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2004 S C M R 515

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ

DOST MUHAMMAD and others---Petitioners

versus

GHAUS MUHAMMAD through Legal Heirs and others---Respondents

Civil Petition No. 1503-L of 2000, decided on 27th May, 2003.

(On appeal from the judgment dated 16-5-2000 of the Lahore High Court passed
in Civil Revision No. 1918 of 1983).

(a) Arbitration Act (X of 1940)---

----Ss.17 & 21---Constitution of Pakistan (1973), Art.185(3)---Award made rule of


Court---Father (defendant) transferred suit-land by way of family settlement to
all his heirs from both wives---Some children (plaintiffs) later on claiming
suit-land to have been gifted to them by father (defendant) filed against him suit,
wherein they obtained award, which was made rule of Court with, consent of
father---Courts below in a subsequent suit filed by other heirs refused to give
effect to such award---Validity---Other heirs were neither made party in previous
suit, wherein arbitration had taken place nor they had been even heard before
making award rule of Court---If father, as had been found by Courts below, had
already transferred suit-land by way of family settlement to his heirs from both
wives, then he had ceased to be owner thereof--Proceedings in previous suit
appeared to be not bona fide, but collusive---Alleged gift if any, made by father,
had been proved, would no effect upon previous disposal on basis of which,
parties had become owners of suit-land---Supreme Court dismissed petition and
refused leave to appeal.

(b) Transfer of Property Act (IV of 1882)----

--Ss.1 & 54---Registration Act (XVI of 1908), Ss.17 & 49--Agricultural land
situated in areas in Punjab not falling within municipal limits---Oral sale or
disposal of such land by way of family settlement without registered
deed---Validity---Provision of S.54 of Transfer of Property Act, 1882 not made
applicable to such areas in Punjab---Disposal of such land in such manner would
not be open to any legal objection.

Raja Mehmood Akhtar,' Advocate Supreme Court and Mehmudul Islam for
Petitioners.

Date of hearing: 27th May, 2003.

JUDGMENT

MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated


16-5-2000 of the Lahore High Court through which revision petition filed by the
petitioners has been dismissed.

2. Hafiz Muhammad Hussain, deceased predecessor-in-interest of the parties


was the owner of the land in dispute who during his life time transferred the
same to the children from his two wives in specific share which according to
Mohammedan Law would have inherited by them. The present petitioners
appear to have filed a suit against Hafiz Muhammad Hussain, their father

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alleging that he had gifted the land in its entirety to them which dispute was
referred to the arbitration of Nazar Muhammad who delivered award and the
present petitioners were declared to be owners on the basis of the said alleged
gift. Hafiz Muhammad Hussain made statement before the Court where the said
suit in which reference was made to arbitration was pending that he had no
objection if the said award was made rule of the Court upon which the said
Court passed order accordingly on 25-7-1978.

3. Learned counsel for the petitioners attempted to argue that in view of the said
award having been made rule of the Court, the petitioners should have been
declared as owners of the land in the present proceedings.

4. Learned counsel when questioned admitted that the respondents were neither
made party in the said previous suit in which arbitration took place nor they
were even otherwise heard before the award was made rule of the Court. If Hafiz
Muhammad Hussain as has been found by the Courts below had already
transferred the property by way of family settlement to his heirs from both the
wives, he ceased to be the owner thereof, therefore, any gift allegedly made by
him even if has been proved would be of no effect upon the previous disposal on
the basis of which the parties had become the owners of the disputed land apart
from the fact that the proceedings in the said suit in which arbitration was made
appear to be not bona fide but collusive.

5. Learned counsel for the petitioners submitted that Hafiz Muhammad Hussain
by way of family settlement could not orally transfer the land to his heirs from
the two wives except through document which should have been registered
under the Registration Act. When questioned, he admitted that the land in
dispute is agricultural and is not situated within the limits of Municipal
Committee or Town Committee and the provisions of Transfer of Property Act
requiring sale of immovable property of the value of. Rs.100 to be made through
written sale-deed duly registered had not been made applicable to such areas in
Punjab which are not within the municipal limits regarding disposal of
agricultural land, therefore, disposal of the same by way of family settlement by
Hafiz Muhammad Hussain was not open to any legal objection.

6. The judgments impugned in this petition of the Courts below do not suffer
from any illegality, therefore, this petition has no merits which is accordingly
dismissed and leave refused.

S.A.K./D-41/S Leave refused.

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2004 S C M R 126

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J. and Javed Iqbal, J

ANWAR KHAN--Petitioner

Versus

ABDUL MANAF---Respondent

Civil Petition No. 10-Q of 2002, decided on 18th September, 2003.

(On appeal from the judgment dated 7-12-2001 of the High Court of Balochistan,
Quetta, passed in F. A. O. No. 176 of 2000).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----

----S. 13---Registration Act (XVI of 1908). Ss.17 & 49---Ejectment petition---


Ancestral property---Partition of such property by way of family arrangements
by means of settlement/agreement---Non registration of such document---
Effect---Registration of such document not compulsory---Ownership, in absence
of registration, can devolve upon landlord as one of the legal heirs and he can file
ejectment petition.

Kora Mal v. Fazal Ali AIR 1934 Lah. 759; Velusami v. Velusami AIR 1962 Mad.
153; Sher Ali Khan v. Zarnaush 1994 MLD 2458 and Abdul Jelani v. Mst. Janat
Bibi 1999 MLD 3331 ref.

Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182 rel

(b) Registration Act (XVI of 1908)---

----S. 17---Partition of property by way of family arrangements by means of


agreement---Not compulsorily registerable---Principles.

If the parties are not interested in partition of property on permanent transfer


basis, they cannot be forced or compelled to do so as it depends upon their
whims and wishes to distribute the property in any manner as may be deemed
fit and proper by them being their personal and family affair. In such
eventuality, the question of registration of such agreement does not arise.

Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182 rel.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----

----S. 13---West Pakistan General Clauses Act (VI of 1956), S.12(2)--Joint property
---Ejectment petition by one co-owner without joining or obtaining written
permission from other co-owners.----Competency.--Principles.

Ejectment application can be moved by one landlord and it is not essential for
him to obtain permission in writing from his co landlords/co-owners as he has
locus standi to file ejectment along being co-owner.

The provisions as contained in section 12(2) of the West Pakistan General Clauses
Act, 1956 also provides that the term "landlord" also covers a case where several
persons are joint owners or landlords within the meaning of the definition of
landlord.

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There is no cavil with the proposition that anyone of the co-sharers of the
property can file ejectment application against the tenant and similarly any co-
owner can also file such application.

Khalique Ahmed v. Abdul Ghani PLD 1973 SC 214; Nek Muhammad v.


Muhammad Shafi 1983 SCMR 180 and Ghulam Rasul v. Bakhtawar 1981 SCMR
193 rel.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----

----S. 13---Ejectment petition---Partition of property between owners/landlords---


Tenant's right to raise objection regarding such partition or the manner in which
same was so made---Validity---Question of title has no relevancy in proceedings
in rent cases, wherein pivotal point requiring determination would be
relationship of landlord and tenant---Tenant has absolutely no legal right to raise
such objection--Such objection would hove no substantial effect on factum of his
tenancy and his status would remain as tenant.

Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli,


Advocate-on-Record (absent) for Petitioner.

Jamal Khan Mandokhail, Advocate Supreme Court and Mir Aurangzaib,


Advocate-on-Record for Respondent.

Date of hearing: 18th September, 2003.

ORDER

JAVED IQBAL, J.---This petition for leave to appeal is directed against the
judgment dated 7-12-2001 passed by learned High Court of Balochistan, Quetta,
whereby the appeal preferred on behalf of respondent-landlord has been partly
accepted and the case was remanded to the learned Rent Controller for the
determination of Issues Nos.3 and personal requirement of the respondent-
landlord.

2. Precisely stated the facts of the case are that pursuant to family settlement all
the co-owners entered into agreement (Exh.A/1) whereby the shop in question
fell into the share of Abdul Manaf (respondent landlord) and his two brothers
namely Musa Jan and Agha Jan and nephews namely Suleman and Abdul
Rehman sons of Bismillah. Pursuant to the agreement (Exh.A/1) executed
between the parties a legal notice was issued to the petitioner apprising him
about the partition of the property and eviction was also sought on account of
personal bona fide use of the respondent-landlord. The eviction application was
contested and the divergent pleadings of the parties gave rise to the following
issues:--

"(i) Whether the application is not maintainable in view of preliminary


objections 'A' and 'B' of written statement?

(ii) Whether the applicant has become the owner of the premises by means of
agreement/partition deed?

(iii) Whether the applicant needs this shop in good faith for his personal use
to start his own business in the same?

(iv) Whether the applicant is entitled for relief claimed for?

(v) Relief?"

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3. After recording the evidence pro and contra the learned Rent Controller
dismissed the eviction application by means of judgment dated 27-9-2000. Being
aggrieved an appeal was preferred by the respondent landlord which has partly
been accepted and case remanded to learned Rent Controller to determine Issues
Nos.3 and 4 concerning the personal requirement of respondent-landlord, hence
this petition.

4. It is vehemently urged by Mr. Basharatullah, learned Senior Advocate


Supreme Court on behalf of petitioner that factum of partition could not be
proved by the respondent-landlord by adducing cogent and concrete evidence
which aspect of the matter has been ignored by the learned Single Judge of High
Court of Balochistan which resulted in serious miscarriage of justice as the
property in question was not devolved either upon the respondent-landlord or
other co-owners. It is also contended that the family settlement/agreement
(Exh.A/1) was not got registered hence it has no legal sanctity whatsoever and
even it cannot be looked into for collateral purposes. It is argued that the
document (Exh.A/1) being unregistered does not confer any right or title to the
respondent-landlord and thus no eviction application could have been filed by
him. In order to substantiate the above mentioned contentions reliance has been
placed on cases titled Kora Mal v. Pazal Ali AIR 1934 Lahore 759, Velusami v.
Velusami AIR 1962 Madras 153, Sher Ali Khan v. Zarnaush 1994 MLD 2458,
Abdul Jelani v. Mst. Janat Bibi 1999 MLD 3331. Mr. Basharatullah learned Senior
Advocate Supreme Court has taken serious exception to the non-registration of
the partition deed (Exh.A/1).

5. We have carefully examined the contentions as agitated on behalf of petitioner


in the light of relevant provisions of law and record of the case. We have perused
the judgment dated 27-9-2000 passed by learned Rent Controller, Quetta as well
as the judgment impugned. We have thoroughly scanned the entire evidence
which has come on record. We are not persuaded to agree with Mr.
Basharatullah, learned Senior Advocate Supreme Court that the partition of
property by way of family arrangement by means of settlement/agreement
(Exh.A/1) dated 19-4-2000 is compulsorily registrable and in absence of
registration the ownership could not have been devolved upon the respondent-
landlord and eviction application could not have been filed by him having no A
locus standi simply for the reason that such family settlement is saved from
inadmissibility in evidence due to the elimination of sub-clause (c) from section
49 of the Registration Act and the prohibition contained in section 49 would no
longer be operative. A careful perusal of partition document (Exh.A/1) executed
between the parties would reveal that the property has been distributed by way
of family arrangements. If the parties are not interested in partition of property
on permanent transfer basis they cannot be forced or compelled to do so as it
depends upon their whims and wishes to distribute the property in any manner
as may be deemed fit and proper being their personal and family affair. In such
an eventuality the question of registration of such agreement, does not arise. If
any authority is required reference can be made to case titled Jahanzeb and
others v. Muhammad Abbas 1999 SCMR 2182.

6. We have also adverted to the second limb of the argument as I advanced by


Mr. Basharatullah learned Senior Advocate Supreme Court on behalf of
petitioner that in absence of registration of agreement (Exh.A/1) the respondent-
landlord has no locus standi to file the eviction application which appears to be
without any substance because ejectment "C application can be moved by one
landlord and it is not essential for him to obtain permission in writing from his
co-landlord-co-owners as he has locus standi to file ejectment application alone
being co-owner. In this regard we are fortified by the dictum laid down in case
titled Khalique Ahmed v. Abdul Ghani PLD 1973 SC 214. It is not the case of Mr.
Basharatullah, learned Senior Advocate Supreme Court that respondent landlord
is a stranger having no concern whatsoever with the ancestral property which
admittedly devolves upon all the legal heirs and respondent-landlord is one of
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them. It is worth mentioning here at this the question of title has no relevancy in
the proceedings in as the pivotal point needs determination would be the
relationship of landlord and tenant which would be the only determining factor
because a tenant has absolutely no legal right to raise any objection regarding the
partition of property or the manner in which it was so made as it would have no
substantial effect on the factum of his tenancy and his status would remain as
tenant. The provisions as contained in section 12(2) of the West Pakistan General
Clauses Act, 1956 also provides that the term 'landlord' also covers a case where
several persons are jointly owners or landlords within the meaning of the
definition of landlord. If any authority is required reference can be made to case
titled Nek Muhammad v. Muhammad Shafi 1983 SCMR 180. There is no cavil
with the proposition that anyone of the co-sharer of the property can file
ejectment application against the tenant and similarly any co-owner can also file
such application. Ghulam Rasul v. Bakhtawar 1981 SCMR 193.

7. The question as to whether the shop in question is required by the respondent-


landlord for personal bona fide need, requires determination and this case has
rightly been remanded to the learned Rent Controller for doing the needful. The
authorities cited by Mr. Basharatulah, Senior Advocate Supreme Court being
distinguishable are not applicable in this case. The judgment impugned being
well based and unexceptionable hardly warrants any interference. The petition
being merit less-is dismissed and leave refused.

S.A.K./A-444/S Leave refused.

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2003 Y L R 362

[Lahore]

Before Farrukh Lateef, J

ABDUL GHAFFAR---Petitioner

Versus

BASHIR AHMAD and others---Respondents

Civil Revision No. 958-D of 2002, decided on 23rd October, 2002.

(a) Civil Procedure Code (V of 1908)---

----O.XX, R. 18(2)---Registration Act (XVI of 1908), Ss. 17 & 49---Partition suit---


Defendant's plea was that private partition had already been effected between
previous owners through partition deed, thus, plaintiffs being
successor-in-interest of previous owner were bound by such private
partition---Trial Court after recording evidence passed preliminary decree, which
was upheld by Appellate Court ---Validity--Authenticity of partition deed had
not been proved---Same being an unregistered agreement of partition would not
operate to create any right or title---Record did not show that such agreement
had ever been acted upon or given effect to---Defendant being not party to such
agreement was not bound by the same---Such agreement at the most could be
deemed as an agreement regarding family arrangement or private settlement,
but not a deed of partition---Half share of plaintiff in joint property had not been
denied---Defendant was not entitled to retain possession of more than his half
share---Concurrent findings of Courts below that actual partition between parties
had not been proved, were based on evidence and sound reasoning, which could
not be disturbed in revisional jurisdiction---High Court dismissed revision
petition in circumstances.

(b) Partition possession---

----Hissadari possession by way of family settlement would not amount to


ultimate partition.

Malik Sharif Ahmad for Petitioner.

Muhammad Naveed Hashmi for Respondent.

Date of hearing 23rd October, 2002.

JUDGMENT

Bashir Ahmad and two others (respondents in the civil revision) had filed a suit
against Abdul Ghaffar (petitioner in civil revision) for partition of Property No.
82, present 189/1, measuring 6 Marlas 3 Sarsahi situated in Chak No. 439/EB,
Tehsil Burewala,

2. Precisely their case was that they are owners of 1/2 share i.e. 3 Kanals 1-1/2
Sarsahi in the suit property by virtue of registered sale-deed, dated 20-12-1990,
(Exh. P.1) whereas defendant was the owner of the remaining one-half share but
at the spot they are in possession of 2 Marlas 1-1/2 Sarsahi whereas defendant is
in possession of 4 Marlas 1-1/2 Sarsahi i.e. 1 Marla over and above his
entitlement. Prayer in the said suit was for partition of the said joint property, by
metes and bounds according to the shares of the parties.

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3. The suit was contested by the defendant who in his written statement did not
deny half share of the plaintiffs but resisted the partition by metes and bounds
on the ground that the private partition had already been effected between the
previous owners through partition deed Exh. D.1, the plaintiffs being
successor-in-interest of the vendor Hakim Ali (previous owner) were bound by
that private partition and their suit was, therefore, not competent.

4. On the pleadings of the parties issues were framed, evidence was recorded and
ultimately vide judgment, dated 20-10-2000 a preliminary decree for partition
was passed by the learned trial Court in favour of the plaintiffs.

5. Defendant's appeal against that preliminary decree was dismissed by


Additional District Judge, Burewala on 4-6-2002. Both the aforesaid judgments
and decrees are assailed in the civil revision by the defendant.

6. Petition is opposed by the learned counsel for the respondents. Arguments


heard, revision petition and the Annexures appended therewith perused.

7. At the very outset it may be observed that learned counsel for the petitioner
has assailed the findings of the Courts below only on Issues Nos. 1 and 3; finding
of trial Court on the rest of the issues were not pressed before the Appellate
Court nor they are challenged before this Court.

8. Issues Nos. 1 and 3 are reproduced as under:-

Issue No. 1

Whether the plaintiffs are estopped by their conduct and act to file this
suit against the defendant?

Issue No.3

Whether the plaintiffs are entitled to the decree for possession through
partition of the land in accordance with averments of the plaint?

9. Learned counsel for the petitioner argued that on Issues Nos. 1 and 3 findings
of both the Courts below are erroneous because while deciding these issues, both
the Courts were unmindful that under Article 114 of Qanun-e-Shahadat Order,
1984 the respondents were estopped to claim partition because from partition
deed Exh. D.1, it stood proved that a private partition of the joint property had
already taken place between the previous owners Hakim Ali and Mal Din and
respondents being successors-in-interest of Hakim Ali were bound by that
arrangement and were thus estopped to claim partition.

10. I am not inclined to agree with the above contention for the reasons that a
perusal of the impugned judgments reveals that while dealing with Issue No.1,
both the Courts below were mindful of the said legal objection raised by the
petitioner and their finding that actual partition between the previous owners
was not proved, is based ors evidence and sound reasoning after having
examined and assessed the evidence available on record. From a perusal of the
evidence authenticity of partition deed was not proved. It was an unregistered
agreement of partition it was not established that it was ever acted upon or given
effect to. Being an unregistered document, it did not operate to create any right
or title. Apart from that respondents were admittedly not a party to that
agreement Exh. D.1, hence they were not bound by it. At the most the said
document could be deemed as an agreement regarding family arrangement or
private settlement but certainly not a deed of partition. It is worth notice that in
the written statement, half share of the plaintiffs in the joint property was not
denied and during his cross-examination the petitioner (defendant in the suit)
admitted that Hiba made in his favour in respect of the joint property was in

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respect of 3 Marlas and 1-1/2 sarsahi (i.e. half share). Since he himself admits
that half share in the suit property was gifted to him he has no right to retain
possession of more than that. It is well-settled that Hissadari possession by way
of family settlement does not amount to ultimate partition.

11. For the foregoing reasons, concurrent findings of the two Courts below on
Issues Nos. 1 and 3 which were recorded after examining and assessing the
evidence, which are based on sound and plausible reasoning cannot be disturbed
in revisional jurisdiction. Petition dismissed.

S.A.K./A-660/L Petition
dismissed

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2003 M L D 140

[Lahore]

Before Muhammad Sair Ali, J

WALID-BIN-NAWAZ and others---Appellants

Versus

Malik MUHAMMAD AKRAM and others---Respondents

Regular Second Appeal Nos.44 and 45 of 1996, heard on 14th February, 2002.

(a) Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Registration Act (XVI of 1908), S.17---Stamp Act (II of 1899), S.35 &
Sched. Item No.45---Suit for possession and cancellation of document---Plaintiff
claimed to be the owner of certain plots on the basis of partition document of
1965 and mutation entered in 1972 incorporating division of land into numerous
plots between plaintiff and other co-sharers---Trial Court decreed suit, which
was upheld by Appellate Court---Contention of defendants was that partition
document being on deficient stamp paper of Rs.2 and unregistered could not
have been admitted in evidence and could not have become the basis of transfer
of rights and interests to plaintiff-Validity---None of the parties had denied that
partition document/family settlement and such mutation had been acted upon,
implemented and completed as, back as in 1965, though mutation had been
entered in 1972--None of beneficiaries of such partition/family settlement had
ever disputed partition document as inadmissible or invalid---Land purchased
by defendants was in the shape of plots (though described . in sale-deed as part
of bigger Khasra No.1, which were under a scheme floated and incorporated
even before partition of the property between original co-owners--Defendants
having taken land in shape of plots (though without mentioning plots Nos. in
sale-deed) could not be allowed to turn around and challenge entire scheme or
partition documents/family settlement on the basis of which respective rights of
co-owners had been defined and they had been put in possession---Defendants
had not disputed the fact that they had been transferred land falling in share of
late defendant (co-owner/vendee) long time after partition/family settlement
and induction of late defendant and others into their respective parcel of land
through effective implementation of partition document and
mutation---Document of partition in - fact and in essence had implemented
pre-agreed scheme and division of property between parties---Such kind of
document was not compulsorily registrable and did not bear deficient stamp
duty---High Court dismissed appeal in circumstances.

(b) Registration Act (XVI of 1908)---

----S.17---Stamp Act (II of 1899), S.35 & Sched., Item No. 45---Un-registered
document of family settlement being on stamp paper of Rs.2---Validity---Such
document in fact and in essence implemented pre-agreed scheme and division of
property between the parties---Such kind of document was not compulsorily
registrable and did ,not bear deficient stamp duty.

Kh. Muhammad Akram for Appellant.

A.D. Naseem for Respondents Nos. 1 and 2.

Sardar Muhammad Farooq for Respondent No.3.

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Date of hearing: 14th February, 2002.

JUDGMENT

This judgment shall deal with and decide Regular Second Appeal No.44 of 1996
and Regular Second Appeal No.45 of 1996, as common controversy is involved
therein.

2. Suit brought by Mst. Janat Bibi (predecessor-in-interest of respondents Nos. 1


and 2) against Ilqbal Begum (predecessor-in-interest of appellants/defendants)
and Zulfiqar Ali (respondent No.3/defendant) for possession and cancellation of
document was decreed by the learned Civil Judge on 18-3-1990. Appeal filed
there against was also dismissed by the then learned Additional District Judge,
Lahore by judgment and decree dated 30-1-1996, hence the present second
appeal.

3. Learned counsel for the appellants contended that the entire case of
respondents Nos. 1 and 2 plaintiffs was structured upon partition documents of
1965 (Exh.P-1) and Mutation No.5520 dated 22-12-1972 (Exh.P.2) to, show that
the joint Khata was divided and partitioned between '/2 share of Mst. Janat Bibi
and ½ share for the deceased predecessor-in-interest of respondents Nos. 1 and 2
and other share-holders/co-owners of the Khata. It was also contended that Mst.
Janat Bibi claimed the suit-land comprised in Plots Nos.51 and 51-A of the
relevant scheme on the basis of above partition and bifurcation into numerous
plots of the scheme including Plots No.51 and 51A, which, according to the
plaintiffs, did not fall within the land sold to Zulfiqar Ali, respondent No. 3 from
whom Iqbal Begum (predecessor-in-interest of appellants) purchased suit-land
through a sale-deed (Exh.P.15). And that the partition document (Exh.P.1) being
on deficient stamp paper of Rs.2 and unregistered could not have been admitted
in evidence and could not, therefore, have become the basis of transfer of
interests and rights to the deceased plaintiff.

Contrarily, learned counsel for the respondents supported the impugned


judgments and decrees.

4. I have considered the contentions of the learned counsel for the parties and
have also examined the record. The factual controversy involved in the present
case was settled by the learned subordinate Courts through concurrent findings
recorded in the impugned judgments and decrees. For the contextual purposes,
the conclusions of facts rendered by the learned Additional District Judge in
paras. 8 and 9 of impugned judgment and decree dated 31-1-1996 are reproduced
hereunder:--

8. "From the other side, D.W.1 Walia deposed that Mst. Iqbal Begum
defendant No.1 is his real mother and he is her Special Attorney. He
produced the deed of special power of attorney as Exh.D.1. He stated that
the disputed property was purchased by defendant No.1 and the vendor
had delivered the possession to her. He produced the sale-deed Exh.D.2
and stated that a mutation had also been entered. He produced copies of
record of rights as Exh.D.3 and Exh.D.4. He deposed that they had
constructed two rooms. He further stated that at the site there was no
sanctioned scheme nor any plot had been carved out. He stated that they
were not aware about the private partition effected between the co--
sharers. He stated that no body had told them anything about the scheme
and that they had satisfied themselves after enquiring from Patwari. He
stated that vide sale-deed Exh.D.5 Saadat Begum had transferred the
property to defendant No.2.

9. The defendants have been unable to produce any convincing evidence


to rebut the claim of the plaintiffs. Defendant No.1 admitted in the course
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of cross-examination that it is possible, that Saadat Begum had sold to
Zulfiqar Ali (defendant No.2) Plots Nos.44, 45 and 48. From the document
Exh. D-5 which is a sale-deed executed by Mst. Saadat Begum in favour of
Mian Zulfiqar Ali, it appears that she had sold Plots Nos.44, 45 and 48 to
him. On the basis of the said document Zulfiqar Ali could not claim to be
the owner of `Plots Nos.51 and 51A. Consequently, he could not sell Plots
Nos.51 and 51-A as he was not the owner of the said plots. There is no
dispute that the property was previously joint between different owners
and the same had the same Khasra numbers. However after the partition
the said land was carved out in the form of plots and defendant No.2 had
purchased Plots Nos.44, 45 and 48 from Saadat Begum and so he had the
authority to dispose of the said plots but not Plots Nos.51 and 51-A. On
the basis of the evidence produced by the plaintiffs it is clear that they are
the owners of disputed Plots Nos.51 and 51-A. The defendants have not
been able to produce any convincing evidence in rebuttal on this issue.
The learned trial Court had rightly decided Issue No.4 in favour of the
plaintiffs. As such the findings of the learned trial Court on this issue is
accordingly affirmed."

5. The main thrust of the contentions of the learned counsel for the appellants
was that the partition document being on deficient stamp paper and
unregistered could not be taken to have become basis of transfer of rights or
interests in the land falling in the share of Mst. Janat Bibi; plaintiff and was not
admissible in evidence and for that reason, mutation incorporating partition of
the land was also illegal and cannot be read as evidence of rights of the parties. It
has been denied by any of the parties that Exh.P.1 (partition documents family
settlement) and Exh.P.2 (mutation) incorporating the division of land between
original plaintiff Mst. Janat Bibi and other co-sharers, was acted upon,
implemented and completed as back as in 1965, though the mutation was
entered in 1972. None of the beneficiaries of this partition or family settlement
ever disputed the document as inadmissible or invalid. The suit-land was
purchased by Zulfiqar Ali through Exh.P.14 in 1967 and from whom the suit
property was purchased by the appellants through sale-deeds of. 1967. The
appellants were thus A 3rd transferees of the suit property which admittedly was
in the shape of plots (though in sale-deed it was described as part of a bigger
Khasra No.) and the plots were under a scheme floated and incorporated even
before the partition was made between the original co-owners. Having taken
land in shape of plots (though without mentioning the plots Nos. in sale-deed),
appellants cannot be allowed to turn around and challenge the entire scheme or
partition document/family settlement on the basis of which respective rights of
the co-owners/co-sharers were defined and they were put in possession.
Appellants did not dispute the fact that they had been transferred land falling
within the share of late Iqbal Begum and co-owners long time after the said
partition/family settlement and induction of Iqbal Begum and others into their
respective parcel of land through effective implementation of Exh.P.l and
Exh.P.2. The grounds raised have thus become irrelevant after implement of said
documents.

Furthermore, Exh.P.1 was a document of family settlement which, in fact and in


essence, implemented a pre-agreed scheme and division between the parties.
Wherefore, I, am inclined to hold that this was not a kind of document which
was compulsorily registrable and bore deficient stamp paper.

6. In view of the above, the appeals are dismissed with no order as to costs.

S.A.K./W-57/L Appeals dismissed.

3 of 4
2003 M L D 140

[Lahore]

Before Muhammad Sair Ali, J

WALID-BIN-NAWAZ and others---Appellants

Versus

Malik MUHAMMAD AKRAM and others---Respondents

Regular Second Appeal Nos.44 and 45 of 1996, heard on 14th February, 2002.

(a) Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Registration Act (XVI of 1908), S.17---Stamp Act (II of 1899), S.35 &
Sched. Item No.45---Suit for possession and cancellation of document---Plaintiff
claimed to be the owner of certain plots on the basis of partition document of
1965 and mutation entered in 1972 incorporating division of land into numerous
plots between plaintiff and other co-sharers---Trial Court decreed suit, which
was upheld by Appellate Court---Contention of defendants was that partition
document being on deficient stamp paper of Rs.2 and unregistered could not
have been admitted in evidence and could not have become the basis of transfer
of rights and interests to plaintiff-Validity---None of the parties had denied that
partition document/family settlement and such mutation had been acted upon,
implemented and completed as, back as in 1965, though mutation had been
entered in 1972--None of beneficiaries of such partition/family settlement had
ever disputed partition document as inadmissible or invalid---Land purchased
by defendants was in the shape of plots (though described . in sale-deed as part
of bigger Khasra No.1, which were under a scheme floated and incorporated
even before partition of the property between original co-owners--Defendants
having taken land in shape of plots (though without mentioning plots Nos. in
sale-deed) could not be allowed to turn around and challenge entire scheme or
partition documents/family settlement on the basis of which respective rights of
co-owners had been defined and they had been put in possession---Defendants
had not disputed the fact that they had been transferred land falling in share of
late defendant (co-owner/vendee) long time after partition/family settlement
and induction of late defendant and others into their respective parcel of land
through effective implementation of partition document and
mutation---Document of partition in - fact and in essence had implemented
pre-agreed scheme and division of property between parties---Such kind of
document was not compulsorily registrable and did not bear deficient stamp
duty---High Court dismissed appeal in circumstances.

(b) Registration Act (XVI of 1908)---

----S.17---Stamp Act (II of 1899), S.35 & Sched., Item No. 45---Un-registered
document of family settlement being on stamp paper of Rs.2---Validity---Such
document in fact and in essence implemented pre-agreed scheme and division of
property between the parties---Such kind of document was not compulsorily
registrable and did ,not bear deficient stamp duty.

Kh. Muhammad Akram for Appellant.

A.D. Naseem for Respondents Nos. 1 and 2.

Sardar Muhammad Farooq for Respondent No.3.

1 of 1
Date of hearing: 14th February, 2002.

JUDGMENT

This judgment shall deal with and decide Regular Second Appeal No.44 of 1996
and Regular Second Appeal No.45 of 1996, as common controversy is involved
therein.

2. Suit brought by Mst. Janat Bibi (predecessor-in-interest of respondents Nos. 1


and 2) against Ilqbal Begum (predecessor-in-interest of appellants/defendants)
and Zulfiqar Ali (respondent No.3/defendant) for possession and cancellation of
document was decreed by the learned Civil Judge on 18-3-1990. Appeal filed
there against was also dismissed by the then learned Additional District Judge,
Lahore by judgment and decree dated 30-1-1996, hence the present second
appeal.

3. Learned counsel for the appellants contended that the entire case of
respondents Nos. 1 and 2 plaintiffs was structured upon partition documents of
1965 (Exh.P-1) and Mutation No.5520 dated 22-12-1972 (Exh.P.2) to, show that
the joint Khata was divided and partitioned between '/2 share of Mst. Janat Bibi
and ½ share for the deceased predecessor-in-interest of respondents Nos. 1 and 2
and other share-holders/co-owners of the Khata. It was also contended that Mst.
Janat Bibi claimed the suit-land comprised in Plots Nos.51 and 51-A of the
relevant scheme on the basis of above partition and bifurcation into numerous
plots of the scheme including Plots No.51 and 51A, which, according to the
plaintiffs, did not fall within the land sold to Zulfiqar Ali, respondent No. 3 from
whom Iqbal Begum (predecessor-in-interest of appellants) purchased suit-land
through a sale-deed (Exh.P.15). And that the partition document (Exh.P.1) being
on deficient stamp paper of Rs.2 and unregistered could not have been admitted
in evidence and could not, therefore, have become the basis of transfer of
interests and rights to the deceased plaintiff.

Contrarily, learned counsel for the respondents supported the impugned


judgments and decrees.

4. I have considered the contentions of the learned counsel for the parties and
have also examined the record. The factual controversy involved in the present
case was settled by the learned subordinate Courts through concurrent findings
recorded in the impugned judgments and decrees. For the contextual purposes,
the conclusions of facts rendered by the learned Additional District Judge in
paras. 8 and 9 of impugned judgment and decree dated 31-1-1996 are reproduced
hereunder:--

8. "From the other side, D.W.1 Walia deposed that Mst. Iqbal Begum
defendant No.1 is his real mother and he is her Special Attorney. He
produced the deed of special power of attorney as Exh.D.1. He stated that
the disputed property was purchased by defendant No.1 and the vendor
had delivered the possession to her. He produced the sale-deed Exh.D.2
and stated that a mutation had also been entered. He produced copies of
record of rights as Exh.D.3 and Exh.D.4. He deposed that they had
constructed two rooms. He further stated that at the site there was no
sanctioned scheme nor any plot had been carved out. He stated that they
were not aware about the private partition effected between the co--
sharers. He stated that no body had told them anything about the scheme
and that they had satisfied themselves after enquiring from Patwari. He
stated that vide sale-deed Exh.D.5 Saadat Begum had transferred the
property to defendant No.2.

9. The defendants have been unable to produce any convincing evidence


to rebut the claim of the plaintiffs. Defendant No.1 admitted in the course
2 of 1
of cross-examination that it is possible, that Saadat Begum had sold to
Zulfiqar Ali (defendant No.2) Plots Nos.44, 45 and 48. From the document
Exh. D-5 which is a sale-deed executed by Mst. Saadat Begum in favour of
Mian Zulfiqar Ali, it appears that she had sold Plots Nos.44, 45 and 48 to
him. On the basis of the said document Zulfiqar Ali could not claim to be
the owner of `Plots Nos.51 and 51A. Consequently, he could not sell Plots
Nos.51 and 51-A as he was not the owner of the said plots. There is no
dispute that the property was previously joint between different owners
and the same had the same Khasra numbers. However after the partition
the said land was carved out in the form of plots and defendant No.2 had
purchased Plots Nos.44, 45 and 48 from Saadat Begum and so he had the
authority to dispose of the said plots but not Plots Nos.51 and 51-A. On
the basis of the evidence produced by the plaintiffs it is clear that they are
the owners of disputed Plots Nos.51 and 51-A. The defendants have not
been able to produce any convincing evidence in rebuttal on this issue.
The learned trial Court had rightly decided Issue No.4 in favour of the
plaintiffs. As such the findings of the learned trial Court on this issue is
accordingly affirmed."

5. The main thrust of the contentions of the learned counsel for the appellants
was that the partition document being on deficient stamp paper and
unregistered could not be taken to have become basis of transfer of rights or
interests in the land falling in the share of Mst. Janat Bibi; plaintiff and was not
admissible in evidence and for that reason, mutation incorporating partition of
the land was also illegal and cannot be read as evidence of rights of the parties. It
has been denied by any of the parties that Exh.P.1 (partition documents family
settlement) and Exh.P.2 (mutation) incorporating the division of land between
original plaintiff Mst. Janat Bibi and other co-sharers, was acted upon,
implemented and completed as back as in 1965, though the mutation was
entered in 1972. None of the beneficiaries of this partition or family settlement
ever disputed the document as inadmissible or invalid. The suit-land was
purchased by Zulfiqar Ali through Exh.P.14 in 1967 and from whom the suit
property was purchased by the appellants through sale-deeds of. 1967. The
appellants were thus A 3rd transferees of the suit property which admittedly was
in the shape of plots (though in sale-deed it was described as part of a bigger
Khasra No.) and the plots were under a scheme floated and incorporated even
before the partition was made between the original co-owners. Having taken
land in shape of plots (though without mentioning the plots Nos. in sale-deed),
appellants cannot be allowed to turn around and challenge the entire scheme or
partition document/family settlement on the basis of which respective rights of
the co-owners/co-sharers were defined and they were put in possession.
Appellants did not dispute the fact that they had been transferred land falling
within the share of late Iqbal Begum and co-owners long time after the said
partition/family settlement and induction of Iqbal Begum and others into their
respective parcel of land through effective implementation of Exh.P.l and
Exh.P.2. The grounds raised have thus become irrelevant after implement of said
documents.

Furthermore, Exh.P.1 was a document of family settlement which, in fact and in


essence, implemented a pre-agreed scheme and division between the parties.
Wherefore, I, am inclined to hold that this was not a kind of document which
was compulsorily registrable and bore deficient stamp paper.

6. In view of the above, the appeals are dismissed with no order as to costs.

S.A.K./W-57/L Appeals
dismissed.

3 of 1
1991 C L C 1526

[Karachi]

Before Syed Abdur Rehman, J

GHULAM DASTAGIR and others---Plaintiffs

versus

Mst. MARIAM others---Defendants

Suit No.720 and Civil Miscellaneous Applications Nos.8629, 4438 and 6125 of
1989, and 2471 of 1990, Suit No.112 of 1981 and Execution NoJ4 of 1984, decided
on 11th December, 1990.

Civil Procedure Code (V of 1908)---

---S.11 & O.XXIII, R.3:---Oanun-e-Shahadat (10 of 1984), Art. 114---Registration


Net (XVI of 1908), Ss. 17 (1) (b) (vi), 18 To 49---Compromise---Res judicata--
Estoppel -----In earlier suit for partition of property in dispute between predessor
of parties in subsequent suit, consent decree was passed and in execution
application of said decree consent statement was filed by all the heirs of parties
of earlier suit---Legal heirs of parties in earlier suit who were parties and
signatories to consent statement filed in execution proceedings, were estopped
from re-opening the said matter again in view of the fact that consent statement
amounted to family settlement and an adjustment which was at par with a
compromise and was protected under OXXIII, R.3, C.P.C---Such compromise
being sacrosanct had created estoppel against parties to that agreement, who had
entered into it and had signed it, though it could not operate as res judicata---
Such estoppel would arise with regard to all matters dealt with actually or by
necessary implication in such an adjustment and amounted to a contract between
parties and had as such a binding effect upon all those who had signed it---Such
adjustment or compromise could be set aside only on grounds on which an
agreement could be set aside---Registration of consent statement between parties
which resulted in adjustment or compromise was a mere formality and parties to
that family arrangement could get same registered or if it required stamp could
be stamped even at a later stage, but signatories to that statement could not be
allowed to back out from same merely on ground that same was not
registered.---[Res Judicata---Estoppel].

Mohammad Bibi v. Lal P L D 1990 S C 1067; Evacuee Trust Board v. Abdul


Saleem 1990 S C M R 143 and Habib-ur-Rehman v. Abdur Rehman 1987 C L C
195 ref.

Badrudduja for Plaintiffs.

Z.U. Ahmad for Defendants Nos. 1 to 3.

Akhtar Hussain for Defendants Nos.4 to 29

ORDER

C.M.A. No. 2741 of 1990 is an application under sections 11 and 151 C.P.C. and
Article 114 of Qanoon-e-Shahadat Order.

The facts giving rise to this application are that a suit for partition has been filed
by plaintiffs Ghulam Dastagir and others in respect of Survey No.57 which was

4 of 1
sub-divided by an execution in Suit No.112 of 1981 and the present dispute
relates to the sub-divided Plot No.57/2/15.

The contention of Mr. Z. U. Ahmed, who is appearing for the Defendants, is that
a decree for partition was passed in Suit No. 112 of 1981, on an application under
Order 23, Rule 3, C.P.C. That suit was between Abdul Ghaffar and other heirs.
Execution application was filed for execution of the said decree. In that execution
application a consent statement was filed by three daughters of Abdul Ghaffar,
who had by that time expired. That consent statement was signed not only by
these three daughters of Abdul Ghaffar, but also by all other heirs including the
sisters of Abdul Ghaffar or the legal representatives of those sisters. The basis of
the present Suit No.720 of 1989 is that since Abdul Ghaffar deceased had left no
male issue, his three daughters, namely Mst. Maryam, Mst. Zainab and Mst.
Mehar-un-Nisa would get only 2/3rd share from the property of their father,
while the remaining 1/3rd share would go to the real sisters of Abdul Ghaffar
and through them to the L.Rs of those sisters i.e. Plaintiffs and Defendants Nos.4
to 29 The reply of Mr Z.U. Ahmad to this contention of the plaintiff's counsel is
that the L.Rs. of the real sisters of Late Abdul Ghaffar were parties and
signatories to the consent statement filed in the execution proceedings (Execution
No.14 of 1984) of Suit No.112 of 1981. Hence they are now estopped from re-
opening the said question again.

Mr. Badrudduja did not deny the facts that the consent statement was filed by
the Plaintiffs as well as the three daughters of Abdul Ghaffar in the said
execution application, that they were parties to it and that they had signed it. He,
however, contended; (1) that Suit No.112 of 1981 was aimed at partitioning and
awarding separate possession of the properties left by Faqir Mohammad Durra
Khan, father of Abdul Ghaffar and Mian Khan Durra Khan, uncle of Abdul
Ghaffar, whereas the present suit (S.No. 720 of 1989) has been filed for partition
and separate possession of the properties left by Abdul Ghaffar and therefore,
the above consent statement will not bind the Plaintiffs and that it will not be res
judicata because the matter has not been heard and finally decided in respect of
the inheritance of Abdul Ghaffar; and (2) that at no stage the plaintiffs have
given up their right to inherit from the properties of their maternal uncle Abdul
Ghaffar and therefore this consent statement cannot be treated as a surrender of
their rights by the plaintiffs.

Mr. Badrudduja has in this connection relied upon the case of Mohammad Bibi v.
Lal (P L D 1990 S.C. 1067) where the earlier suit between the parties related to
entitlement of petitioner to the share as a heir in the estate of her predecessor
which had been usurped by the Vendor. The suit did not pertain to
determination of title in respect of self-acquired property of the
Vendee/Respondent. The subsequent suit was related to self-acquired property.
It was held that the subsequent suit was not barred by the principle of res
judicata. This ruling would not apply to the present case for the simple reason
that the present suit relates to inheritance claimed by the Plaintiffs from Abdul
Ghaffar's share as against his three daughters which they had already
relinquished and given up in their favour, in Execution Application No.14 of
1984 in Suit No.112 of 1981.

The next ruling cited by Mr. Badrudduja was 1990 S C M R 143 (Evacuee Trust
Board v. Abdul Saleem) where it was held that where parties were different and
appeal had abated without a decision on merits, such decision would not operate
as res judicata. This ruling is distinguishable from the facts of the present case
inasmuch as in this case the parties that are contesting the right of inheritance to
the disputed Survey number, are the same which were also the parties to the
consent statement and the execution application. Moreover the Defendant, in this
application has not come on the point of adjudication on merits, but on the point
of estoppel by an agreement.

5 of 1
Lastly Mr. Badrudduja cited the case of Habib-ur-Rehman v. Abdur Rehman
(1987 C L C 195) where a learned Single Judge of this Court in a suit for partition
held that it was never hit by the doctrine of res judicata or even by limitation and
it was a continuing cause of action in any share-holder whether a minor or adult
whose right has not been adjudicated earlier and files a suit for partition. This
ruling would also not apply to this case for the simple reason that the right of the
plaintiffs has been given up by them in the consent statement referred to above,
which was in the nature of family settlement.

It will be useful to reproduce paras 2(a) and 3 of the said consent statement
which reads as under:-----

"2. That the property of Plot No.57/2 has been divided/partitioned between the
plaintiff/decree-Holder and rest of the defendants/judgment-Debtors as per
annexed partition plan with their mutual consent and specifically to say:

(a) That Block No.15 in the Annexed Plan is a Plot measuring 1554-63 sq. yards
which shall be partitioned and demarcated and the said plot shall be re-
numbered as 57/2/15 and shall be transferred and mutated in the joint names of
legal heirs of late Abdul Ghaffar viz. Mst. Marriam, Mst. Zainab and Mst. Mehr-
un-Nisa."

(b) to (g).............

3. That it is agreed by all the parties that the Surveyor of the office of the City
Deputy Collector may be appointed to physically demarcate/partition the plots
of the Suit property in terms of the compromise and measurement mentioned
herein. It is also agreed that the existing construction shall be removed by the
parties concerned if necessary for effecting the physical demarcation/partition
and the possession of the respective demarcated/partitioned plots shall be
enjoined or handed over to the respective parties with mutual consent of each
other being family members."

So far as the legal position of this consent statement is concerned, there can be no
doubt that it amounts to a family settlement and an adjustment which is at par
with a compromise and is protected under Order 23, Rule 3, C.P.C. It is sacrosant
and creates estoppel against the parties to that agreement, who have entered into
it and have signed it, though it may not operate as res judicata. Such estoppel
will arise with regard to all matters dealt with actually or by necessary
implications in such an adjustment. It amounts to a contract between parties and
has as such a binding effect upon all those who have signed it. Such adjustment
or compromise can be set aside only on the grounds on which an agreement can
be set aside. No where in the present suit (Suit No.720 of 1989) it has been
pleaded by the Plaintiffs that the said consent
statement/adjustment/compromise was fraudulent, unlawful or void, nor have
they prayed therein to set aside the same. So long as this consent statement
remains in field having been properly acted upon, the plaintiffs have no cause of
action to file the present suit (S. No.720 of 1989) and are estopped from
challenging the same.

Mr. Badrudduja has also taken an objection to the said consent statement on the
ground that it was not registered. It may be pointed out that registration is a
formality and the parties to the family arrangement can get the same registered
or if it requires stamp then stamped even at a later stage, but the signatories to
that statement cannot be allowed to back out from the same merely on the
ground that it was not registered.

For the above reasons I am of the clear view that the present suit (S. No.720/89)
is barred on account of estoppel as well as non accrual of cause of action.
Consequently I allow C.MA. No.2741 of 1990 and reject the plaint under Order 7,
6 of 1
Rule 11, C.P.C. C.MA. No. 8629 of 1989 become redundant and is disposed off as
such. C.MA. No.4438 of 1989 becomes infructuous and is dismissed as such.
C.MA. No.6125 of 1989 was not pressed by Mr. Z.U. Ahmad and has also become
redundant and is, therefore, disposed off as such.

H.B.T/G-260/K Application allowed/Order accordingly.

7 of 1
1989 C L C 2028

[Peshawar]

Before Nazir Ahmad Bhatti, J

ZARDAD--Petitioner

versus

ALI AKBAR and 8 others--Respondents Civil Revision


No.222 of 1984, decided on 31st May, 1989.

(a) Registration Act (XVI of 1908)--

---S. 17--Muhammadan Law--Spes successions, relinquishment of--Deed of

relinquishment--Requirements for validity--Legal consequences of

relinquishment deed--Deed of relinquishment not compulsorily registrable --

Effect and legality of relinquishment deed--Muslim heir, by his conduct, may be

estopped from claiming the inheritance he had agreed to relinquish if the release

was a part of compromise or family settlement and he had benefited from the

transaction--Plaintiff having derived benefit from the property, could validly

execute the relinquishment deed--Such deed was thus quite legal and did not

require any registration--Plaintiff was bound by the deed of relinquishment and

was estopped from claiming any share from the property left by his father.

(b) Muhammadan Law--

--- Will--Bequest to a heir is not valid unless other heirs


consent to the bequest after the death of the testator--A
Muslim also cannot by Will, dispose of more than 1/3rd
of the surplus of his estate after payment of funeral
expenses and debts--Bequests in excess of the legal third
cannot take effect, unless the heirs consent thereto after
the death of the testator.

Principles of Muhammadan Law by D.F. Mulla, 15th


Edn., 1965 rel.

(c) Muhammadan Law--

---Bequest to heir--Plaintiff having relinquished his share from his father's

property, which he had not at that time inherited because his father was still

alive, was bound by it and was estopped from claiming any share out of the

property of his father--Plaintiff's mother had bequeathed her share of property

8 of 1
which she had inherited after the death of her husband in favour of her other son

i.e. defendant--Such bequest in favour of an heir was not valid because other

heir, the plaintiff had not consented to it after the testator's death and also

because bequest was of more than 1/3rd of the property of the

testator--Concurrent finding of two Courts below was not interfered with and

plaintiff was allowed share from the property left by his mother.

Tajuddin Khan for Petitioner.

Saadatullah Khan for Respondents.

Date of hearing: 31st May, 1989.

JUDGMENT

Ali Akbar, respondent No.l herein, had instituted a suit against Zardad
petitioner and Ali Asghar and others respondents Nos.2 to 9 herein for
possession by partition of his share in the property in dispute and for recovery of
his share of the amount of rent of the suit property and for permanent injunction
against respondents Nos.5 to 9 herein restraining them from paying rent to any
of the parties and deposit the same in Court. His contention was that the suit
property was owned by Mian Dad his father as well as those of defendants Nos.
1 to 3 to the suit and after his death he was entitled to inherit his shari share there
from. Defendants Nos.5 to 10 of the suit were tenants of the suit property paying
rent and he was also entitled to claim his shari share in the amount of the rent.
Defendants Nos. 2 and 3 of the suit confessed judgment whereas Zardad
petitioner and Mst. Shahzadgai widow of Mian Dad and defendant No.4 of the
suit contested the suit. Their contention was that Mian Dad had spent an amount
of Rs.1,2(X) in connection with the marriage of Ali Akbar plaintiff-respondent
No.l in the year 1953 in consideration of which he had executed a deed of
relinquishment on 6-3-1953 whereby he had undertaken not to claim any share
from the property left by his father Mian Dad and that he was not entitled to any
share from the property in dispute. The trial was held on the following issues:--

(1) Whether the predecessor in interest of plaintiff and defendants Nos. 1 to 4


was the owner of the suit property and they are legal heirs?

(2) Whether the defendants Nos.5 to 10 are tenants at Rs.35 in the suit property
and are defaulter for a period of three years?

(3) Whether defendants Nos.l to 4 have no cause of action about the suit
property?

(4) Whether the plaintiff has got a cause of action?

(5)Whether the plaintiff has forgone his right in the suit property?

(6) Whether the defendants are in adverse possession of the suit property for
more than twelve years and effected improvements in it and in case of decree
they are entitled to it?

(7) Whether the plaintiff is estopped to sue by his own conduct?

(8) Whether the suit is not within time?

9 of 1
(9) Whether agreement deed dated 6-3-1953 is genuine and binding on the
parties?

(10) Whether the defendants are regular in payment of rent to the true owner?

(11) Whether the plaintiff is entitled to the decree as prayed for?

(12) Relief.

After recording evidence as produced by the parties the learned Senior Civil
Judge Mardan held in issues Nos.5 and 9 that the relinquishment deed, photo
copy Exh.P.W.2/DI, was not registered and it was not binding on the
plaintiff-respondent No.l and so there was no legal relinquishment of his share in
the property in dispute. The learned trial Judge also held in issues Nos. 4 and 11
that the plaintiff-respondent No.l was also entitled to inherit his shari share from
the share of his mother Mst. Shahzadgai which she had inherited from her
husband Mian Dad. The learned trial Judge, therefore, passed a preliminary
decree for possession of 4th share in the suit property by way of partition and a
decree for recovery of Rs.1,327 from the amount of rent in favour of the
respondent No.l by judgment dated 18-9-1982. Zardad defendant No. l petitioner
feeling aggrieved challenged the aforesaid judgment by an appeal. The learned
District Judge Mardan, who heard the appeal, agreed with the findings of the
learned trial Judge and dismissed the appeal by judgment dated 28-4-1984. Still
feeling aggrieved Zardad came to this Court with the revision petition in hand.

2. I have heard learned counsel for the parties at length who also led me through
the record of the case.

3. The admitted facts of the litigation between the parties are that the petitioner
and respondents Nos.l to 3 are sons of Mian Dad and Mst. Shahzadgai defendant
No.4 in the suit, since deed, was his wife. Ali Akbar respondent No.l had also
executed the alleged agreement deed on 6-3-1953 wherein he had inter alia
narrated that his father Mian Dad had spent an amount of Rs.1,200 in connection
with his marriage and in consideration of that he had relinquished his share in
the property which was to be left by his father and had agreed not to claim any
share there from. There is yet another document, photo copy Exh.P.D.1/1, which
is a Will executed by Mst. Shahzadgai on 12-9-1979, according to which Mian
Dad predecessor of the aforesaid parties died on 26-i1-1969 and Ali Akbar had
not spent any amount in connection with the funeral expenses of his father
which were entirely borne by the other three brothers Zardad, Ali Asghar and
Mohammad Yunis. This Will further narrates that after her death her share from
the suit property would only be inherited by Zardad her son and so she made a
bequest of her share in the suit property in favour of her son Zardad. The suit
was filed on 20-3-1979 when Mst. Shahzadgai was alive but the order sheet of the
learned trial Judge shows that she had died during the pendency of the suit and
her legal representatives were impleaded on 29-1-1980.

4. It shall thus be seen that there are two documents on the record, one executed
by Ali Akbar respondent No.1 herein on 6-3-1953, according to which he had
relinquished his share in the suit property which he was likely to inherit after the
death of his father. The other document is Will by Mst. Shahzadgai mother of Ali
Akbar according to which she had bequeathed her share from the property,
which she had inherited from her husband, in favour of her son Zardad. The
entire case depends upon the legal value of both the aforesaid documents.

5. In so far as the document which is relinquishment deed, copy Exh.P.W.2/D1 is


concerned, two things are borne out there from. Ali Akbar relinquished his share
from the property of his father on account of the fact that the latter had spent an
amount of Rs.1,200 in connection with his marriage. Both the learned lower
Courts admitted the execution of this document but they came to the conclusion
10 of 1
that it was compulsorily registrable under section 17 of the Registration Act
because it purported to extinguish any right, title or interest of the value of more
than 100 rupees in immovable property which was left by Mian Dad and for that
reason it was not admissible in evidence nor it could be acted upon. I am afraid
both the learned lower Courts acted under erroneous interpretation of the
provisions of section 17 of the Registration Act. The very contents of this
document disclose that the respondent No.l herein had not yet inherited any
property from his father. Actually it was a question of spes successions. The
respondent No.l had not at that time inherited any property because his father
was still alive. At the most it was a right to inherit property in future. No
property had at that time come into his possession over which he could lay his
hands. In this document the interest involved was nothing more than a mere
spes succession is and the document did not go further than merely reciting a
fact or other legal effect of the transaction which was already a fait accompli
(amount spent in connection with marriage), its registration was not compulsory
under the Registration Act. Moreover a deed purporting to relinquish or assign
the chance of a Muslim to inherit in future or to succeed to an estate did not
require registration, the reason being that the heir has only a chance of
succession and has no right or interest in the property vested or contingent. I
will, therefore, hold that document, copy Exh.P.W.2/Dl, reciting a mere chance
to inherit and not creating any interest in favour of respondent No.l was not
compulsorily registrable. It is also an accepted principle of Islamic Law that a
Muslim heir may I by his conduct be estopped from claiming the inheritance he
has agreed to I relinquish if the release was part of a compromise or family
settlement and if he had benefited from the transaction. At the costs of repetition
I would again say that since the respondent No.1 had derived benefit of Rs.1,200
from the property which he had yet to inherit, so he could validly execute the
relinquishment deed in question. The said deed was, therefore, quite legal and it
also did not require any registration and the respondent No.1 was bound by it
and he was estopped from claiming any share from the property left by his
father. Both the learned lower courts obviously arrived at an erroneous finding
with regard to this document and the same is set aside and the respondent No.l
is held not entitled to claim any share from the property left by Mian Dad.

6. Now the question arises about the validity of the will executed by Mst.
Shahzadgai on 12-9-1979, copy Exh.D.W.l/1. This request was executed after the
death of Miart Dad. Obviously Mst. Shahzadgai had inherited 1/8th share from
the property left by Mian Dad in the capacity of his widow. The perusal of this
deed will show that she had made a bequest of her entire share in favour of
Zardad petitioner herein. According to section 117 of the Principles of
Mohammadan Law by D.F. Mulla (15th Edition, 1967) a bequest to a heir is not g
valid unless the other heirs consent to the bequest after the death of the testator.
According to section 118 of the same book a Muslim cannot by Will dispose of
more than 1/3rd of the surplus of his estate after payment of funeral expenses
and debts and bequests in excess of the legal third cannot take effect, unless the
heirs consent thereto after the death of the testator. Two things are quite clear
from the aforesaid principles of Islamic Law: firstly, that a Muslim cannot by
Will dispose of more than a 3rd of the property left by him/her; and secondly,
even this 1/3rd share will not be valid if the bequest is made to a heir and the
other heirs do not agree. The fact that Ali Akbar respondent No.l had filed a suit
for possession of his share of the property left by his father and mother would
clearly indicate that he did not agree to the bequest made by his mother. She was
entitled to inherit 1/8th share from the property in dispute and she left behind
four sons. This would mean that each of the sons would get 1/4th share out of
the share of Mst. Shahzadgai. As such Ali Akbar respondent No.l herein would
be entitled to inherit 1/4th share of 1/8th share, that is, 1/32 share from the
entire property in dispute in the suit. Although Mst.Shahzadgai was alive when
the suit was filed but she died during its pendency and her inheritance also
opened during the pendency of the suit and in order to avoid multiplicity of suits
the devolution of her property upon her heirs could also be adjudicated upon in
11 of 1
the suit in hand. Both the learned lower Courts also arrived at a wrong
conclusion in respect of the inheritance of the share of Mst. Shahzadgai by her
sons.

7. The net result of the above discussion is that I will partially accept this revision
petition and by modifying the impugned judgments of both the learned lower
courts I will grant a preliminary decree for possession by partition of 1/32 share
out of the immovable property in dispute as well as the same share from the
amount of rent of the suit shops as may be calculated by the learned trial Judge
in the proceedings for the final decree. Since the revision petition has partially
succeeded there shall be no orders as to costs.

A.A./845/P Revision partly


accepted.

12 of 1
2002 P Cr. L J 2029

[Karachi]

Before Muhammad Afzal Soomro, J

Miss TASNIM---Petitioner

Versus

S.H.O. and others---Respondents

Constitutional Petition No.S-260 of 2002, decided on 10th June, 2002.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan (1973), Art. 199---Constitutional


petition---Registration of F.I.R.---Behaviour of police officials---Judicial
notice---Grievance of the petitioner was that the police officials entered her house
forcibly at the later hours of night and looted gold jewellry--Contention of police
officials was that they had gone to the house of the petitioner for execution of
warrants issued by Family Court and on threats given by the petitioner and her
husband they returned quietly--Validity---High Court observed that for
executing warrants issued by Family Court, the police personnel had become so
vigilant that they went to the house of the petitioner in the late hours of the
night---High Court took judicial notice of the circumstances prevailing generally
in the country and specially in Karachi city---High Court did not accept the
contention of the police official as it was not possible that the police mobile had
gone to the petitioner's house and returned quietly without reacting after threats
were given by the inmates ---Averments made by the petitioner in her petition
had the substance which could only be explored by recording evidence of the
witness under Ss.161 & 164, Cr.P.C. produced on behalf of the petitioner, after
registering First Information Report---Same being. the fundamental right of a
citizen of Pakistan, High Court directed the authorities to make arrangement for
recording statement of the petitioner and register F.I.R. if any cognizable offence
was made out from such statement---Constitutional petition was allowed in
circumstances.

S. Akhlaq Mehdi for Petitioner.

Suleman Habibullah, Addl. A.-G. for Respondent No.3.

Respondent No.5 in person.

Date of hearing: 6th June, 2002.

ORDER

The petitioner, through her learned counsel, has filed this petition for registration
of F.I.R. against the proposed accused mentioned in the memo. of petition. On
this petition notice was directed against the respondents and in response
whereof respondents Nos.3 and 5, Riaz Ahmed and Ghazala Saeed, have
appeared and submitted their respective replies in the, shape of counter-affidavit
and comments.

Facts, briefly stated, are that respondent No.4, ex-wife of Samiullah Siddiqui, the
elder brother of the petitioner, having certain litigation with her husband in Civil
Court and in consequence of decree passed in her favour, filed Execution
Application bearing No.5. of 1995 in the Court of IIIrd Civil/Family Judge,

13 of 1
Karachi East. In order to recover the decretal amount, the learned Judge directed
the Assistant Commissioner (Revenue), Karachi East to recover the said sum
from Samiullah Siddiqui who, after having spot enquiry, informed the Court
vide his letter, dated 18-9-2000 that said Samiullah Siddiqui was not a resident of
the address given by the Court and requested to provide the fresh address. It is
further averred in the memo. of petition 'that the learned IIIrd Civil/Family
Judge, Karachi East insisted the Assistant Commissioner (Revenue), Karachi East
to have another enquiry and as such the said A.C. issued a warrant against said
Samiullah Siddiqui through S.H.O. of Al-Falah Police Station, Karachi East who
also, after having detailed enquiry, reported the similar position. It has, further,
been averred in the memo. of petition that till 1997 Samiullah Siddiqui was
residing in the said rented house as a member of entire family as per the customs
of joint family system and due to serious family disputes left for unknown place
and till to date his whereabouts are not known to the family members of the
petitioner nor the said Samiullah had ever contacted since his leaving the house.
However, the said house was purchased by another brother of the petitioner viz.
Rafiullah on or about 26-4-2000 and the petitioner being a working woman and
married is paying rent for the ground floor in her occupation.

However, on or about 9-4-2002 the learned IIIrd Civil/Family Judge, Karachi


East issued a warrant in the name of Samiullah Siddiqui and respondent No.2
entrusted the execution of the same to respondent No.3 who recorded the
statements of as many as four witnesses who have stated in their respective
statements that Samiullah Siddiqui is not a resident of house, in question, but
while submitting his report he with the malicious reasons declared all the
witnesses to be near relations of Samiullah and further alleged that said
Samiullah is avoiding to come before the police fearing of his arrest. He also
declared Samiullah Siddiqui as an inmate of the house, in question, and held him
underground due to the fear of arrest' in his another report, dated 25-4-2002
whereupon the learned Family Judge issued a non-bailable warrant by using
form prescribed in Criminal Procedure Code and consequent to that respondent
No.3 attacked on the residence of the petitioner on the instructions of
respondents Nos.1 and 2 by staging a conspiracy and pushed the outer door
entrance of the house of the petitioner with foots and gun buts and forcibly
entered the house when the petitioner, her husband and their minor daughter
were in deep sleep. They asked the petitioner to open boxes and almirahs and
started searching alongwith respondent No.5 and his companions A.S.-I. Police
Nadeem, besides one lady constable and one person in plain clothes and
disclosed that in execution of warrant against Samiullah Siddiqui they have
entered in the house. It has, further, been averred that electric power failed in the
meantime and taking advantage of such situation, respondents Nos.3, 4, 5 and
their companions took out Rs.50,000 and gold ornaments worth Rs.15,000 from
the box. According to the petitioner, she immediately rushed to the police station
alongwith her husband and brother and informed the Duty Officer regarding the
commission of offence but the Duty Officer flatly refused to register the F.I.R.
and advised her to wait till morning when the S.H.O., respondent No.2, herein,
would be available. She visited the police station on the next day but was
informed that S.H.O. was .busy in patrolling duty. She tried to get her written
complaint acknowledged but the same was refused to be received by the officers
present at the police station. She 4as, therefore, approached this Court invoking
its Constitutional jurisdiction for registration of F. I. R. against respondents Nos.
1 to 5.

In the comments filed on behalf of respondent No.2, it has been averred that the
petitioner in order to give shelter to Samiullah Siddiqui has filed this
Constitutional petition which otherwise is not maintainable in view of the fact
that the witnesses from Mohallah gave false statement about the ignorance of
whereabouts of Samiullah Siddiqui and those witnesses are liable to be
punishment for giving false statements. Furthermore, according to respondent
No.2, in case of not residing in the house, .in question, the legal heirs of
14 of 1
Samiullah Siddiqui are legally bound to tell his address of residence or working
place. It has, further, been averred in the comments that in case of
non-availability of a person, writing of word "had already gone underground" is
not violation of any law and instead. It has, also, been averred that A.S.-I. Syed
Riaz Ahmed visited the given address of Samiullah alongwith a lady Constable
and Mst. Ghazala and knocked the door of Samiullah in presence of Mohallah
people but instead of offering any cooperation, brother-in-law of Samiullah
Siddiqui namely Aleem Asghar threatened the A.S.-I. for making complaint for
supporting Mst. Ghazala in the service of non-bailable warrant, and therefore,
the said A.S.-I. came back and also made an entry in the station diary to this
effect. It has, also, been averred in the comments that family has also issued
show-cause notice to him for non-service of warrant and that Head Moharrir of
the said police station was also suspended and shifted from the said police
station on the complaint of Mst. Ghazala (respondent No.5) as she is also in the
habit of making complaints against police. He has also denied the entry in the
house of the petitioner on the part of the police. He has also denied the fact that
the petitioner had approached the said police station for registration of F.I.R.
Lastly, it has been prayed that petition may be filed and the petitioner may be
directed to cooperate with the police for service of warrant upon Samiullah.

In the counter-affidavit, filed on behalf of respondent No.5, similar averments as


of respondent No.2 in his comments, have been reiterated besides admitting the
visit at the house of the petitioner in the company of respondent No.3, a lady
constable and a constable.

I have heard the argument of the learned counsel appearing on behalf of


respective parties.

It has been contended by the learned counsel for the petitioner that respondents
Nos.1 and 2 are duty bound to register the case/F.I.R. under section 154, Cr.P.C.
against the delinquent respondents Nos.3 to 5 and their companions for not only
committing robbery of cash of Rs.50,000 and gold ornaments valued at Rs.15,000
but also for entering in the, house of the petitioner illegally abusing their official
position and are at large due to their influence in Police Department. It has, also,
been contended that the copy of Station Diary No.68 shows that in such a late
night of 21-5-2002 respondent No.3 in company of respondent No.5 and his
companions attacked the house of the petitioner in violation of law as the
warrant/process/summons/notices of Civil Courts are only executable during
sun-rise to sun-set arid his accompanying with respondent .No.5 proves total
mala fides on the part of respondent No.3 and his companions.

Learned Additional Advocate-General has raised objection about the


maintainability of the petition in view of pendency of civil litigation between the
parties.

I have considered the arguments, advanced on behalf of the respective parties.

Besides the admission in respect of visit to the house of the petitioner by


respondents Nos.3 and 5 alongwith lady searcher and a constable for execution
of warrant of Civil/Family Court, which too, in late hours of 21-5-2002 i.e. 1-30
a.m. as evident from Roznamcha report, filed by respondent No.2 himself,
ignoring the statements of witnesses Rafiullah, Haleem Asghar, Ghulam Ahmed
and Mumtaz Hussain stating that Samiullah Siddiqui was not residing in the
house where the petitioner lives, respondent No.3 has also admitted that he had
received applications of the petitioner through his senior officer which he sent to
the quarter concerned with the necessary reports as due procedure. The
averment of respondent No.3 with regard to the habit of respondent No.5 for
making applications against the Police Officers. also creates doubt that police
officials either being impressed or in connivance with respondent No.5 took a
harsh step by attacking the house of the petitioner in late hours of the night only
15 of 1
to execute warrant of Family Court which could have been executed in day time.
I am surprised that for executing warrant issued by a Family Court, the
personnels of Police Station Al-Flah became so vigilant so that they went to the
house of the petitioner in the late hours of the night when a citizen of this Islamic
Republic of Pakistan is very much entitled to get relieved of all the pains which
he suffered during the day time for earning his livelihood or doing house jobs. It
is also strange that area police required assistance of respondent No.5, who is a
lady, in the late hours of a night, to get the warrant executed upon some one
though on that very address, according to their own comments, they had visited
for recording statements of the witnesses with regard to the residence of
Samiullah Siddiqui and for whom they have sought recommendation for strict
action for giving false evidence that Samiullah. Siddiqui is not residing. This
Court can take judicial notice of the circumstance prevailing in our country
specially in Karachi City where when a police mobile vehicle fails to have clear
road due to rush of traffic, immediately starts emergency siren though that,
emergency siren is only permissible when such mobile vehicle is going for
emergency purpose then how it is possible that a police mobile goes. on the
petitioner's house and brother-in-law threats inmates of such mobile vehicle and
they returned back quietly without reacting.

In view of what has been discussed above, I am of the considered. view that
there is substance in the averments made by the petitioner in her petition which
can, only, be explored by recording evidence of the witnesses under sections 161
and 164, Cr.P.C. produced on behalf of the petitioner, after registering the First
Information Report, being the fundamental right of a citizen of this Islamic
Republic Country, and therefore, am inclined to allow this petition and direct
respondent No.6 to make arrangement for recording, statement of the petitioner
and if any cognizable offence is made out from such statement also make
arrangement for registration of F.I.R. against respondents Nos.1 to 5 as four of
them being police officials may influence and cause impediments for registering
the same.

Constitutional Petition No.260 of 2002 stands disposed of in. the above terms.

Q.M. H./T-32/K Petition allowed.

16 of 1
1999 C L C 163

[Lahore]

Before Najam- ul-Hassan Kazmi, J

WALT DAD---Petitioner

versus

Mst. TASNEEM KAUSAR and another---Respondents

Regular Second Appeal No.6 of 1987, heard on 19th June, 1998.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R.1 & O. VI, R.17---Relief not claimed in


suit---Effect---Where some relief had not been claimed in plaint,
suit could not be dismissed on that ground---Proper course would
be to direct plaintiff to amend plaint and pay requisite
court-fee---Party could be given relief to which the same was
found entitled, notwithstanding, that such relief had not been
specifically claimed.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and
Samar Gul v. Central Government and others PLD 1986 SC 35 rel.

Ali Hassan v. Mt. Rashidan and another AIR 1931 All. 237 land
Haji Ghulam Hussain v. Mst. Amir Khatun PLD 1976 BJ 37 ref..

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Registration Act (XVI of 1908), S.17---Transfer of Property


Act (IV of 1882), S.54---Entries in "Nikahnama" showing transfer of
property in lieu of dower---Non-registration of such
transfer---Effect---Transfer of property in lieu of dower at the time
of marriage by husband in favour of his wife, was neither sale nor
the same required any registered document for
completion---Entries in "Nikahnama" showing transfer of property
in lieu of dower would be sufficient evidence of events and
arrangements which had already been subscribed to by parties and
the same being not sale did not require registration.

Ali Hassan v. Mt. Rashidan and another AIR 1931 All. 237; Mst.
Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399; Haji Ghulam
Hussain v. Mst. Amir Khatun PLD 1976 BJ 37; Amjad Hussain and
another v. Mst. Shagufta and 2 others.PLD 1996 Pesh. 64;
Fazal-ur-Rehman v. Mst. Sosan Jan and others 1989 SCMR 651 and
Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR
1403 ref.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Transfer of Property Act (IV of 1882), 5.118---Entries in


"Nikahnama" showing transfer of property in lieu of dower by
husband to wife---Possession of property in question was given to
wife in acknowledgement of dower---Husband's uncle claiming
property in question on basis of exchange after wife had been
divorced by her husband---Effect---Appellant claiming property in

17 of 1
exchange did not appear in witness-box to answer charges of his
conspiracy with husband of plaintiff (lady) and that he had
trespassed and dispossessed her---Basic ingredients of claimed
bona fide transfer for value without notice were
missing---Appellant could not prove having made bona fide
inquiries before alleged exchange and, on the contrary, exchange
was made during pendency of plaintiff's suit---First Appellate
Court, thus, had not committed any error of law in decreeing
plaintiff's suit---No interference was warranted in impugned
judgment.

Bashir Ahmad Ansari for Appellant.

Maulvi Anwar-ul-Haq for Respondents.

Date of hearing: 19th June, 1998.

JUDGMENT

This judgment will decide Regular Second Appeal No.6 of 1987.

2. Facts necessary for the disposal of this appeal are that Mst.
Tasneem Kausar, respondent No.l filed a suit for possession of
Haveli in issue on the ground that she was married with
Muhammad Sarwar respondent No.2 on 17-9-1967 and at the time
of marriage the Haveli in issue was given to her in lieu of dower.
Later respondent No.2 divorced respondent No. l through notice
of Talaq, dated 22-5-1972. It was further claimed that respondent
No. l filed a suit for recovery of dower on 1-6-1972 and during
pendency of the suit respondent No.2 executed agreement dated
13-1-1973, delivered the possession of Haveli and resultantly, the
suit was disposed of on 30-1-1973. The grievance voiced in the
plaint was that Wali Dad (petitioner herein) who was paternal--
uncle (Phupha) of respondent No.2 (Muhammad Sarwar) executed
a collusive deed of exchange by which the Haveli was allegedly
shown to have been given to appellant in exchange of other
property and in pursuance of this conspiracy respondent No. l was
turned out of house and possession was illegally taken over by the
appellant. Respondent No.l earlier filed a suit for declaration with
consequential relief which was dismissed by the learned Civil
Judge on an objection that the same was not maintainable in the
existing form due to absence of prayer for delivery of possession.
In appeal the suit was allowed to be withdrawn with permission to
file fresh one and consequently the present suit out of which this
appeal has arisen was filed. In this backdrop, respondent No. l
claimed possession of Haveli.

3. The suit was resisted by the appellant, who inter alia,


maintained that he was a bona fide transferee for value without
notice and had incurred certain amount towards additional
construction. He also denied the claim of respondent No. l and
alleged that she had no cause of action or locus standi to file the
suit.

4. After issues and evidence the suit was finally dismissed by the
learned Civil judge by his judgment, dated 26-5-1986. Despite the
fact that findings on Issues Nos. l, 4 and 5 were returned in favour
of respondent No. l and it was held that property was gifted out in
favour of respondent No. l by respondent No.2 in lieu of dower
and also that gift did not require any registered instrument, the
18 of 1
suit was dismissed by the learned Civil Judge, in view of findings
recorded against Issues Nos.3 and 5-B which pertained to the claim
of bona fide transfer on the basis of deed of exchange.

5. Respondent No. l filed an appeal to assail judgment of the


learned Civil Judge which appeal was accepted on 18-1-1987 and
in consequence the suit was decreed. The learned Additional
District Judge, reversed the findin1v on the plea of bona fide
transfer and by upholding the findings on other issues, decreed the
suit, which resulted in filing of present appeal.

6. Learned counsel for the appellant vehemently argued that


respondent No. l had previously filed a suit for recovery of
Rs.17,000 and, therefore, she would be deemed to have forgone her
claim for specific performance under section 21, of the Specific
Relief Act and in consequence she could not be allowed relief of
possession. He added that respondent No. l having felt contented
with money would be estopped to raise claim and suit would be
barred by rule of estoppel. It was also submitted that exchange
deed in favour of the appellant was valid and in any case the
respondent No.2 had sold the property given to him in exchange
to third party on 14-5-1977 but both -the vendees were not
impleaded in the suit. Learned counsel contended that
compromise between respondents Nos. l and 2 was entered into on
13-1-1973 after the property had been exchanged which could not
adversely effect rights of appellant. Learned counsel further
submitted that claim made in three suits was discrepant which
aspect of the matter was not attended to by the Courts below.
Lastly, learned counsel submitted that transfer of house in this case
would be deemed to be Hiba-bil-Iwaz and a sale which could be
effected only through registered document and not otherwise.
Reliance was placed on Ali Hassan v. Mst. Rashidan and another
AIR 1931 All. 237 and Haji Ghulam Hussain v. Mst. Amir Khatun
PLD 1976 BJ 37 to argue that there being no registered instrument
of transfer no transfer of title could be deemed to have taken place
in favour of respondent No. 1.

7. On the opposite side, learned counsel for respondent No. l


argued that concurrent findings of fact were recorded by the
Courts below as to validity of gift and transfer of title in favour of
respondent No. l which could not be assailed in second appeal
particularly when no misreading or non-reading of evidence could
be pointed out. Learned counsel submitted that it was a case of
extreme hardship as respondent No. 1, though held to be owner by
all the Courts, yet, she was not given relief in the earlier suit on a
technical objection while in the present suit, she was non-suited by
the trial Court on a wholly inadmissible ground. Learned counsel
submitted that the Appellate Court rightly reversed the findings of
the learned trial Court against Issues Nos.3 and 5-B which are not
open to any exception. It was added that the alleged exchange
deed was claimed to have been executed during pendency of suit
and in any case it was collusive as the appellant was real uncle
(Phupha) of respondent No.2 who had participated the marriage
and was fully aware of transfer of Haveli in favour of respondent
No. 1. Learned counsel further added that there was no question of
estoppel or waiver as tenor of allegation in the previous suit
revealed that respondent' No. l was claiming title though the relief
was not claimed specifically in view of lack of proper legal
assistance. Learned counsel submitted that in any case Court was
competent to grant relief according to the averments in the plaint,
19 of 1
notwithstanding the fact that the same was not specifically claimed
for and in this view of the rule it could not be said that respondent
No. l had ever waived or relinquished her claim of title. It was
further submitted that respondent No.2 having delivered the
possession of house and acknowledged the same, the earlier suit
had borne fruit and was accordingly disposed of while the
necessity of present suit arose because of the illegal trespass made
by appellant in connivance with respondent No.2. Learned counsel
lastly submitted that the appellant never denied the factum of
transfer of Haveli in lieu of dower at the time of marriage and
instead claim of appellant was firstly that this was not the property
and secondly that some other property was exchanged in favour of
respondent No. l and in this view of the matter the total stand of
the appellant was misconceived which was rightly repelled by the
Courts below.

8. The points raised by the learned counsel for the parties have
been duly taken care of in the light of evidence on record.

9. The claim of respondent No. l was that Haveli in issue was given
to her in lieu of dower at the time of marriage which fact was also
acknowledged and confirmed by respondent No.2 (Muhammad
Sarwar) in the Nikahnama Exh.P.2. It was also her claim that
respondent No.2 executed agreement Exh.D.1, acknowledged
delivery of Haveli, during pendency of previous suit and that
subsequently the appellant who is paternal-uncle (Phupha) of
respondent No.2 trespassed the Haveli in conspiracy with
respondent No.2 which necessitated the filing of present suit. To
support this plea, the respondent No. l produced oral as well as
documentary evidence. Though the suit was dismissed by the
learned Civil Judge yet the findings on issues Nos. l, 4 and 5
pertaining to locus standi to file the suit, cause of action and
existence of valid title were recorded in favour of respondent No.
1. The learned Civil Judge expressly concluded that the gift was
validly made, the document did not require registration and that
respondent No. 1 was owner of Haveli in lieu of dower. She was
non-suited only on account of findings recorded against Issue
No.5-B which pertained to the plea of bona fide exchange. It is also
observed that previously respondent No. l filed a suit for
declaration and permanent injunction which was decided by the
learned Civil Judge on 30-9-1974. Exh.P.6 is copy of the judgment
passed in Suit No.211-A/74. In this judgment, too, the findings in
regard to transfer of Haveli in lieu of dower were recorded in
affirmative and it was held that Haveli was rightfully transferred
in lieu of dower. Notwithstanding the fact that on merits
respondent No. l was held to be owner of property yet she was
non-suited on a technical objection as to the maintainability of suit
in the existing form. The objection was that relief of possession was
not claimed and suit was hit by pioviso of section 42 of Specific
Relief Act. This found favour with the learned Civil Judge who
dismissed the suit. As the matter of fact, the view taken regarding
non-maintainability of suit was against law. It is a settled rule that
if some relief has not been claimed in the plaint, the suit cannot be
dismissed on A this ground and the proper course is to direct the
plaintiff/petitioner to amend the plaint and pay the requisite
court-fee. Reliance can be made on Ahmad Din v. Muhammad
Shafi and others PLD 1971 SC 762. In view of the rule laid in the
precedent case, the suit could not have been dismissed on the
ground of being not maintainable in its present form. Be that as it
may, respondent No.l went in appeal where she was allowed to
20 of 1
withdraw the suit with permission to file fresh one subject to
payment of cost of Rs.150. This was vide order, dated 29-3-1975 of
the learned Additional District Judge, Rawalpindi which was
produced in evidence as Exh.D.6. Respondent No.l claimed to have
deposited the amount of cost in the bank and filed the present suit
out of which this appeal has arisen.

10. In this backdrop of litigation, the learned Civil Judge again


recorded findings in affirmative as to transfer of Haveli in favour
of respondent No. l in lieu of dower and it was held that the
objection as to non-registration was devoid of merit. Despite that
she was not allowed relief by the trial Court as it was assumed that
exchange in favour of appellant was bona fide. In appeal the
judgment was reversed and suit was decreed.

11. As regard the arguments that respondent No. l had not


previously asked for property and applied for recovery of money,
she should be deemed to have waived her right and be considered
to be estopped to file present suit, the objection is devoid of merit.
The perusal of previous plaint would show that respondent No.l in
fact claimed title of the property and asked for the same. Copy of
plaint is Exh.D.3. In this plaint, she specifically stated that Haveli
was given to her in lieu of dower at the time of marriage. It is also
a settled rule that a party can be given relief to which the party is
found entitled, no matter the same has not been specifically
claimed. Reference can be made of Samar Gul v. Central
Government and others PLD 1986 SC 35.

12. The suit was not tried on merits but was ultimately disposed of
vide Exh.D.4 on 30-1-1973, as in the meanwhile respondent No.2
had executed agreement Exh.D.l. In agreement, dated 13-1-1973
Exh.D.l, respondent No.2 clearly acknowledged that possession of
Haveli had been delivered to respondent No.l which was earlier
transferred to her in lieu of dower. In consequence thereof, the suit
of respondent No. l had borne fruit. It cannot, therefore, be said
that respondent No. l had relinquished her claim of property or
was estopped to claim any title qua Haveli. Rather circumstances
demonstrate that she had always been agitating her title to the
property and that possession of property was given to her vide
Exh.D.I in recognition of her rights. The objections of estoppel and
waiver are, therefore, not well-founded.

13. As regards the objection that it was Hiba-bil-Iwaz and virtually


a sale in favour of wife which could not be made except through a
registered document, the objection is without substance and
devoid of merit. Learned counsel for the respondents relied on Ali
Hassan v. Mst. Rashidan and another AIR 1931 All. 237 to support
his contention that assignment of property by a Muhammadan to
his wife as her dower will virtually be a transfer/sale within the
meaning of section 54 of Transfer of Property Act. This question
has been discussed in detail in Mst. Allah Jawai v. Allah Ditta PLD
1975 Lah. 1399. In this case, it was ruled that transfer of immovable
property by husband to his wife in lieu of dower compromises of
two distinct transfers viz., gift of property by husband to wife, and
gift by way of her right to recover dower from her husband and
such transaction is not required to be effectuated through
registered instrument for it is neither the Sale under section 54 of
Transfer of Property Act nor provisions of Chapter VII of the Act
(relating to gifts) would be applicable by virtue of provisions of
section 129 of the Transfer of Property Act. In Haji Ghulam
21 of 1
Hussain v. Mst. Amir Khatun PLD 1976 BJ 37, it was ruled that a
direct gift of immovable property in lieu of dower particularly on
the day of Nikah created by husband in favour of his wife without
creating a Liability by specifying a dower debt does not take case
of Hiba-bil-Iwaz and it will be a simple Hiba without an exchange
not amounting to sale as defined in section 54 of Transfer of
Property Act. Similarly, in Amjad Hussain and another v. Mst.
Shagufta and 2 others PLD 1996 Pesh. 64, it was ruled that transfer
of immovable property by husband to wife through Nikahnama
which had not been registered under the Registration Act, 1908,
did not require compulsory registration and wife was entitled to
claim immovable property on the basis of Nikahnama wherein the
same was incorporated in lieu of dower. In Fazalur-Rehman v.
Mst. Sosan Jan and others 1989 SCMR 651, it was ruled that entries
in Nikahnama relating to alienation of property in lieu of dower
do not make it an instrument or document of transfer of property
but it was to be taken merely as a record of it. It was further ruled
that columns contained in Nikahnama indicating arrangement to
which the parties have already subscribed, such record is only
prepared to verify those events which have already happened and
the document of Nikahnama coupled with other evidence would
be sufficient. in the ordinary course to prove the factum of
alienation of property in lieu of dower. Likewise in Maulvi
Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403, it
was ruled that a gift by a Muslim would be complete even if there
was no writing. It was further ruled that gifts made under Muslim
Law are excluded from the operation of Transfer of Property Act.

14. From the rules given in the precedent cases, it is discernible


that 'the transfer of property in lieu of dower at the time of
marriage by the husband in favour of his wife, is not a sale nor it
requires any registered document for completion. Furthermore, if
the property is given in lieu of dower on the same day when the
Nikah has taken place without creating any liability of debt the
transfer of property will not require any registration and the
entries in Nikahnama showing transfer of property in lieu of
dower will be sufficient evidence of the events and arrangements
which have already been subscribed to by the parties. The perusal
of Nikahnama Exh.P.2 will show that the Nikah took place on
17-9-1967 and at the same time as well as on the same day the
Haveli was given to respondent No. l in lieu of dower which fact
was acknowledged in column No. 16 of the Nikahnama. It was not
a sale, therefore, did not require any registration. The respondent
No. l was, thus, lawful owner of Haveli and findings of two Courts
below, in this regard are not open to any exception. The objection
as to the absence of registration being devoid of merit is repelled.

15. In so far as the objection that respondent No.2 had alienated the
property, received in exchange from third party who should have
been impleaded as party the objection was never pressed at any
stage of the proceedings. Even otherwise the alleged transferee
from respondent No.2 of the property not subject-matter of the
suit, would neither be necessary nor proper party in the present
suit. In present suit, the issue involved was as to whether
respondent No.2 was owner of property and whether the
subsequent transfer thereof to the appellant was valid or not. For
determination of these questions, the presence of any other person
except appellant and respondents Nos. l and 2 were not necessary.
The presence of a vendee from respondent No.2 of other property
may be necessary in the suit against respondent No.2, if suit filed
22 of 1
to recover possession of property given to him in exchange and not
in the present suit. The objection is, therefore, without any
substance.

16. As regards the plea of bona fide transfer, the same is not
proved in accordance with law. It is in the evidence that the
appellant is paternal-uncle (Phupha) of respondent No.2 who was
present at the time of marriage of respondent No.2 with
respondent No.l and that property had been transferred in lieu of
dower to respondent No. 1. The relationship of appellant and
respondent No.2 has not been denied. So much so, the appellant
did not appear in the witness-box to prove the bona fide transfer.
The appellant could not prove that the alleged exchange was made
with the implied or expressed consent of respondent No.'1. On the
contrary, there were serious allegations to this effect that the
appellant in conspiracy of respondent No.2 trespassed to the house
and dispossessed the respondent No. l therefrom. The appellant
did not appear in the witness-box to refute these allegations. The
other basic ingredients of claimed bona fide transfer for value
without notice are missing in this case. Even otherwise, it is not
believable that in such a close relationship with respondent No.2,
appellant would be unaware of title of respondent No. l in regard
to property. The appellant could not prove having made bona fide
inquiries before p the alleged exchange and, on the contrary, the
exchange was made during pendency of earlier suit filed by
respondent No. l against respondent No.2 which reflects
considerably adverse to the plea of bona fide transfer by way of
exchange.

17. For the reasons above, the view taken by the learned
Additional District Judge does not suffer from any error of law. No
ground is made out for interference in the impugned judgment,
resultantly, this appeal being without substance is dismissed.

A.A./W-34/L Appeal dismissed.

23 of 1
1994 M L D 2458

[Peshawar]

Before Muhammad Bashir Khan Jehangiri, J

SHER ALI KHAN and 14 others---Petitioners

versus

ZARNAUSH and 14 others---Respondents

Civil Revision No.121 of 1993, decided on 18th May, 1994.

(a) Qanun-e-Shahadat (10 of 1984)---

---Arts.76 & 77---Secondary evidence relating to document---Production of---


Mode---Admission of secondary evidence without objection ---Effect--Secondary
evidence of contents of document could not be admitted in evidence without
accounting for the non-production of original document in such a manner as to
bring the case within the four corners of Art.76, Qanun-e-Shahadat, 1984---Where
party had alleged that original document was in the possession or power of
person against whom document was sought to be proved, notice to such person
to produce the same was necessary to render secondary evidence admissible
unless such notice was dispensed with under the provision of Art.77, Qanun-e-
Shahadat, 1984---Where, however, secondary evidence was sought to be given
without serving notice to produce original objection to the reception of
secondary evidence should be taken at the time when same was tendered in
evidence-- -Secondary evidence having been admitted without objection in Trial
Court, no such objection would be entertained at subsequent stages viz. before
appellate or revisional Court.

Badsha Meah v. Muhammad Sirajul Islam PLD 1964 Dacca 300 and Arbab Qadir
Bakhsh v. Roshan PLD 1966 Quetta 44 rel.

(b) Registration Act (XVI of 1908)---

----S.17---Family arrangement of property in question, scribed in a deed---


Registration of such deed whether necessary---Recitals, in such document would
reveal that elders of the parties had effected partition between the parties orally,
memorandum whereof was recited in such deed; such deed therefore, would not
require compulsory registration.

Roshan Singh and others v. Zile Singh and others 1989 MLD 2899 rel.

(c) Registration Act (XVI of 1908)---

----S.17---Partition of property through family arrangement recited in


document---Such document even if construed to be partition deed requiring
compulsory registration, when not registered but produced as evidence without
any objection, admissibility thereof, in evidence was not barred.

Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar


Sultana and others PLD 1969 Kar. 474 and Mst. Farooqun Nisa v. Muhammad
Yasin 1987 MLD 2835 rel.

M. Waris Khan for Petitioners. S.

Muhammad Shah Badshah for Respondents.

24 of 1
Date of hearing: 4th May, 1994.

JUDGMENT

This petition in revision under section 115 of the Code of Civil Procedure, 1908,
arises out of a suit brought by Zarnosh since dead and

represented by Mst. Mohsina and another and Shamsul Oamar, respondents


Nos.1 and 2 against Sher Ali and others, petitioners, wherein, besides seeking a
declaration of their proprietary rights in and confirmation of their possession
over 4 Kanals of the disputed land, they had challenged the propriety and
legality of Mutation No.4917 attested on 13-1-1986 and that entries of the
Revenue Record against the respondents were void and ineffective qua. their title
and for perpetual injunction.

2. The claim of the plaintiffs-respondents set up in the plaint briefly stated is that
they were owners-in-possession of the disputed land in the column of cultivation
by virtue of private partition/ family settlement and that defendants were not
legally entitled to transfer the land aforesaid to any one and, therefore, Mutation
No.4917 sanctioned on 13-1-1986 and the entries of the Revenue Record against
the aforesaid partition/family settlement dated 1-4-1961 (photo copy
Exb.P.W.4/2) were void and ineffective qua their rights of ownership.

3. The suit was contested by defendants Nos. l to 5 and 7 to I1 wherein the claim
of the plaintiffs that they were owners-in-possession of the disputed land on the
strength of private partition was controverted. A few legal objections were also
taken up. The pleadings of the parties were reduced to the following issues:---

(1) Whether the suit is within time?

(2) Whether the suit is competent in its present form?

(3) Whether the family partition has been effected between the parties, if so, its
effect?

(4) Whether the plaintiffs are owners to the extent of one Kanal seven
Marlas?

(5) Whether the plaintiffs have a cause of action?

(6) Whether plaintiffs have become owners of the suit land by their family
settlement through agreement deed?

(7) Whether Mutation No.4917 in the name of defendants Nos.24, 25 entered


on behalf of the defendants Nos.1 to 23 is wrong and ineffective upon the
rights of the plaintiffs?

(8) Whether the plaintiffs are owners of the suit land?

(9) Whether the plaintiffs are entitled to the decree as prayed for in the
plaint?

(10) Relief.

In the present round of litigation, after earlier remand order, the learned trial
Judge decided Issue No.2 against the defendants while issue No.1 in favour of
the plaintiffs. Issues Nos.3, 6, 7 and 8 were taken up together and it was held that
"from the evidence available on the file it is clear that original of the
partition/family settlement Exh.P.W.4,'1 is not with the plaintiffs". It was further
observed that "though the plaintiffs had stated that it was handed over to Diyar

25 of 1
Khan after scribing it ....hence in these circumstances as the deed which has been
relied upon by the plaintiff is merely a photostat copy and the plaintiffs were
unable to produce the original…….." It was thus concluded that the claim of the
plaintiffs-respondents that 4 Kanals of land had fallen to their share was not
established and in consequence the impugned Mutation No.4917, dated 13-1-
1986 could not be annulled. The three issues were "decided accordingly". On
Issue No.4 it was held that "the plaintiffs and defendants were co-owners in the
suit land to the extent of their share". In view of the findings on Issues Nos.3, 6, 7
and 8, the plaintiffs were held to have got no cause of action and were, therefore,
disentitled to the decree prayed for and thus issues Nos.5 aid 9 were decided
against the plaintiffs. As a result of these findings, the plaintiffs were non-suited.

4. In appeal, "the material point for consideration" agitated before the learned
Additional District Judge was "as to whether in the absence of original deed the
photostat copy thereof could have been taken into consideration as secondary
evidence?" The learned appellate Court appears to have reversed the findings of
the learned trial Judge on the question of the evidentiary value of the photostat
copy of the alleged crucial deed photo copy Exh.P.W.4/2 and held that "under
Article 76 of Qanun-e-Shahadat the appellants could produce copy of the original
deed as secondary evidence". Rest of the discussion in the appellate order
pertains to the proof of execution of the photo copy Exh.P.W.4/2 of the alleged
partition deed/family settlement which is not proposed to be reiterated at this
juncture. Nonetheless, the appeal was accepted, the judgment and decree non-
suiting the plaintiffs was set aside and the suit of the plaintiffs-respondents was
decreed.

5. Feeling aggrieved, the defendants-petitioners, as stated earlier, have


challenged the appellate judgment and the decree in the instant revision.

6. From the perusal of the judgment and decree of the learned appellate Court it
transpires that procedure for permitting and adducing secondary evidence has
been confused with the proof of execution of the partition deed/family
settlement photo copy Exh.P.W.4/2. Under section 72 of the Qanun-e-Shahadat
(P.O. 10 of 1984) the contents of a document must be proved by primary
evidence, unless secondary evidence becomes admissible for any reasons
mentioned, in Article 76, in which case such contents must be proved by
secondary evidence. Under Article 73, "Primary Evidence" means the document
itself for the inspection of the Court. As against this, under Article 74 "Secondary
Evidence" means and includes---

"(i) certified copies given under the provisions hereinafter contained;

(ii) copies made from the original by mechanical processes which in


themselves insure the accuracy of the copy, and copies compared with
such copies;

(iii) copies made from or compared with the original;

(iv) counterparts of documents as against the parties who did not execute
them;

(v) oral accounts of the contents of a document given by some person who has
himself seen it:'

Both the Courts below appear to have been confused on the concept and legal
implications of the secondary evidence. A few other cases have also come to my
notice on the same pattern. It would, therefore, be appropriate to highlight
different aspects of the concept of secondary evidence in the light of the
provisions of the Qanun-e-Shahadat (P.O. No. 10 of 1984).

26 of 1
7. Under Article 75, documents must be proved by primary evidence except in
the cases mentioned in Article 76. For resolving the controversy clauses (a), (b)
and (c) of Article 76 are relevant which are reproduced hereunder:---

"76. Cases in which secondary evidence relative to documents may be


'given.---Secondary evidence may be given of the existence, condition or
contents of a document in the following cases:--

(a) when the original is shown or appears to be in the possession or power of


the person against whom the document is sought to be proved, or of any
person out of reach of, or not subject to, the process of the Court, or of any
person legally bound to produce it, and when, after the notice mentioned
in Article 77 such person does not produce it;

(b) when the existence, condition or contents of the original have beg s,
proved to be admitted in writing by the person against whom it is proved
or by his representative-in-interest;

(c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his
own default or neglect, produce it in reasonable time.

In cases (a), (c), (d) and (e), any secondary evidence of the contents of the
document is admissible.

In case (b), the written admission is admissible."

It would thus be noticed that under Qanun-e-Shahadat, when the terms of a


contract, or of grant, or of any other disposition of property have been reduced to
the form of a document, and in all cases in which any matter is required by law
to be reduced to the form of a document, no evidence shall be given in proof of
the terms of such contract, grant or other disposition of property, or of such
matter except the document itself or secondary evidence of its contents in cases
in which secondary evidence is admissible under the provisions of the Qanun-e-
Shahadat. It is thus settled that it is for the person tendering the evidence that the
case is fit for reception of secondary evidence and that one or more of six clauses
of Article 76 ibid are applicable to the circumstances of the case. Again,
secondary evidence of contents of a document cannot be admitted in evidence
without the non-production of the original being accounted for in such a manner
as to bring the case within one or more of the clauses to Article 76 of the Order.
In (1) Badsha Meah v. Muhammad Sirajul Islam PLD 1964 Dacca 300 and (2)
Arbab Qadir Bakhsh v. Roshan PLD 1966 Quetta 44 it was held that where a
certified copy of a document was produced without calling for the original nor
was it proved that the original had been lost, the certified copy was not held
admissible in evidence. The ratio of these two pronouncements and plethora of
other case law is that the party alleging that original of a document is shown or
appears to be in the possession or power of the person against whom the
document is sought to be proved, notice to the adversary to produce document is
necessary to render secondary evidence admissible under clause (a) of Article 76
ibid unless notice be excused under the provisions of Article 77.

8. Nonetheless if the secondary evidence is sought to be given without serving a


not:::-- to produce, objection to the reception of secondary evidence should be
taken up at the time when it is tendered in evidence. If the evidence is admitted
without objection in the trial Court, the Appellate Court or the revisional Court
will not entertain the objection.

9. In the instant case, notwithstanding the omission of the piatntiffs respondents


to give notice to the defendants-petitioners it) produce the original partition
deed/family settlement photo copy Exh.P.W.4/2, the defendants-petitioners
27 of 1
ignored either consciously or unconsciously due to ignorance of law to take
objection to the reception in evidence of the aforesaid photo copy of the deed
when for the first time Zarnosh plaintiff P.W. tendered it in evidence. Again, it
was tendered in the evidence of Qayamuddin (P.W.5) and that of Azam Khan
(P.W.6) without any such objection.

10. In consequence and without endorsing the premises on the basis of which the
learned appellate Court had accepted the deed photo copy Exh.P.W.4/2 in
evidence, I hold that notice by the plaintiffs-respondents to defendants-
petitioners to produce the original as required under Article 77 ibid was a sine
qua non for adducing secondary evidence of the execution of the family
settlement. Nonetheless, the omission by the latter to raise objection to the
reception thereof in evidence, I am constrained by law, not to entertain the
objection at this revisional stage.

11. The learned counsel for the defendants-petitioners has taken serious
exception to the non-registration of deed photo copy Exh.P.W.4/2 on the
ground-that it was a partition deed admittedly involving property worth more
than Rs.100 which required compulsory registration under section 17 of the
Registration Act (XVI of 1908) and having not been registered would not confer
any title. This contention of the learned counsel is equally fallacious. The deed
photo copy Exh.P.W.4/2 for all intents and purposes is a family arrangement and
not a regular partition deed. The recitals therein would reveal that the elders of
the village of the parties have effected partition between the parties orally, the
memorandum whereof was recited in the settlement photo copy Exh.P.W.4/2
and, therefore, it does not require compulsory registration. (See Roshan Singh
and others v. Zile Singh and others 1989 MLD 2899).

12. The deed photo copy Exh.P.W.4/2 whether it is construed to be a family


settlement is saved from inadmissibility in evidence owing to elimination of sub-
clause (c) from section 49 of the Registration Act. Again in the light of Pakistan
Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana
and others PLD 1969 Kar. 474 as well as on general principles, "it is clear that
question of the admissibility or otherwise of a document is indeed nothing more
than a mere matter of procedure." The document Exh.P.W.4/2 would, therefore,
become admissible in evidence although it is not registered as required by
section 107 of the Transfer of Property Act, moreso when the Transfer of
Property Act has not been made applicable to this Province. This principle has
been reiterated in a recent judgment of Sindh High Court In re: Mst. Farooqun
Nisa v. Muhammad Yasin 1987 MLD 2835. Respectfully subscribing to the above
dictum, it is held that even if the document photo copy Exh.P.W.4/2 is construed
to be partition deed requiring compulsory registration under section 17 of the
Registration Act, 1908, having not been registered but produced as evidence
without any objection, the admissibility thereof in evidence is not barred.

13. On a careful review of evidence on record, I have come to the conclusion that
the document photo copy EXh.P.W.4/2 is satisfactory piece of documentary
evidence to be relied upon. In other words, the plaintiffs respondents have been
able to prove the execution of the document by the testimony of Qayamuddin
(P.W.5) or the scribe Azam Khan (P.W.6) the marginal witness thereof. There is
nothing on the record to show that they falsely deposed in regard to the
execution of this document. Even the defendant-petitioners have not challenged
that signatures of those witnesses were forged or fictitious as no cross-
examination has been directed on that score. As stated earlier, it is now rule of
evidence that if execution of a deed is proved, and its reception in evidence goes
without challenge to its non-registration, the question whether it has not been
registered would have no bearing upon the merits of the case.

14. Consequently, I find no substance in this revision petition which is dismissed


with costs.
28 of 1
AA./1622/P Revision
dismissed.

29 of 1
1989 M L D 2899

[Supreme Court of India]

Present: A.P. Sen and B. C. Ray, .JJ

ROSHAN SINGH and others--Appellants

Versus

ZILE SINGH and others--Respondents

Civil Appeal No.2185 of 1987 (in S.L.P. No.10138 of 1986), decided on 24t
February, 1988.

Registration Act (XVI of 1908)--

---Ss. 17(1)(b) & 49--Transfer of Property Act (IV of 1882), S.5--`Fami


arrangement' and `Partition'--Distinction--Partition of ancestral properties
Subsequent memorandum of partition embodying factum of partition--Held
memorandum was only family arrangement and its registration was not
necessary.

The plaintiffs and defendants belonged to two branches of the family ai had joint
ancestral properties. There was some partition and in a decd execute by the
parties, the factum of partition was embodied. This decd was n registered.
Dispute arose as to the admissibility of the decd in evidence:

Held, that admittedly there was a partition by metes and bounds of tl


agricultural lands and the shares allotted to the two branches were separate
mutated in the Revenue records. There was thus a disruption of joint status. .4
that remained was the partition of the ancestral residential house. The document
does not effect a partition but merely records the nature of the arrangement
arrived at as regards the division of the remaining property. A mere agreement
divide does not require registration. But if tile writing itself effects a division,
must be registered

It is well-settled that while an instrument of partition which operates is intended


to operate as a declared volition constituting or severing owners and causes a
change of legal relation to the property divided amongst the part to it, requires
registration under S. 17 (1) (b) of the Act, a writing which merely recites that
there has in time past been a partition, is not a declaration of will, but a mere
statement of fact, and it does not require registration. The essence of the matter is
whether the deed is a part of the partition transaction or contains merely an
incidental recital of a previously completed transaction. The use of the past tense
does not necessarily indicate that it is merely a recital of transaction. It is equally
well-settled that a mere list of properties allotted a partition is not an instrument
'of partition and does not require registration Section 17 (1) (b) lays down that a
document for which registration is compulsory should, by its own force, operate
or purport to operate to create or declare some right in immovable property.
Therefore, a mere recital of what has already taken place cannot be held to
declare any right and there would be no necessity of registering such a
document. Two propositions must therefore flow: (1) A partition may be effected
orally; but if it is subsequently reduced into a form a document and that
document purports by itself to effect a division and embodies all the terms of
bargain, it will be necessary to register it. If it is not registered section 49 of the
Act will prevent its being admitted in evidence. Secondly evidence of the factum
of partition will not be admissible by reason of section 9 of the Evidence Act,
1872. (2) Partition lists which are mere records of a previously completed

30 of 1
partition between the parties, will be admitted in evidence even though they are
unregistered, to prove the fact of partition.

Partition, unlike the sale or transfer which consists in its essence of a single act, is
a continuing slate of facts. It dues 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.

The true principle that emerges can be stated thus: 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 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 the first time.

Further it is also well-settled that the document though unregistered can


however be looked into for the limited purpose of establishing a severance in
status, though that severance would ultimately affect the nature of the
possession held by the members of the separated family as co-tenants. The
document in the instant case can be used for the limited and collateral purpose of
showing that the subsequent division of the properties allotted was in pursuance
of the original intention to divide. In any view, the document was a mere list of
properties allotted to the shares of the parties.

S.N. Kacker; Awadh Behari, Senior Advocate and A.K. Sanghi for Appellants.

U.R. Lalit, Senior Advocate and R.S. Hegde and K.R. Nagaraja, Advocate for
Respondents.

JUDGMENT

A.P. SEN, J.--This appeal by special leave by the defendants arises in a suit for a
declaration and injunction brought by the plaintiffs and in the alternative for
partition. They sought a declaration that they were the owners in possession of
the portions of the property delineated by letters B-2, B-3, B-4 and B-5 in the
plaint map which had been allotted to them in partition, and in the alternative
claimed partition and separate possession of their shares. The real tussle between
the parties is to gain control over the plot in question marked B-2 in the plaint
map, known as Buiyanwala gher. Admittedly, it was not part of the ancestral
property but formed part of the village abadi, of which the parties were in
unauthorised occupation. The only question is whether the plaintiffs were the
owners in possession of the portion marked B-2 as delineated in the plaint map.
That depends on whether the document Exh. P12 dated 3rd August, 1955 was an
instrument of partition and therefore, inadmissible for want of registration under
section 49 of the Indian Registration Act, 1908, or was merely a memorandum of
family arrangement arrived at by the parties with a view to equalisation of their
shares.

2. The facts giving rise to this appeal are that the plaintiffs who are four brothers
are the sons of Soonda. They and the defendants are the descendants of the
common ancestor Chhatar Singh who had two sons Jai Ram and Ram Lal.
Soonda was the son of Ram Lal and died in 1966. Jai Ram in turn had two sons
Puran Singh and Bhagwana. The latter died issueless in 1916-17. Puran Singh
also died in the year 1972 and the defendants are his widow, three sons and two
daughters. It is not in dispute that the two branches of the family had joint
ancestral properties, both agricultural and residential in village Nasirpur, Delhi
Cantonment. The agricultural land was partitioned between Puran Singh and
31 of 1
Soonda 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 properties
including the house, gher/ghetwar etc. The factum of partition was embodied in
the memorandum of partition Exh.P.12 dated 3rd August, 1955 and bears the
thumb-impressions and signatures of both Puran Singh and Soonda. In terms of
this partition, the ancestral residential house called rihaishi and the open space
behind the same shown as portions marked A-1 and A-2 in the plaint map
Exh.P.W.25/1, fell to the share of Puran Singh. Apart from this, Puran Singh was
also allotted gher shown as A-3 in the plaint map admeasuring 795 square yards.
Thus, the total area falling to the share of Puran Singh came to 2417 square yards.
The plaintiffs' ancestor Soonda on his part got a smaller house called Baithak
used by the male members and visitors, marked B-1 in the plaint map having an
area of 565 square yards. Apart from the house marked B-1, Soonda also got
ghers marked B-2 to B-5, demarcated in yellow in the plaint map and thus the
total area got by Soonda also came to 2417 square yards.

3. In terms of this partition, the plaintiffs' claim that the parties have remained in
separate exclusive possession of their respective properties. However, in
February, 1971 the plaintiffs wanted to raise construction over the gher marked
B-2 in the plaint map and started constructing a boundary wall. Defendants Nos.
1-3, sons of Puran Singh, however, demolished the wall as a result of which
proceedings under section 145 of the Code of Criminal Procedure, 1898 were
drawn against both the parties about this property. The Sub-Divisional
Magistrate, Delhi Cantt., New Delhi by her order, dated 26th April, 1972
declared that the second party, namely Puran Singh, father of defendants Nos. 1-
3, was in actual possession of the disputed piece of land marked B-2 on the date
of the passing of the preliminary order and within two months next before such
date and accordingly directed delivery of possession thereof to him until evicted
in due course of law. On revision, the Additional Sessions Judge, Delhi by order,
dated 4th March, 1974 agreed with the conclusions arrived at by the learned
Sub-Divisional Magistrate. On further revision, a learned Single Judge (M.R.A.
Ansari, J.) by his order dated 6th August, 1975 affirmed the findings reached by
the Courts below on condition that while party No.2 Puran Singh would remain
in possession of the property in dispute, he would not make any construction
thereon. The plaintiffs were accordingly constrained to bring the suit for
declaration and injunction and in the alternative, for partition.

4. After an elaborate discussion of the evidence adduced by the parties, the


learned Single Judge (D.R. Khanna, J.) by his judgment, dated April 18, 1980
came to the conclusion, on facts, that the plaintiffs were the owners m possession
of the property marked as B-1, a smaller house known as Baithak and the
disputed plot B-2, and the properties marked as A-1, the ancestral residential
house called Rihaishi and A-2, the open space behind the same, belonged to the
defendants. Taking an overall view of the evidence of the parties in the light of
the circumstances, the learned Single Judge came to the conclusion that the gher
marked B-2 belonged to the plaintiffs and it had fallen to their share in the
partition of 1955 and later confirmed in the settlement dated 31st January, 1971.
In coming to that conclusion, he observed:-

"I have little hesitation that the portions marked A-1 and A-2 and B-1 and
B-2 were ancestral residential houses or Ghers of the parties and Soonda
and Puran had equal share in them. The residential house shown as A-1
and the open space behind that marked as A-2 were admittedly given to
Puran in the partition of 1955. Similarly B-1 was allotted to Soonda. I am
unable to hold that B-2 was also allotted to Puran. This would have been
wholly unequitable and could not have by any stretch reflected the equal
division of these joint properties. Puran in that case apart from getting the
residential house fur which he paid Rs.3,000 to Soonda would have also
got area far in excess if defendants' case that Gher B-2 also belongs to
them is accepted. In any natural and equitable division of the properties,
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that allotment of the residential house marked `A' and the-open space
behind the same to Puran, Baithak B-1 and Gher No. 1 could have
naturally been given to Soonda. That it was actually done so, gets clarified
in the document EXh.P.l, dated 31-1-1971 which was written in the
presence of a number of villagers between Puran and Soonda.'

The learned Judge went on to say that the document Exh.P.12 was executed by
Puran Singh and Soonda in the presence of the villagers who attested the same,
and there was some sanctity attached to it. What is rather significant is that
Puran Singh was required to pay Rs.3,000 as owelty money fur edualisation of
shares.

5. Aggrieved, the defendants preferred an appeal under Cl. 10 of tile Letters


Patent. A Division Bench of the High Court (D.K. Kapur. CJ. and N.N. Goswamy,
J.) by its judgment dated 4th August, 1986 affirmed the reasoning and conclusion
arrived at by the learned single Judge and accordingly dismissed the appeal.
Both the learned single Judge as well as the Division Bench have construed the
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 section 49 of the Act and have referred to certain
decisions of this Court in support of that conclusion.

6. In support of the appeal, Shri S.N. Kacker learned counsel for the appellants
has mainly contended that the document Exh.P.12 is an instrument of partition
and therefore, required registration under S.17 of the Act. It is urged that the
High Court has on a misconstruction of the: terms wrongly construed it to be a
memorandum of family arrangement and admissible fur the collateral purpose
of showing nature of possession under the proviso to section 4 of the Act. In
substance, the submission is that the document dues not contain any recital of a
prior, completed partition but on its terms embodies a decision which is to be tile
sole repository of the right and title of the parties i.e. according to which
partition by metes and bounds had to be effected. We regret, we find it rather
difficult to accept the contention.

7. In order to deal with the point involved it is necessary to reproduce the terms
of the document Exh.P.12 which read:-

"Today after discussion it has been mutually agreed and decided that house
rihaishi (residential) and the area towards its west which is lying open i.e. the
area on the back of rihaishi (residential) house has come to the share of
Chaudhary Pooran Singh Jaildar.

(2) House Baithak has come to the share of Chaudhary Soonda. The shortage
in area as compared to the house rihaishi and the open area referred to
will be made good to Chaudhary Soonda from the field and gitwar in the
eastern side.

(3) Rest of the area of the field and gitwar will be half and half of each of co-
sharers. The area towards west wall be given to Chaudhary Pooran Singh
and towards east will be given to Chaudhary Soonda.

(4) Since house rihaishi has come to the share of Chaudhary Pooran Singh
therefore, he will pay Rs.3,000 to Chaudhary Soonda.

(5) A copy of this agreement has been given to each of tile co-sharers.

Dated 3-8-1955

(Sol.) in Hindi L.T.1

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Pooran Singh Zaildar Ch. Soonda'

8. According to the plain terms of the document Exh. P.12, it is obvious that it
was not an instrument of partition but merely a memorandum recording the
decision arrived at between the parties as to the manner in which the partition
was to be effected. The opening words of the document Exh. P.12 are: `Today
after discussion it has been mutually agreed and decided that ....'. What follows
is a list of properties allotted to the respective parties. From these words, it is
quite obvious that the document Exh. P-12 contains the recital of past events and
does not itself embody the expression of will necessary to effect the change in the
legal relation contemplated. So also the Panch Faisla Exh. P-1 which confirmed
the arrangement so arrived at, opens with the words "Today on 31-1-1971 the
following persons assembled to effect a mutual compromise between Chaudhary
Puran Singh and Chaudhary Zile Singh and unanimously decided that ....'. The
purport and effect of the decision so arrived at is given thereafter. One of the
terms agreed upon was that the gher marked B2 would remain in the share of
Zile Singh, representing the plaintiffs.

9. It is well-settled that while an instrument of partition which operates or is


intended to operate as a declared volition constituting or severing ownership
and causes a change of legal relation to the property divided amongst the parties
to it, requires registration under section 17 (1) (b) of tile Act, a writing which
merely recites that there has in time past been a partition, is not a declaration of
will, but a mere statement of fact, and it does not require registration. The
essence of the matter is whether the decd is a part of [lie partition transaction or
contains merely an incidental recital of a previously completed transaction. The
use of the past tense does not necessarily indicate that it is merely a recital of a
past transaction. It is equally well-settled that a mere list of properties allotted at
a partition is not an instrument of partition and does not require registration.
Section 17(1) (b) lays down that a document for which registration is compulsory
should, by its own force, operate or purport to operate to create or declare some
right in immovable property. Therefore, a mere recital of what has already taken
place cannot be held to declare any right and there would be no necessity of
registering such a document. Two propositions must there for flow: (a) A
partition may be effected orally; but if it is subsequently reduced into a form of a
document and that document purports by itself to effect a division and embodies
all the terms of bargain, it will be necessary to register it. If it be not registered,
section 49 of the Act will prevent its being admitted in evidence. Secondly
evidence of the factum of partition will not be admissible by reason of S.91 of the
Evidence Act, 1872. (2) Partition lists which are mere records of a previously
completed partition between the parties, will be admitted in evidence even
though they are unregistered, to prove the fact of partition: See Mulla's
Registration Act, 8th Edn. pp.54-57.

10. The tests for determining whether a document is an instrument of partition or


a mere list of properties, have been laid down in a long catena of decisions of the
Privy Council, this Court and the High Courts. The question was dealt with by
Vivian Bose, J. in Narayan Sakharam Patil v. Co-operative Central Bank,
Malkapur, ILR (1938) Nag. 604: A I R 1938 Nag. 434. Speaking for himself and Sir
Gilbert Stone, C.J. the learned .Judge relied upon the decisions of tile Privy
Council in Bageshwari Charan Singh v. Jagarnath Kuari, (1932) 59 Ind. App. 130:
A I R 1932 PC 55 and Subramanian v. Lutchman, (1923) 50 Ind. App. 77: A I R
1923 PC 50 and expressed as follows:

"It can be accepted at once that mere lists of property do not form an
instrument `of partition and so would not require registration, but what
we have to determine here is whether these documents are mere lists or in
themselves purport to 'create, declare, assign, limit or extinguish ...any
right, title or interest' in the property which is admittedly over Rs.100 in
value. The question is whether these lists merely contain the recital of past
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events or in themselves embody the expression of will necessary to effect
the change in the legal relation contemplated."

Sir Gilbert Stone, C.J. speaking for himself and Vivian Bose, J. in Ganpat Gangaji
Patil v. Namdeo Bhagwanji Patil, ILR (1942) Nag. 73: A I R 1941 Nag. 209
reiterated the same principle. See also: other cases in Mulla's Registration Act at
pp. 5G-57.

11. Even otherwise, the document Exh. P 12 can be looked into under the proviso
to S.49 which allows documents which would otherwise be excluded, to be used
as evidence of `any collateral transaction not required to be effected by a
registered instrument'. In Varada Pillai v. Jeevarathnammal, (1919) 46 Ind. App.
285: A I R 1919 PC 4-1 the Judicial Committee of the Privy Council allowed an
unregistered decd of gift which required registration, to be used not to prove a
gift because no legal title passed but to prove that the donee thereafter held in
her own right. We find no reason why the same rule should not be made
applicable to a case like the present.

12. 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.

13. On its true construction, the document Exh. P-12 as well as the subsequent
confirmatory panch faisla Exh. P-1 merely contains the recitals of a past event,
namely, a decision arrived at between the parties as to the manner it which the
parties would enjoy the distinct items of joint family property in severalty. What
follows in Exh. P.12 is a mere list of properties allotted at a partition and it cannot
be construed to be an instrument of partition and therefore did not require
registration under S.17 (1) (b) of the Act. That apart, the document could always
be looked into for the collateral purpose of proving the nature and character of
possession of each item of property allotted to the members.

14. The matter can be viewed from another angle. The true and intrinsic character
of the memorandum Exh.P.12 as later confirmed by the Panch Faisla Exh. P-1
was to record the settlement of family arrangement. The parties set up competing
claims to the properties and there was an adjustment of the rights of the parties.
By such an arrangement, it was intended to set at rest competing claims amongst
various members of the family to secure peace and amity. The compromise was
on the footing that there was an antecedent title of the parties to the properties
and the settlement acknowledged and defined title of each of the parties. The
principle governing this was laid down by the Judicial Committee in Khunni Lal
v. Gobind Krishna Narain, (1911) 38 Ind App 87. Ameer Ali, J. delivering the
judgment of the Privy Council quoted with approval the following passage from
the judgment in Lalla Oudh Beharee Lall v. Rance Mewa Koonwer (1868) 3 Agra
HCR 82 at p. 84:

"The true character of the transaction appears to us to have been a


settlement between the several members of the family of their disputes,
each one relinquishing all claim in respect of all property in dispute other
than that falling to his share, and recognizing tile right of the others as
they had previously asserted it to the portion allotted to them
respectively. It was in this light, rather than as conferring a new distinct
title on each other, that the parties themselves seem to have regarded the
arrangement, and we think that it is the duty of the Courts to upheld and
give full effect to such an arrangement."

15. This view was adopted by the Privy Council in subsequent decisions and the
High Courts in India. To the same effect is the decision of this Court in Sahu
Madho Das v. Mukand Ram, (1955) 2 SCR 22: A I R 1955 SC 481). The true
35 of 1
principle that emerges can be stated thus: 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 complied with, since the tranferees 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 the first time. As pointed out
by this Court in Sahu Madho Das's case, 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.

16. In the present 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 records. There was thus a
disruption of joint status. All that remained was the partition of the ancestral
residential house called rihaishi, the smaller house called baithak and
ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely
records the nature of the arrangement arrived at as regards the division of the
remaining property. A mere agreement to divide does not require registration.

But if the writing itself effects a division, it must be registered. See: Rajangam
Ayyar v. Rajangam Ayyar, (1923) 69 Ind Cas 123: A I R 1922 PC 266 and Nani Bai
v. Gita Bai, A I R 1958 SC 706. It is well-settled that the document though
unregistered can however be looked into for the limited purpose of establishing a
severance in status, though that severance would ultimately affect the nature of
the possession held by the members of the separated family as co-tenants. The
document Exh.P.12 can be used for the limited and collateral purpose of showing
that the subsequent division of the properties allotted was in pursuance of the
original intention to divide. In any view, the document Exh. P.12 was a mere list
of properties allotted to the shares of the parties.

17. In the result, the appeal fails and is dismissed with costs.

M.B.A./ 93/F.C.

Appeal dismissed.

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