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2022 (1) TMI 1359 - SC - Indian LawsPrinciples of res-judicata - Seeking partition and separate possession of one-fourth share in the suit Schedule properties - main plank of argument of the Appellant is that the suit filed by the Plaintiff-Appellant herein could not have been dismissed on the principle of res judicata by holding that in A.S. No. 37 of 1993 there was already a clear finding to the effect that there was a partition of the suit properties between the members of the joint family and hence a fresh suit for partition and separate possession vis- -vis the same properties could not have been filed by the Plaintiff as it is not maintainable. HELD THAT - The award is in the form of a resolution on the strength of the statement given by Periyaiya Servai and the consent statement given by P.R. Ramaswamy and P.R. Kasilingam the two major sons of Periyaiya Servai. There are details as to how the properties had to be dealt with. The parties had also stated that they had read the above resolution and had agreed wholeheartedly to obey the provisions thereof. On a perusal of the award which is in the form of a resolution it is clear that there was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement. Therefore under Annexure P-10 (Ex. B-13) there was no right created in favour of any party in any specific item of joint family property. The said document which has been styled as an award is only a memorandum of understanding/family arrangement to be acted upon in future. Hence in our considered view the said document did not create rights in specific properties or assets of the family in favour of specific persons. Therefore the same did not require registration Under Section 17(1)(e) of the Act. The said document was in the nature of a document envisaged Under Section 17(2)(v) of the Act. It can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration Under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration Under Section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property but merely creates a right to obtain another document which will when executed create a right in the person claiming relief the former document does not require registration and is accordingly admissible in evidence. In the instant case exhibit B-13 award is more in the nature of a memorandum of understanding a mere agreement of the steps to be taken in future for the division of the properties. Hence the said document did not require registration Under Section 17(1)(b) of the Act as under the said document no creation of rights in any specific joint family property was effected. The next question that arises for our consideration is whether the finding of the first appellate court in A.S. No. 37 of 1993 that the suit properties were partitioned in the year 1964 is binding on the parties and hence a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable - Having regard to the fact that in the instant case there has been no challenge to the finding of partition between the parties till date and the same has attained finality we do not think that the Appellant can seek to rely on the judgment in Asrar Ahmed 1946 (7) TMI 6 - PRIVY COUNCIL . Hence the partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon a fresh suit for partition and separate possession of the suit properties was not at all maintainable. The principle of res judicata squarely applies in the present case. Appeal dismissed.
Issues Involved:
1. Validity of the 1964 partition. 2. Applicability of the principle of res judicata. 3. Validity of the will dated 26th January 1994. 4. Requirement of registration for the 1964 partition award. Detailed Analysis: 1. Validity of the 1964 Partition: The Plaintiff claimed that the joint family properties were never partitioned, and thus he was entitled to a share. However, the Defendants argued that a partition had already occurred in 1964, dividing the properties among the sons of Periyaiya Servai. The Trial Court noted that the 1964 partition deed was valid and confirmed by the Sub-Court in A.S. No. 37 of 1993. The First Appellate Court and the High Court upheld this finding. The Supreme Court agreed, stating that the award was a memorandum of understanding and did not require registration under Section 17(1)(e) of the Registration Act, 1908, as it did not create rights in specific properties but was a future arrangement. 2. Applicability of the Principle of Res Judicata: The Trial Court held that the suit was barred by res judicata due to the finality of the 1993 judgment, which confirmed the 1964 partition. The First Appellate Court and the High Court upheld this decision. The Supreme Court reiterated that the finding of partition in 1964, having attained finality, barred the Plaintiff from filing a fresh suit for partition. The principle of res judicata applied, preventing re-litigation of the same issue. 3. Validity of the Will Dated 26th January 1994: The Plaintiff asserted his right to the property based on a will executed by Periyaiya Servai. The Defendants contested the will's validity, claiming Periyaiya Servai had no share in the properties post-1964 partition and thus could not bequeath any property. The Trial Court found the will invalid as Periyaiya Servai had no right to execute it. The First Appellate Court and the High Court upheld this finding. The Supreme Court concurred, stating that since the properties were already partitioned in 1964, Periyaiya Servai had no share to bequeath. 4. Requirement of Registration for the 1964 Partition Award: The Plaintiff argued that the 1964 partition award required registration under Section 17(1)(e) of the Registration Act, 1908, and was invalid without it. The Defendants contended that the award did not require registration as it was a family arrangement. The Supreme Court held that the award was a mere memorandum of understanding and did not create specific rights in immovable property, thus exempt from registration under Section 17(2)(v). The Court stated that the award outlined future actions for property division and did not itself create rights, making registration unnecessary. Conclusion: The Supreme Court upheld the judgments of the lower courts, dismissing the Plaintiff's suit for partition and separate possession. The Court confirmed the validity of the 1964 partition, the applicability of res judicata, the invalidity of the will, and the non-requirement of registration for the 1964 award. The appeal was dismissed, and the parties were directed to bear their own costs.
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