A dispute over a family property partition done through an arbitrator's award in 1964
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2564 OF 2012
K. ARUMUGA VELAIAH APPELLANT(S)
VERSUS
P.R. RAMASAMY AND ANR. RESPONDENT(S)
J U D G M E N T
NAGARATHNA J.
The plaintiff in Original Suit No. 101 of 2004 has assailed the
judgment and decree passed in Second Appeal No. 92 of 2007 by
the Madurai Bench of the High Court of Judicature of Madras
dated 6th August, 2007 by which, the judgment and decree
passed in Appeal Suit No. 38 of 2005 by the First Appellate Court
i.e. Court of the Subordinate Judge, Devakottai, affirming the
dismissal of the aforesaid suit by the District Munsiff Court,
Devakottai has been sustained.
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2.For the sake of convenience the parties herein shall be
referred to in terms of their rank and status before the Trial
Court.
3.The case of the Plaintiff in a nutshell is stated as under :
(i) Periyaiya Servai and Muthu Servai, were the sons of
Marimuthu Servai. Periyaiya Servai had three sons, being the
first and second defendants and Marimuthu, who is no longer
alive and whose wife Poomayil has also died. The plaintiff,
first and second defendants and late Marimuthu have one
fourth share each in the joint family properties. That
Periyaiya Servai through his first wife, Veeramakali Ammal
(since deceased) had four daughters and a son, being the first
defendant, namely, P.R. Ramasamy. Through his second wife,
Kaliammal, Periyaiya Servai had two sons, being second
defendant, namely, P.R. Kasilingam and Marimuthu. Second
defendant’s son, K. Arumuga Velaiya is the plaintiff.
(ii) According to the plaintiff, Periyaiya Servai had executed a
registered will dated 26th January, 1994, in favour of the
plaintiff in relation to his share of the properties of the joint
family. Thus, the joint family properties had to be divided into
four shares of which the plaintiff was entitled to one share,
bequeathed in his favour by his grandfather, Periyaiya Servai
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under the will. Further, Poomayil, on the death of her
husband Marimuthu had bequeathed his share in the
property to the first defendant. Hence the first defendant has
become entitled to half share in the joint family property and
the remaining half has to be equally divided between the
second defendant and the plaintiff. That the first defendant
sent a legal notice objecting to plaintiff’s share in the suit
schedule properties, which are joint family properties.
Therefore, the plaintiff has been constrained to file a suit for
partition and separate possession.
(iii) Plaintiff has averred that he has a right to onefourth share of
Periyaiya Servai under the will dated 26th January, 1994,
which came into operation on 25th March, 2003, on the
demise of Periyaiya Servai. With the aforesaid averments the
plaintiff has sought partition and separate possession of his
onefourth share in the suit schedule properties.
4.In response to the plaint, first defendant filed his written
statement which is encapsulated as under:
(i) First defendant has admitted that the suit schedule
properties were joint family properties but they had since
been divided. The fact that Periyaiya Servai had executed a
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will dated 26th January, 1994 (the written statement filed by
the first defendant before the Trial Court mentions the date of
the will as 24th January, 1994) in a good state of mind and
health has been denied. It is averred that late Periyaiya Servai
had a share in the suit properties but the fact that they were
bequeathed to the plaintiff by a will, is false. It is averred that
Periyaiya Servai and his brother Muthu Servai were living as
a joint family and Periyaiya Servai was the Karta of the
family. That from the income of the undivided ancestral
properties, several properties were purchased in the name of
Periyaiya Servai as he was the Karta of the family. There was
a partition between the brothers under a registered partition
deed. The coparcerners then became divided. That in 1964
Periyaiya Servai in turn partitioned his share of the joint
family properties in three parts, i.e. between the first and
second defendants and late Marimuthu and they have been
enjoying the properties since then. In that partition, no share
was allotted to Periyaiya Servai. An agreement for
maintenance of Periyaiya Servai during his life was also
made. Marimuthu died suddenly and his share in the
properties was being enjoyed by his wife Poomayil.
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(ii) Periyaiya Servai was 93 years old in 1991 and was not in a
position to take decisions on his own due to his old age. He
was acting according to the will of the second defendant and
Kaliammal who was Periyaiya Servai’s second wife. The
second defendant, taking advantage of the age and ill health
of his father tried to acquire properties of late Poomayil. O.S.
No. 347 of 1991 was filed in the name of Periyaiya Servai, on
the file of the District Munsiff Court, Devakottai, on false and
frivolous grounds. In that suit he had shown joint family
properties as independent properties of late Periyaiya Servai
and stated that the said properties were purchased out of the
personal income of Periyaiya Servai. In that suit, the
possession and enjoyment of the joint Hindu family ancestral
properties by late Periyaiya Servai and his brother, as also
the partition between them was suppressed. It was further
suppressed in the said suit that in the year 1964 a partition
took place before the panchayatdars and the partitioned
properties were enjoyed by late Periyaiya Servai, the first and
second defendants and Marimuthu. In the aforementioned
suit, the widow of Marimuthu, Poomayil also contested but
the District Munsiff Court, without taking into consideration
the said partition held that the properties were undivided
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ancestral joint family properties. Aggrieved by the same the
second defendant preferred an appeal in A.S. No. 37 of 1993.
Late Poomayil had also filed a cross appeal in A.S. No. 37 of
1993. The said suit was remanded to the lower court in the
year 1995.
(iii) Against the order of remand a second appeal was filed before
the High Court of Madras which remanded the matter to the
Subcourt, Devakottai, by restoring A.S. No. 37 of 1993. The
said appeal was disposed on 23rd March, 1999 by giving a
finding that the suit properties were ancestral properties
which were partitioned between the first and second
defendants herein and late Marimuthu and they were
enjoying the same separately. That after the death of
Marimuthu, Poomayil was in possession of the properties.
The said judgment has attained finality.
(iv) It was also contended that since the suit properties had been
partitioned equally between the first and second defendants
and late Marimuthu in 1964, they also had the right of
prescription against each other and were in adverse
possession. That Poomayil had died bequeathing her
husband’s properties to the first defendant under a will and
he was enjoying the properties after her death.
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(v) That on 26th December, 1988 Periyaiya Servai wrote two
Inam settlement deeds in respect of properties in Sr. No.
181/1 and 181/3 in Sathyamangalam Village. That O.S. No.
376 of 1991 was filed by the plaintiff herein against the
settlement deed, on the file of the District Munsiff Court,
Devakottai. The said suit was dismissed and the judgment
and decree in the said suit was confirmed in A.S. No. 38 of
1994.
(vi) That since the plaintiff herein had not benefited under the
said suit, he prepared the disputed will with the help of the
second defendant as if it was the will of Periyaiya Servai. That
during the period when the will is said to have been executed,
Periyaiya Servai was bed ridden and was not sane and was a
prisoner. That Periyaiya Servai was disqualified by virtue of
the doctrine of ouster, from making the will in respect of
ancestral properties, particularly after the judgment in O.S.
No. 347/1991. That the suit had been filed vexatiously when
the first defendant raised objection for the transfer of the
Patta on the basis of a concocted will.
(vii) As late Periyaiya Servai was not sane and healthy and he was
treated as a prisoner by the family of the plaintiff and the
second defendant a habeas corpus petition in HCP No. 457 of
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2003 was filed by the first defendant before the Madras High
Court. Before the petition was heard, Periyaiya Servai died
and the same was dismissed as not pressed by the first
defendant.
(viii) That the plaint in the instant suit was filed with a view to
extort monies from the first defendant. The first defendant
prayed before the Trial Court that the suit for partition and
separate possession filed by the plaintiff be dismissed.
5. The District Munsiff Court, Devakottai by its judgment and
decree dated 7th April, 2005 dismissed the suit being O.S. No.
101 of 2004. The salient findings of the Trial Court are as under:
(i)The Trial Court noted that the defendant had filed O.P. No. 7
of 1992 on the file of the District Munsiff Court, Devakottai
praying for a declaration that the partition deed stated to be
executed in the year 1964 between Periyaiya Servai, the
defendants and Marimuthu was invalid. The said suit was
decreed as prayed for, with a declaration to the effect that the
partition deed stated to be executed in the year 1964 was an
unregistered document and therefore, invalid.
(ii) The Trial Court also noted that in O.S. No. 347 of 1991 filed
by Periyaiya Servai, the District Munsiff Court, Devakottai
decreed that out of the properties belonging to Periyaiya
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Servai, his three sons, being the defendants therein and late
Marimuthu, would each be entitled to onethird share. In an
appeal from the judgment and decree in O.S. No. 347 of
1991, the first appellate court in A.S. No. 37 of 1993 held
that a valid partition had been carried out in the year 1964
whereby it was decided that no share was to be retained by
Periyaiya Servai and each of his sons was entitled to one
third share in the suit properties.
Given the contradictory decrees passed in O.P. No. 7 of
1992 and in A.S. No. 37 of 1993, the Trial Court held that the
latter decree would alone be enforceable.
(iii) That the partition deed executed in the year 1964 was valid
in the eye of law and such validity was confirmed by the Sub
Court, Devakottai in A.S. No. 37 of 1993. Since questions
surrounding the validity of the partition deed were finally
settled, the suit was barred by the principle of res judicata.
(iv) According to the decision in A.S. No. 37 of 1993, Periyaiya
Servai had not been allotted any share in the property and
the same was divided in three equal parts in favour of the two
defendants and Marimuthu. That Periyaiya Servai, following
the partition in the year 1964 had no right over the said
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property and consequently had no right to execute a will in
respect of the suit properties, in favour of the Plaintiff.
(v) That the plaintiff is not entitled to onefourth share in the
suit properties as prayed by him. That the defendants were
entitled to enjoy their share of the suit properties without any
restraint by virtue of the partition effected in 1964.
6.Being aggrieved, the plaintiff preferred A.S. No. 38 of 2005
before the first appellate court. By Judgment dated 17th
February, 2006, the appeal and cross appeal were dismissed and
the judgment of the Trial Court referred to above was
affirmed. The relevant findings of the first appellate court are
encapsulated as under:
i)The first appellate court considered the evidence of the first
defendant as DW1. In his crossexamination DW1 had
stated that a partition had been effected in the year 1964,
wherein the suit properties were divided among the three
sons of Periyaiya Servai i.e., the first and second defendants
and Marimuthu. That the patta was not obtained individually
by the sons of Periyaiya Servai following the execution of the
partition deed, however they had been paying kist in
connection with their respective properties. In the
circumstance, the first appellate court held that the fact that
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the defendants had not obtained pattas individually for their
respective shares in the suit properties, could not result in a
conclusion that Periyaiya Servai had not partitioned the suit
properties in favour of his sons.
ii)That the kist receipts paid by the first defendant from the
year 1964, in relation to his share of the suit properties led to
the conclusion that the first defendant was enjoying the
properties allotted to him by way of the partition effected in
the year 1964.
iii)Since partition was effected between Periyaiya Servai and his
sons in the year 1964, whereby the suit schedule properties
were divided among the first and second defendants and late
Marimuthu, and no property was apportioned in favour of
Periyaiya Servai, he had no right to execute a will
subsequently, in relation to the suit properties. Therefore the
will dated 26th January, 1994 is not a valid document.
iv)That the plaintiff could not claim title over onefourth share
of the suit properties on the basis of the will dated 26th
January, 1994 and therefore the Trial Court rightly dismissed
the suit filed by the plaintiff.
7.Being aggrieved, the plaintiff preferred second appeal No. 92
of 2007 before the Madurai bench of the Madras High Court. By
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judgment dated 6th August, 2007, the second appeal was
dismissed by holding that the following substantial questions of
law sought to be raised by the Plaintiff could not be considered:
i)Whether the Courts below are justified in holding that
the suit is barred in view of the decision in Appeal Suit
No. 37 of 1993 dated 23.03.1999 in as much as there
was a specific direction by the High Court, Madras in
the order of remand to the subordinate judge to consider
only whether the properties are joint family properties or
self acquisitions of Periyaiah Servai?
ii)Whether the courts below are justified in holding that
the suit is barred in view of the decision in Appeal Suit
No. 37 of 1993 on the file of SubCourt, Devakottai
without considering whether the principles laid down in
section 11 of the Code of Civil procedure are applicable?
iii)Whether the courts below are justified in not
considering the decision in Original Petition No. 7 of
1972 on the file of the SubCourt, Devakottai where
under original of exhibit B10 was held to be invalid and
unenforceable?
iv)Whether the courts below are justified in not
considering the admissions of DW1 that Periyaiah
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Servai was entitled to a share in the joint family
properties?
v)Whether the findings of courts below which are perverse
and not supported by any materials and against
available materials on record can be sustained?
The following findings were recorded by the High Court in the
impugned judgment:
(i) That it had already been held in Appeal Suit No. 37 of 1993
that all the joint family properties had been divided into three
shares in favour of the sons of Periyaiya Servai. 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.
(ii) The second appeal was dismissed at the stage of admission
on the ground that the substantial questions of law raised by the
plaintiff were not legally tenable.
The unsuccessful plaintiff has approached this Court
challenging the three judgments referred to above.
8. We have heard Sri. V. Prabhakar, learned advocate for the
appellant and Sri. K.K. Mani, learned advocate for respondents
and perused the material on record.
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9. Learned counsel for the appellantplaintiff at the outset
contended that the High Court as well as the courts below were
not right in dismissing the suit filed by the appellantplaintiff by
holding that there was a prior partition between the parties in the
year 1964 and hence the instant suit for partition and separate
possession was not maintainable. Elaborating the said contention
it was submitted that the so called partition of the suit schedule
properties in the year 1964 was as per an award. The said award
was not registered as per section 17 (1) (e) of the Registration Act,
1908 (hereinafter referred to as “the Act” for the sake of brevity).
Section 49 of the Act was also pressed into service to contend that
in the absence of registration of the arbitration award effecting the
partition between members of the family, the award does not have
any validity in the eye of law and hence it is not binding on the
parties. Since the said award had no effect in law, the family
continued to remain joint and the suit schedule properties were
joint ancestral properties. Hence, the suit for partition filed by the
appellant was maintainable.
10.In this context it was brought to our notice that O.S. No.
347 of 1991 was filed by Periyaiya Servai, the grandfather of the
plaintiff seeking declaration of title and consequential relief and
the said suit was dismissed against which A.S. No. 37 of 93 was
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filed. In the said appeal there was an order of remand to the Trial
Court. The remand order was challenged before the High Court.
The High Court remanded the matter to the first appellate court to
decide the appeal and to give a finding only on the nature of the
properties. Reliance was placed on the finding given by the first
appellate court on remand from the High Court to the effect that
the suit schedule properties are joint ancestral properties.
However, the first appellate court even in the absence of any
mandate of the High Court being given in the remand order went
ahead to hold that there was a partition between the members of
the family in the year 1964 and hence the suit for partition was
not maintainable. Learned counsel for the appellant contended
that such a finding could not have been given by the first
appellate court transgressing the contours of the order of remand
made by the High Court which was to determine only the nature
of the suit schedule properties and not whether there was a
partition of the same between the members of the family. That the
decision of the first appellate court in A.S. No. 37 of 1993 was
erroneous in so far as it travelled beyond the scope of the remand
made to it by the High Court and hence the said finding is not
binding on the parties.
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11.It was contended that the High Court in passing the
impugned judgment, could not have dismissed the second appeal
on the basis of an erroneous finding given by the first appellate
Court as the said finding was also not binding on the High Court.
It was contended that the principle of res judicata does not apply
in the instant case. Hence, the judgments of the High Court and
the Courts below may be set aside and the suit may be decreed.
12.Learned counsel for the appellant relied upon the following
judgments in support of his submissions:
a)Shiromani and Ors. v. Hem Kumar and Ors ., [1968] 3
SCR 639.
b)Satish Kumar and Ors. v. Surinder Kumar and Ors.,
[1969] 2 SCR 244.
c)Lachhman Dass v. Ram Lal , [1989] 3 SCC 99.
d)Asrar Ahmed v. Durgah Committee, Ajmer , AIR 1947 PC
1.
13. Per contra, learned counsel for the respondents supported
the impugned judgment of the High Court to contend that
registration of the arbitral award making a partition between the
parties was not compulsory. It was urged that partition of joint
family properties is not a transfer inter vivos. A partition only
crystallises the share of the coparceners in the joint family or
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ancestral properties. That so long as the parties are not allotted
shares pertaining to specific assets under a partition deed such a
document does not create any right, title or interest in any
specific property as such. Therefore, registration of the arbitral
award in the instant case as such is not a mandatory
requirement.
14. Alternatively, it was contended that the finding of the first
appellate court in A.S. No. 37 of 1993, regarding the partition and
division of the ancestral joint family properties in the year 1964
has attained finality. The said finding is binding on the parties.
Hence a fresh suit seeking partition and separate possession of
the properties was not at all maintainable. This is because the
aforesaid finding shall be presumed to be accepted by the parties
as there has been no challenge to the same and hence principle of
res judicata would apply.
15. It was further contended that even if it is assumed for the
sake of argument that, on remand, the first appellate court had
passed an erroneous judgment by giving a finding on a point
beyond the scope of remand, i.e., on the aspect of the arbitral
award having partitioned the suit schedule properties, such a
finding is binding on the parties as it has not been interfered with
by the High Court. That nothing prevented the appellant from
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assailing the said finding before the High Court by filing a second
appeal. Instead the appellant filed a fresh suit for partition which
is an instance of abuse of process of law as it is hit by the
principle of res judicata.
16. In the above backdrop it was contended that the High
Court was right in dismissing the second appeal as well as the
suit filed by the appellant plaintiff and there is no merit in this
appeal. Hence the same may be dismissed.
Learned counsel for respondents relied upon the following
three decisions to buttress his submissions:
a) Kale and Ors. v. Deputy Director of Consolidation,
[1976] 3 SCC 119.
b) Bhoop Singh v. Ram Singh Major and Ors ., [1995] 5
SCC 709.
c) Ravinder Kaur Grewal and Ors. v. Manjit Kaur and
Ors., [2020] 9 SCC 706.
d) Ripudaman Singh v. Tikka Maheshwar Chand , [2021]
7 SCC 446.
17. Having heard learned counsel for respective parties the
only point which arises for our consideration is, whether, the suit
filed by the plaintiff is barred in view of the judgment and decree
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passed in A.S. No. 37 of 1993 dated 23rd March, 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 Marimuthu in the year 1964.
18. The following undisputed facts may be noted:
(a) The relationship between the parties is not in dispute.
Periyaiya Servai through his first wife had begotten the first
defendant, P.R. Ramaswamy and through his second wife
had two sons, namely, P.R. Kasilingam second defendant
and late Marimuthu. The appellantplaintiff is the son of P.R.
Kasilingam.
(b) Appellant has also claimed that his grandfather Periyaiya
Servai had executed a will in his favour and therefore he had
onefourth share in the suit property.
(c) It is also not in dispute that O.S. No. 347 of 1991 was filed on
the file of the District Munsiff Court, Devakottai by Periyaiya
Servai 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 onefourth share to
the plaintiff therein in A.S. No. 37 of 1993 preferred against
the dismissal of the suit.
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(d) In A.S. No. 37 of 1993 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. The said
judgment was not assailed by any of the parties.
(e) However, the appellant herein instituted a fresh suit being
O.S. No. 101 of 2004 on the file of the District Munsiff Court,
Devakottai which was dismissed, against which A.S. No.
38/2005 was filed before the Subordinate Judge, Devakottai
wherein it was observed that the finding given in A.S. No. 37
of 1993 to the effect that there was a partition in the family in
the year 1964, had attained finality.
(f) Aggrieved by the dismissal of the appeal, second appeal being
S.A. No. 92 of 2007 was filed before the Madurai Bench of the
Madras High Court, which has also dismissed the same by
the impugned judgment.
19.The main plank of argument of the appellant is that the
suit filed by the plaintiffappellant herein could not have been
dismissed on the principle of res judicata by holding that in A.S.
No. 37 of 1993 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 visavis the same properties could not have
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been filed by the plaintiff as it is not maintainable. In this regard
the contention of the appellantplaintiff is that the aforesaid
finding was contrary to the mandate of remand and hence was
not binding on the parties. Contrarily, respondents have
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 plaintiff, had
attained finality and hence the plaintiff was estopped from filing a
fresh suit claiming partition and separate possession.
20. In the aforesaid context another contention raised by the
learned counsel for the appellant was that the socalled partition
which took place in the year 1964 was by virtue of an 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. The counter to the
aforesaid argument by learned counsel for the respondent is that
the said award did not require registration at all.
21.We shall at the outset consider the following judgments
relied upon by the learned counsel for the appellant:
a) In Shiromani and Ors. v. Hem Kumar and Ors ., [1968] 3
SCR 639, one of the questions raised was whether the validity
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of a partition deed could be challenged as being inadmissible
in evidence on the ground that it had not been registered as
mandated under Section 17 (1) (b) of the Act. In that case it
was held that under the recitals of exhibit D4 considered
therein, there was allotment of specific properties to individual
coparceners and the document therefore fell within the
mischief of Section 17 (1) (b) of the Act as it required
registration. Hence, the said document was not admissible in
evidence to prove the title of the coparceners to any particular
property or to prove that any particular property had ceased to
be joint property. However, document exhibit D4 considered
therein was held to be admissible to prove an intention on the
part of the coparceners to become divided in status; in other
words, to prove that the parties ceased to be joint from the
date of the instrument vide Nanni Bai v Gita Bai, [1959] 1
SCR 479. The said judgment is not applicable to the facts of
this case.
b)In Satish Kumar and Ors. v. Surinder Kumar and Ors .,
[1969] 2 SCR 244, a similar question on registration of an
award for partition of joint family property being compulsory
under Section 17 (1) (b) read with section 49 of the Act was
emphasised. In that case an award for partition was made
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under the Arbitration Act, 1940 and the question was whether
such an award on a private reference required registration if
the award effected partition of immovable property exceeding
the value of Rs. 100. The majority (2:1) held that an award
made by an arbitrator which affected right, title or interest of
the value of more than Rs. 100 in immovable property would
require registration. However, it was held that the filing of an
unregistered award under Section 49 of the Act is not
prohibited; what is prohibited is that it cannot be taken into
evidence so as to affect right, title or interest in immovable
property as per Section 17 of the Act. For this proposition
reliance was place on Champalal vs. Mst. Samarth Bai ,
[1960] 2 SCR 810.
Also reliance was placed on Kashinathsa Yamosa
Kabadi v. Narsinga Bhaskarsa Kabadi, [1961] 3 SCR 792
wherein this court had observed as under:
"The records made by the Panchas about the
division of the properties, it is true, were not
stamped nor were they registered. It is however
clear that if the record made by the Panchas in
so far as it deals with immovable properties is
regarded as a nontestamentary instrument
purporting or operating to create, declare,
assign, limit or extinguish any right, title or
interest in immovable property, it was
compulsorily registrable under Section 17 of the
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Registration Act, and would not in the absence
of registration be admissible in evidence."
The minority opinion voiced through K.S. Hegde J. in the
aforesaid case was that an arbitrator’s award does create
rights in property but those rights cannot be enforced without
further steps. For the purpose of Section 17(1) (b) of the Act,
all that is to be seen is whether the award in question
purports or operates to create or declare, assign, limit or
extinguish, whether in present or future any right, title or
interest, whether vested or contingent of the value of one
hundred rupees and upwards to or in immovable property. If it
does, it is compulsorily registerable.
c)In Lachhman Dass v. Ram Lal , [1989] 3 SCC 99, the issue
was that the arbitrator’s award had not been properly stamped
and as such could not be made the rule of the Court. It was
also contended that the award was unregistered and as such it
could not be made the rule of the Court as it affected
immovable property of more than Rs. 100. The said contention
was accepted by the Trial Court but in second appeal the High
Court observed that the award was stamped properly and it
did not require any registration as the award did not create
any right as such in the immovable property; it only admitted
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the already existing rights between the parties and hence
registration was not required. Hence the question considered
was whether the Court could have looked into the award for
the purpose of pronouncing judgment upon the award. On a
construction of the award questioned therein the decision of
the High Court was reversed. In doing so, this Court took into
consideration section 17 (1) (e) of the Act as well as sections
23, 25 and 49 of the Act. Further, reliance was placed on a
decision of the Division Bench of the Madras High Court in
Ramaswamy Ayyar and Anr. v. Tirpathi Naik , ILR 27 Mad
43, wherein it was observed that it is necessary to read a
document in order to ascertain, not what the document
intends to convey really but what it purports to convey. In
other words, it is necessary to examine not so much what it
intends to do, but what it purports to do. It was further
observed in paragraph 14 as under:
“14. The real purpose of registration is to secure
that every person dealing with the property,
where such document requires registration may
rely with confidence upon statements contained
in the register as a full and complete account of
all transactions by which title may be affected.
Section 17 of the said Act being a disabling
section, must be construed strictly. Therefore,
unless a document is clearly brought within the
provisions of the section, its nonregistration
would be no bar to its being admitted in
evidence.”
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Reliance was also placed on Ratan Lal Sharma v.
Purushottam Harit, [1974] 3 SCR 109 to hold that the
arbitration award in the said case did not just seek to assign a
share of the respondent to the appellant therein, but made an
exclusive allotment of the partnership assets including the
factory and liabilities to the appellant therein. Therefore, the
award in express words purported to create rights in
immovable property worth a sum above Rs. 100/ in favour of
the appellant therein. It was accordingly held that it would
mandatorily require registration under section 17 of the Act.
22. We shall now consider the citations relied upon by the
respondents:
a) Kale and Ors. v. Deputy Director of consolidation , [1976]
3 SCC 119, is a case which had a checkered history in which
a discussion on the effect and value of family arrangements
entered into between the parties with a view to resolve
disputes once and for all, came up for consideration. It was
observed that in the case of a family settlement, usually there
would be an agreement which is implied from a long course of
dealing, but such an agreement would be embodied or
effectuated in a deed to which the term “family arrangement”
is applied. Such a family arrangement is not applicable to
27
dealings between strangers but is in the context of
maintaining the interest and peace of the members of the
family. In paragraph 10 of the said judgment, this Court has
adumbrated on the essentials of a family settlement which
could be usefully extracted as under:
“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
28
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.”
After reviewing several judgments of this Court, the Privy
Council and other High Courts, this Court in paragraph 20
indicated the following propositions:
“We would, therefore return the reference with a statement
of the following general propositions:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of
registration arises.
(3) If though it could have been made orally, it was in fact
reduced to the form of a "document" registration (when the
value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a
document" is a question of fact in each case to be
determined upon a consideration of the nature and
phraseology of the writing and the circumstances in which
and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a
document", registration was not necessary (even though the
value is Rs. 100 or upwards); and, while the writing cannot
29
be used as a piece of evidence for what it may be worth, e.g.
as corroborative of other evidence or as an admission of the
transaction or as showing or explaining conduct.
(6) If the terms were "reduced to the form of a document"
and, though the value was Rs. 100 or upwards, it was not
registered, the absence of registration makes the document
inadmissible in evidence and is fatal to proof of the
arrangement embodied in the document.”
Ultimately, this Court held that the family arrangement in
the nature of a compromise which was considered in that case
did not require registration. It was further held that since the
existence of the family arrangement was admitted in that case,
the same was binding on the principle of estoppel. Also, even if
the family arrangement could not be registered it could be
used for collateral purpose, i.e. to show the nature and
character of possession of the parties in pursuance of the
family settlement and also for the purpose of applying the rule
of estoppel which flowed from the conduct of the parties, who,
having taken benefit under the settlement for seven years,
later tried to resile from the settlement.
b)In Bhoop Singh v. Ram Singh Major and Ors ., [1995] 5
SCC 709, this Court stated the legal position in the context of
registration of documents under section 17 (2) (vi) of the Act in
the following words, so as to distinguish the same from section
17 (2) (v):
30
“18. The legal position qua Clause (vi) can, on
the basis of the aforesaid discussion, be
summarised as below:
(1)Compromise decree if bona fide, in the
sense that the compromise is not a device to
obviate payment of stamp duty and frustrate
the law relating to registration, would not
require registration. In a converse situation, it
would require registration.
(2)If the compromise decree were to create for
the first time right, title or interest in
immovable property of the value of Rs. 100 or
upwards in favour of any party to the suit the
decree or order would require registration.
(3)If the decree were not to attract any of the
clauses of Sub section (1) of Section 17, as was
the position in the aforesaid Privy Council and
this Court's cases, it is apparent that the decree
would not require registration.
(4)If the decree were not to embody the terms
of compromise, as was the position in Lahore
case, benefit from the terms of compromise
cannot be derived, even if a suit were to be
disposed of because of the compromise in
question.
(5)If the property dealt with by the decree be
not the "subject matter of the suit or
proceeding", Clause (vi) of Subsection (2) would
not operate, because of the amendment of this
Clause by Act 21 of 1929, which has its origin
in the aforesaid decision of the Privy Council,
according to which the original Clause would
have been attracted, even if it were to
encompass property not litigated.”
c)In Ravinder Kaur Grewal and Ors. v. Manjit Kaur and
Ors., [2020] 9 SCC 706 considering both the aforesaid
judgments, this Court opined that when a family settlement
arrived at between the parties has been acted upon then it is
31
not open to resile from the same and the parties are estopped
from contending to the contrary.
d) The facts in Ripudaman Singh v. Tikka Maheshwar
Chand, [2021] 7 SCC 446 were that, the parties being
brothers, had entered into a compromise in respect of a land
dispute. Plaintiff, therein, on the basis of the compromise
decree applied for mutation of land in his favour, which was
allowed. In appeal there was a direction to Naib Tehsildar to
decide the mutation afresh. Subsequently, the Divisional
Commissioner dismissed the appeal filed against the said
order. A suit was filed which was dismissed but the appeal
preferred by the appellant was allowed. However, the High
Court in the second appeal, set aside the judgment of the first
appellate court and dismissed the suit on the ground that the
land, even though was a subject matter of compromise, was
not the subject matter of the suit and therefore, the
compromise decree required registration under the provisions
of the Act. This Court while allowing the appeal and setting
aside the decree of the High Court held that when a pre
existing right in the property is being recognised by way of a
settlement in a Court proceeding and no new right is created
for the first time when the parties entered into a compromise
32
in the civil court, there is no requirement of compulsory
registration. In other words, a compromise recognising a pre
existing right in a property amongst heirs does not require
registration under the Act. In this case the distinction
between section 17 (2) (v) and (vi) was brought out by
referring to the aforementioned judgments.
23.In order to answer the aforesaid twin questions, at the
outset we have to consider the award dated 13th June, 1964
passed by the panchayatdars which has been produced as
Annexure P10 by learned counsel for the appellant. The award is
in the form of a resolution on the strength of the statement given
by Periyaiya Servai and the consent statement given by P.R.
Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya
Servai. There are details as to how the properties had to be dealt
with. The parties had also stated that they had read the above
resolution and had agreed wholeheartedly to obey the provisions
thereof. For a better appreciation of the nature of the award
passed by the panchayatdars, it would be useful to extract
Annexure P10 as under:
“RESOLUTION PASSED BY THE
PANCHAYATDARS ON 20
TH
DAY OF THE MONTH
OF PANGUNI OF TAMIL SOBAKRITHU YEAR IN
REGARD TO PARTITION BETWEEN THE THREE
SONS OF M. PERIYAYYA SERVAI VIZ. (1)
RAMASAMY, (2) KASILINGAM AND (3)
MARIMUTHAN .
33
DETAILS
The said M. Periyayya Servai had two wives
1)Veerayakli – First Wife
2)Kaliyamma – Second Wife
The Son born through first wife is Ramasamy. The
Sons born through second wife are Kasilingam and
Marimuthan.
We have passed the following Resolutions on the
strength of the statement given by the said M.
Periyayya Servai in front of us and the consent
statement given by Ramasamy and Kasilingam, after
perusal of the above statement.
DETAILS OF RESOLUTIONS
1.The nanjai, punjai and accessories viz
Thitthuthidal, cattle, chickens, vessels and all
other household articles are to be divided into
three equal shares.
2.As the Panchayatdars unanimously decide that
the three acres of land out of the total common
Nanjai lands are to be left to the care of
Ramasamy, the eldest Son, the said three acres
of Nanjai Lands are to be accordingly given away
to Ramasamy.
3.We, the Panchayatdars RESOLVE to cancel the
expenses incurred in connection with the actions
revolving round partition as per the amount
contained in the statements given by both the
parties, besides cancelling the difference in
expenses of the marriages of Ramasamy and
Kasilingam, and the marriage of one Ms.
Patharammal is to be performed from out of the
amounts from the share of both Kasilingam and
Marimuthan, on the statement made by
Kaslingam that a Minor Chain weighing about 3
his marriage and the same could not be traced
out, in spite of search, Kasilingam shall give the
expenses amounting to Rs.300/ in common.
4.It was RESOLVED that Marimuthan shall
conduct his marriage on his own from his share
and Marimuthan shall have no responsibility
towards either amounts receivable, payable or
loans concerning the common family.
34
5.It was RESOLVED that the PANCHAYATDARS
having decided that on the approval of
Kasilingam, Bangalore M. Sethuraman, for
having taken limestone valued at Rs.20,000/ in
regard to kiln for bricks, since Kasilingam
permitted the above person to take Rs.340/
(Rupees three hundred forty only) on his own
volition without the approval of his father, it was
RESOLVED that Kasilingam shall bear the said
sum of Rs.340/ from out of his pocket.
6.The school at Bangalore shall be valued for sale,
taking into account all the goods/things and
accessories available in the said school and the
said school shall be taken over either by
Ramasamy or Kasilingam depending upon the
one coming out successful in the paper token to
be tossed over and both of them agree to the
above proposal. The value of the said school has
been unanimously arrived at Rs.3,000/ (Rupees
three thousand only) by the Panchatdars. The
person who takes up the responsibility of the
said school shall pay the above sum of
Rs.3000/ to their father M. Periyayya with
liberty to be spent by him as he wishes, for his
personal use. It is RESOLVED by the
Panchayatdars, the three sons shall not have
any right over the aforesaid sum of Rs.3,000/.
7.It is further RESOLVED that the Savukkai
house along with the fenced compound shall be
given to Periyayya and to leave the two properties
viz one comprised in S.No.181/1 measuring 1.40
cent and another house comprised in giving him
the right to deal with the properties as he may
desire. It is also RESOLVED to give him a cart
and two bullocks for his use besides a cow for
meeting his requirement for milk.
8.In his statement Periyayya had stated that a
sum of Rs.1,000/ or land equal to its value
shall be given to his sister Lakshmi. We, the
Panchayatdars, have today RESOLVED that a
sum of Rs.1,000/ or land equal to its value
ought to be given to the said Lakshmi.
9.As is found in the statement that in order to give
a house to Karuvarividan of Sathamangalam, it
is RESOLVED that the lower layer of the first
farm shall be given to the above person. There is
no time for performing charitable activities for
the three partners. It has been decided that the
35
three shares in the same can hereafter be done
together under the supervision of Ramasamy.
10.As found in the statement of Sri Periyayya
Servai, wherein it has been written that
considering the value of all the Kalluppatti
properties at Rs.800/ shall be sold to his
daughter Segappi, it has been decided that the
said properties shall be sold for the above said
value itself and the said decision has been
endorsed by us, the Panchayatdars.
11.The house may be divided into two by using
coconut matai and shall be taken by Kasilingam
and Marimuthan. For the share going to
Marimuthan the vacant site also is to be added.
The Nattavali house shall be held and used in
common. It has been decided as above.
12.It has been RESOLVED as regards the common
family honour of Lance, that in line with the age
old customs, after the life time of Periyayya
Servai, his eldest Son, Ramasamy is considered
to be due for the said honour.
13.All the above have been unanimously
RESOLVED by us, the Panchayatdars.
PANCHAYATDARS
1. S. Appasamy Servai, Unchanai
2. Bhootha Thiru Muthaiyyan Servai,
Ethappadivayal
3. M. Muthiah Servai of Umbiyur
Iruppukkudi
4. Ana. Anamugappan
5. S.V. Durai Servai, Sathamangalam.
We have read the above RESOLUTIONS. We agree
with the above. We shall wholeheartedly obey the
above.
Sd/ M. Periyayya Servai
Sd/ Ramasamy
Sd/ Kasilingam
Resolution written by and I am also one of the
Panchayathars.
Sd/
(illegible)”
36
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 P10 (Ex. B13)
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. The said document was in the
nature of a document envisaged under section 17 (2) (v) of the
Act. For a better understanding of the same it would be useful to
refer to section 17 (1) (e) and 17 (2) (v) as under:
“17. Documents of which registration is
compulsory.—(l) The following documents shall
be registered, if the property to which they
relate is situate in a district in which, and if
they have been executed on or after the date on
which, Act No. XVI of 1864, or the Indian
Registration Act, 1866, or the Indian
Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or
comes into force, namely:—
xxx xxx xxx
(b) other nontestamentary instruments which
purport or operate to create, declare, assign,
37
limit or extinguish, whether in present or in
future, any right, title or interest, whether
vested or contingent, of the value of one
hundred rupees and upwards, to or in
immovable property;
xxx xxx xxx
(2) Nothing in clauses (b) and (c) of subsection
(l) applies to:—
xxx xxx xxx
(v) any document other than the documents
specified in subsection (1A) not itself creating,
declaring, assigning, limiting or extinguishing
any right, title or interest of the value of one
hundred rupees and upwards to or in
immovable property, but merely creating a right
to obtain another document which will, when
executed, create, declare, assign, limit or
extinguish any such right, title or interest.”
24. 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 creates a right to obtain another document of title. If a
document does not by itself create a right or interest in
immovable property, but merely creates a right to obtain another
38
document, which will, when executed create a right in the person
claiming relief, the former document does not require registration
and is accordingly admissible in evidence vide Ranjangam Iyer
v. Ranjangam Iyer, AIR 1922 PC 266.
25. In the instant case exhibit B13 award is more in the
nature of a memorandum of understanding, a mere agreement of
the steps to be taken in future for the division of the properties.
Hence, the said document did not require registration under
Section 17 (1) (b) of the Act as under the said document no
creation of rights in any specific joint family property was
effected. Hence the second limb of the contention of the appellant
is accordingly answered.
26. Thus, in our view the judgment in O.P. No. 7 of 1972 which
was a petition filed under Section 17 of the Arbitration Act, 1940
praying to receive the award passed by the arbitrators and to pass
a judgment thereon, wherein it was held that the award was not
registered as mandated under Section 17 (1) (b) of the Act and
hence could not be made a rule of the Court, is wholly incorrect.
In our view, the award was not a document of title to the property
hence it did not require registration. Therefore, the Order
dated 22
nd
August, 1975 passed in O.P. No. 7 of 1972 holding that
39
the award was inadmissible in evidence as it was not registered
and hence a decree could not be passed, is incorrect.
27. In our view, exhibit B13 did not require registration.
28.The next question that arises for our consideration is
whether, the finding of the first appellate court in A.S. No. 37 of
1993 that the suit properties were partitioned in the year 1964 is
binding on the parties and hence a fresh suit filed by the Plaintiff
seeking the very same relief was not maintainable. In A.S. No.37,
on considering the oral and documentary evidence on record it
was opined as under:
“From his evidence it is clear that there is a
partition in the year 1964 and the list of the
apportionment and they have also written a
Muchallikka before the panchayat. It is
undoubtfully known that since there was a joint
possession, the partition was effected to the
plaintiff’s 3 sons in 1964 by plaintiff by
accepting that the suit properties were joint
properties, it is not right on the part of the
plaintiff to claim that the properties are his
individual, selfacquired properties and it is
also unbelievable.”
This finding is sought to be questioned before us by placing
reliance on a judgment of the Apex Court in Asrar Ahmed v.
Durgah Committee, Ajmer , AIR 1947 PC 1 to contend that the
plea of res judicata does not arise in the instant case. We have
perused the same. Learned Counsel for the appellant placed heavy
reliance on this judgment contend that when a finding has been
40
given by a lower court based on sufficient evidence, if erroneous,
is not binding between the parties to the said proceeding on the
principle of res judicata. The said judgment is not applicable to
the present case.
29. Having regard to the fact that in the instant case there has
been no challenge to the finding of partition between the parties
till date and the same has attained finality we do not think that
the appellant can seek to rely on the judgment in Asrar Ahmed
(Supra). 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.
30.In this context, following judgments could be cited with
regard to the operation of the principles of res judicata in respect
to the previous proceeding and judgment:
a)In Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B.
Jeejeebhoy (AIR 1971 SC 2355) , it was observed as under:
“10. It is true that in determining the application of
the rule of res judicata the Court is not concerned
with the correctness or otherwise of the earlier
judgment. The matter in issue, if it is one purely of
fact, decided in the earlier proceeding by a competent
Court must in a subsequent litigation between the
41
same parties be regarded as finally decided and
cannot be reopened. A mixed question of law and fact
determined in the earlier proceeding between the
same parties may not, for the same reason, be
questioned in a subsequent proceeding between the
same parties. But, where the decision is on a
question of law i.e. the interpretation of a statute, it
will be res judicata in a subsequent proceeding
between the same parties where the cause of action is
the same, for the expression “the matter in issue” in
Section 11 of the Code of Civil Procedure means the
right litigated between the parties i.e. the facts on
which the right is claimed or denied and the law
applicable to the determination of that issue. Where,
however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision of
the Court sanctioning something which is illegal, by
resort to the rule of res judicata a party affected by
the decision will not be precluded from challenging
the validity of that order under the rule of res
judicata, for a rule of procedure cannot supersede the
law of the land.”
b)In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR
1953 SC 65), the second round of litigation was admittedly
in respect of same property and between the same parties,
after the earlier litigation had attained finality even up to the
stage of execution. It was held that later on the judgment
debtor was precluded from raising the plea of jurisdiction in
view of principles of constructive res judicata. In Paragraph
23 it was as under :
““23. There is ample authority for the proposition that
even an erroneous decision on a question of law
operates as ‘res judicata’ between the parties to it.
The correctness or otherwise of a judicial decision
has no bearing upon the question whether or not it
operates as ‘res judicata.”
42
c)In State of West Bengal v. Hemant Kumar Bhattacharjee
(AIR 1966 SC 1061), the main issue related to the Special
Court to try a Criminal offence, in asmuch as an incorrect
decision cannot be equated with a decision rendered without
jurisdiction. Even a wrong decision can be superseded only
through appeals to higher tribunals or Courts or through
review, if provided by law.
31. We accordingly hold 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 herein. We
have no reason to interfere with the impugned judgment.
The appeal is accordingly dismissed.
Having regard to the relationship between the parties, they
shall bear their own costs.
……………………………..J.
[L. NAGESWARA RAO]
…………………………….J.
[B.R. GAVAI]
……………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
27
TH
JANUARY, 2022.
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