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 onefourth 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 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 appellantplaintiff.
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 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 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. [Para 24][720-A-D]
3. In the instant case exhibit B-13 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. [Para 25][720-D-E]
3. 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. This Court does not think that the appellant can seek to rely on the judgment in Asrar Ahmed. 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. This Court holds 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. The appeal is accordingly dismissed. [Paras 29 & 31][721-E-F; 723-B]
Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3 SCR 639 - held inapplicable.
Mohanlal Goenka v. Benoy Kishna Mukherjee AIR 1953 SC 65 : [1953] SCR 377; State of West Bengal v. Hemant Kumar Bhattacharjee AIR 1966 SC 1061:
[1963] Suppl. SCR 542; Satish Kumar and Ors. v. Surinder Kumar and Ors. [1969] 2 SCR 244; Champalal vs. Mst. Samarth Bai [1960] 2 SCR 810; Kashinathsa Yamosa Kabadiv. Narsinga Bhaskarsa Kabad [1961]
3 SCR 792; Kale and Ors. v. Deputy Director
of consolidation [1976] 3 SCC 119 : [1976] 3 SCR 202; Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy AIR 1971 SC 2355 : [1970] 3 SCR 830; Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors. [2020] 9 SCC 706 Ripudaman Singh v. Tikka Maheshwar Chand [2021] 7 SCC 446 – relied on.
Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3 SCR 639 12; Satish Kumar and Ors. v. Surinder Kumar and Ors. [1969] 2 SCR 244; Lachhman Dass v. Ram Lal [1989] 3 SCC 99 12 : [1989] 2 SCR 250; Kale and Ors. v. Deputy Director of Consolidation [1976] 3 SCC
119 : [1976] 3 SCR 202; Bhoop Singh v. Ram Singh Major and Ors. [1995] 5 SCC 709 : [1995] 3 Suppl. SCR 466 16; Ravinder Kaur Grewal and Ors. v. Manjit Kaurand Ors. [2020] 9 SCC 706; Ripudaman Singh v. Tikka Maheshwar Chand [2021] 7 SCC 446; Lachhman Dass v. Ram Lal [1989] 3 SCC 99 : [1989] 2 SCR 250; Ratan Lal Sharma v. Purushottam Harit [1974] 3 SCR 109; Bhoop Singh v. Ram Singh Major and Ors. [1995]
5 SCC 709 : [1995] 3 Suppl. SCR 466; Nanni Bai v Gita Bai [1959] 1 SCR 479 – referred to.
Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947 PC 1; Ramaswamy Ayyar and Anr. v. Tirpathi Naik ILR
27 Mad 43; Ranjangam Iyer v. Ranjangam Iyer AIR 1922 PC 266 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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