of 1993
dated 23.03.1999, wherein it was held that a partition had been
affected in relation to the joint family properties between the first
and second defendants and late ‘M’ in the year 1964 – Held:
Partition of this property took place in the year 1964 by virtue of
an award dated 13.06.1964 passed by the panchayatdars – The
said document was only a memorandum of understanding/family
arrangement to be acted upon in future – The said document did
not create rights in specific properties or assets of the family, in
favour of specific persons – The same did not require registration
u/s. 17 (1) (e) of the Act – Further, having regard to the fact that in
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the instant case there has been no challenge to the finding of
partition between the parties till date and the same has attained
finality – Hence, 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 – The principle of
res judicata squarely applies in the present case – 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-
plaintiff.
Dismissing the appeal, the Court
HELD: 1. On a perusal of the award which is in the form of
a resolution, it is clear that there was no right created in any
specific item or asset of the joint family properties in any person
but the parties resolved to take certain actions in pursuance of a
family arrangement. Therefore under Annexure P-10 (Ex. B-13)
there was no right created in favour of any party in any specific
item of joint family property. The said document which has been
styled as an award is, in our view, only a memorandum of
understanding/family arrangement to be acted upon in future.
Hence, in our considered view, the said document did not create
rights in specific properties or assets of the family, in favour of
specific persons. Therefore, the same did not require registration
under section 17 (1) (e) of the Act. [Para 23][719-A-C]
2. Having regard to the aforesaid provisions of law it can
be safely concluded that the said 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. Hence it
was exempted from registration under Section 17 (2) (v) of the
Act. A document of partition which provides for effectuating a
division of properties in future would be exempt from registration
under section 17 (2) (v). The test in such a case is whether the
document itself creates an interest in a specific immovable
property or merely create

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