ROSHAN SINGH & ORS. versus ZILE SINGH & ORS.

Citation: [1988] 2 S.C.R. 1106 · Decided: 24-02-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
ROSHAN SINGH & ORS. 
v. 
ZILE SINGH & ORS. 
FEBRUARY 24, 1988. 
[A.P. SEN AND B.C. RAY, JJ.] 
Registration Ac~ 1908: SS. 17(1)(b) & 49: Partition-Document 
containing list of properties allotted to parties-Recital of past events--
Registration whether necessary-Whether admissible in evidence to 
prove factum of partition. 
c 
/. 
The parties are decendants of a common ancestor, who had two1 ·• "',.-
sons. These two branches of the family had joint properties, both 
agricultural and residential. The agricultural land was partitioned in 
1955 and the names of the respective parties were duly mutated in the 
revenue records. This was followed by a partition of their residential 
D properties including the house, ghers, gbetwars etc. The factum of 
partition was embodied in the memorandum of partition Exh. B-12 
dated August 3, 1955 and bears the thumb impressions and signatures 
of the heads of the families, and later confirmed in the settlement dated 
January 31, 1971, Exh. P-1 written in the presence of a number of 
villagers. 
E 
A dispute arose between the parties in February, 1971 when the 
respondents were sought to be prevented by the appellants from raising 
a boundary wall to a plot of land that had fallen to their share. In 
proceedings under s. 145 Cr. P.C., 1898, the Su~Divisional Magis· 
trate held that the father of the appellants was in actual possession of 
F 
the disputed piece of land. In revision the Sessions Judge agreed with 
. 
the conclusion arrived at by the Magistrate. On further revision the~ -f 
High Court affirmed the findings reached by the courts below. 
· · 
In a suit for declaration brought by respondents a Single Judge of 
the High Court came to the conclusion that the disputed plot belonged 
~ 
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to them and it had fallen to their share in the partition of 1955 and later 
confirmed in the settlement dated 31st January, 1971. He construed the 
·J 
document Exh. p--12 to be a memorandum of family arrangement and 
not an instrument of partition requiring registration and therefore 
admissible in evidence under the proviso to s. 49 of the Act for a col· 
lateral purpose of showing nature of possession. In a Letters Patent 
H 
appeal a Division Bench of the High Court affirmed the reasoning and 
.1106 
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ROSHAN SINGH v. ZILE SINGH 
1107 
conclusion arrived at by the Single Judge. 
In the appeal by special leave, it was contended for the appellants 
that the document Exh. P· 12 does not contain any recital of a prior, 
completed partition but on its terms embodies a decision which is to be 
the sole repository of the right and title of the parties i.e. according to 
which partition by metes and bounds had to be effected. It, therefore, 
required registration under s. l 7 of the Registration Act. 
Dismissing the appeal , 
HELD: 1. Partition, unlike the sale or transfer which consists in 
its essence of a single act, Is a continuing state of facts. It does not require 
'\ any formality, and therefore if parties actually divide their estate and 
--.(/ '.agree to hold in severalty, there is an end of the matter. Ill 15B·C I 
A 
B 
c 
2. If the arrangement of compromise is one under which a person 
having an absolute title to the property transfers his title in some of the 
items thereof to the others, the formalities prescribed by law have to be 
D 
complied with, since the transferees derive their respective title through 
the transferor. If, on the other hand, the parties set up competing titles 
and the differences are resolved by the compromise, there is no question 
of one deriving title from the other, and therefore the arrangement does 
not fall within the mischief of s. 17 read with s. 49 of the Registration 
Act as no interest in property is created or declared by the document for 
E 
the first time. it Is assumed that the title had always resided in him or 
her so far as the property falling to his or her share is concerned and 
therefore no conveyance is necessary. l1116C-E] 
Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., 11955] 
2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 
IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, 11868] 3 Agra 
')- ~ 
HC 82 at p. 84 refereed to. 
F 
In the instant case, admittedly there was a partition by metes and 
bounds of the agricultural lands effected In the year 1955 and the shares 
allotted to the two branches were separately mutated in the revenue 
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records. There was thus a disruption of joint status. All

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