K. ARUMUGA VELAIAH versus P.R. RAMASAMY AND ANR. on 27 January 2022

[2022] 11 S.C.R. 692

SUPREME COURT REPORTS

[2022] 11 S.C.R.

K. ARUMUGA VELAIAH

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v.

P.R. RAMASAMY AND ANR.

(Civil Appeal No. 2564 of 2012)

BJANUARY 27, 2022

[L. NAGESWARA RAO, B. R. GAVAI ANDB. V. NAGRATHNA, JJ.]

Code of Civil Procedure, 1908 – Res Judicata –RegistrationAct, 1908 – s.17 – One ‘PS’ had two wives – From his first wife, heChad 4 daughters and a son (first defendant) and through his secondwife he had two sons; second defendant and late‘M’ – Seconddefendant’s son is plaintiff – Plaintiff has averred that he has aright to one-fourth share of PS under a will dated 26.01.1994 –Plaintiff has sought partition and separate possession of his one-fourth share in the suit schedule properties – District MunsiffDdismissed the suit – First Appellate Court also dismissed the appealand cross appeal – First Appellate Court held that in an earlierAppeal Suit No. 37 of 1993 that the suit properties were partitionedin the year 1964 and were binding on the parties and hence a freshsuit filed by the plaintiff seeking the very same relief was notEmaintainable – High Court held that in an earlier Appeal Suit No.37 of 1993 that all the joint family properties had been divided intothree shares in favour of the sons of PS – Against the said decision,no appeal had been preferred and hence the finding regarding thepartition had attained finality – Therefore, the instant suit was barredby the principle of res judicata – Before the Supreme Court, pointFfor consideration whether, the suit filed by the plaintiff is barred inview of the judgment and decree passed in A.S. No. 37 of 1993dated 23.03.1999, wherein it was held that a partition had beenaffected in relation to the joint family properties between the firstand second defendants and late ‘M’ in the year 1964 – Held:GPartition of this property took place in the year 1964 by virtue ofan award dated 13.06.1964 passed by the panchayatdars – Thesaid document was only a memorandum of understanding/familyarrangement to be acted upon in future – The said document didnot create rights in specific properties or assets of the family, infavour of specific persons – The same did not require registrationHu/s. 17 (1) (e) of the Act – Further, having regard to the fact that in the instant case there has been no challenge to the finding ofpartition between the parties till date and the same has attainedfinality – Hence, the partition of the ancestral/joint family propertieshaving found to have taken place in the 1964 and the same havingbeen acted upon, a fresh suit for partition and separate possessionof the suit properties was not at all maintainable – The principle ofres judicata squarely applies in the present case – High Court wasjustified in affirming the judgments of the First Appellate Court aswell as the Trial Court dismissing the suit filed by the appellant-plaintiff.

Dismissing the appeal, the Court

HELD: 1. On a perusal of the award which is in the form ofa resolution, it is clear that there was no right created in anyspecific item or asset of the joint family properties in any personbut the parties resolved to take certain actions in pursuance of afamily arrangement. Therefore under Annexure P-10 (Ex. B-13)there was no right created in favour of any party in any specificitem of joint family property. The said document which has beenstyled as an award is, in our view, only a memorandum ofunderstanding/family arrangement to be acted upon in future.Hence, in our considered view, the said document did not createrights in specific properties or assets of the family, in favour ofspecific persons. Therefore, the same did not require registrationunder section 17 (1) (e) of the Act. [Para 23][719-A-C]

2. Having regard to the aforesaid provisions of law it canbe safely concluded that the said award was a mere arrangementto divide the properties in future by metes and bounds asdistinguished from an actual deed of partition under which thereis not only a severance of status but also division of joint familyproperties by metes and bounds in specific properties. Hence itwas exempted from registration under Section 17 (2) (v) of theAct. A document of partition which provides for effectuating adivision of properties in future would be exempt from registrationunder section 17 (2) (v). The test in such a case is whether thedocument itself creates an interest in a specific immovableproperty or merely creates a right to obtain another document oftitle. If a document does not by itself create a right or interest in AB

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Aimmovable property, but merely creates a right to obtain anotherdocument, which will, when executed create a right in the personclaiming relief, the former document does not require registrationand is accordingly admissible in evidence. [Para 24][720-A-D]

3. In the instant case exhibit B-13 award is more in theBnature of a memorandum of understanding, a mere agreement ofthe steps to be taken in future for the division of the properties.Hence, the said document did not require registration underSection 17 (1) (b) of the Act as under the said document nocreation of rights in any specific joint family property was effected.[Para 25][720-D-E]C

3. Having regard to the fact that in the instant case therehas been no challenge to the finding of partition between theparties till date and the same has attained finality. This Courtdoes not think that the appellant can seek to rely on the judgmentin Asrar Ahmed. Hence, the partition of the ancestral/joint familyDproperties having found to have taken place in the 1964 and thesame having been acted upon, a fresh suit for partition andseparate possession of the suit properties was not at allmaintainable. The principle of res judicata squarely applies inthe present case. This Court holds that the High Court wasEjustified in affirming the judgments of the First Appellate Courtas well as the Trial Court dismissing the suit filed by the appellant.The appeal is accordingly dismissed. [Paras 29 & 31][721-E-F;723-B]

Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3FSCR 639 - held inapplicable.

Mohanlal Goenka v. Benoy Kishna Mukherjee AIR1953 SC 65 : [1953] SCR 377; State of West Bengal v.Hemant Kumar Bhattacharjee AIR 1966 SC 1061:[1963] Suppl. SCR 542; Satish Kumar and Ors. v.GSurinder Kumar and Ors. [1969] 2 SCR 244; Champalalvs. Mst. Samarth Bai [1960] 2 SCR 810; KashinathsaYamosa Kabadiv. Narsinga Bhaskarsa Kabad [1961]3 SCR 792; Kale and Ors. v. Deputy Directorof consolidation [1976] 3 SCC 119 : [1976] 3 SCR

K. ARUMUGA VELAIAH v. P.R. RAMASAMY AND ANR.

202; Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B.Jeejeebhoy AIR 1971 SC 2355 : [1970] 3 SCR 830;Ravinder Kaur Grewal and Ors. v. Manjit Kaur andOrs. [2020] 9 SCC 706 Ripudaman Singh v. TikkaMaheshwar Chand [2021] 7 SCC 446 – relied on.

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Shiromani and Ors. v. Hem Kumar and Ors. [1968] 3SCR 639 12; Satish Kumar and Ors. v. Surinder Kumarand Ors. [1969] 2 SCR 244; Lachhman Dass v. RamLal [1989] 3 SCC 99 12 : [1989] 2 SCR 250; Kale andOrs. v. Deputy Director of Consolidation [1976] 3 SCC119 : [1976] 3 SCR 202; Bhoop Singh v. Ram SinghMajor and Ors. [1995] 5 SCC 709 : [1995] 3 Suppl.SCR 466 16; Ravinder Kaur Grewal and Ors. v. ManjitKaurand Ors. [2020] 9 SCC 706; Ripudaman Singh v.Tikka Maheshwar Chand [2021] 7 SCC 446; LachhmanDass v. Ram Lal [1989] 3 SCC 99 : [1989] 2 SCR 250;Ratan Lal Sharma v. Purushottam Harit [1974] 3 SCR109; Bhoop Singh v. Ram Singh Major and Ors. [1995]5 SCC 709 : [1995] 3 Suppl. SCR 466; Nanni Bai vGita Bai [1959] 1 SCR 479 – referred to.

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Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947PC 1; Ramaswamy Ayyar and Anr. v. Tirpathi Naik ILR27 Mad 43; Ranjangam Iyer v. Ranjangam Iyer AIR1922 PC 266 – referred to.

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Case Law Reference

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696SUPREME COURT REPORTS

[2022] 11 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.2564 of

2012.

EFrom the Judgment and Order dated 06.08.2007 of the High Courtof Madras at Madurai Bench in S.A. No.92 of 2007.

V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchander, Mrs. RevathyRaghavan, Advs. for the Appellant.

FK. K. Mani, Ms. T. Archana, Advs. for the Respondents.

The Judgment of the Court was delivered by NAGARATHNA, J.

The plaintiff in Original Suit No. 101 of 2004 has assailed theGjudgment and decree passed in Second Appeal No. 92 of 2007 by theMadurai Bench of the High Court of Judicature of Madras dated 6thAugust, 2007 by which, the judgment and decree passed in Appeal SuitNo. 38 of 2005 by the First Appellate Court i.e. Court of the SubordinateJudge, Devakottai, affirming the dismissal of the aforesaid suit by theDistrict Munsiff Court, Devakottai has been sustained. H

2. For the sake of convenience the parties herein shall be referred to in terms of their rank and status before the Trial Court.

3. The case of the Plaintiff in a nutshell is stated as under :

(i) Periyaiya Servai and Muthu Servai, were the sons ofMarimuthu Servai. Periyaiya Servai had three sons, beingthe first and second defendants and Marimuthu, who is nolonger alive and whose wife Poomayil has also died. Theplaintiff, first and second defendants and late Marimuthuhave one-fourth share each in the joint family properties.That Periyaiya Servai through his first wife, VeeramakaliAmmal (since deceased) had four daughters and a son,being the first defendant, namely, P.R. Ramasamy. Throughhis second wife, Kaliammal, Periyaiya Servai had two sons,being second defendant, namely, P.R. Kasilingam andMarimuthu. Second defendant’s son, K. Arumuga Velaiyais the plaintiff.

(ii) According to the plaintiff, Periyaiya Servai had executed aregistered will dated 26th January, 1994, in favour of theplaintiff in relation to his share of the properties of the jointfamily. Thus, the joint family properties had to be dividedinto four shares of which the plaintiff was entitled to oneshare, bequeathed in his favour by his grandfather, PeriyaiyaServai under the will. Further, Poomayil, on the death ofher husband Marimuthu had bequeathed his share in theproperty to the first defendant. Hence the first defendanthas become entitled to half share in the joint family propertyand the remaining half has to be equally divided betweenthe second defendant and the plaintiff. That the firstdefendant sent a legal notice objecting to plaintiff’s sharein the suit schedule properties, which are joint familyproperties. Therefore, the plaintiff has been constrained tofile a suit for partition and separate possession.

(iii) Plaintiff has averred that he has a right to one-fourth shareof Periyaiya Servai under the will dated 26th January, 1994,which came into operation on 25th March, 2003, on thedemise of Periyaiya Servai. With the aforesaid avermentsthe plaintiff has sought partition and separate possession ofhis one-fourth share in the suit schedule properties.

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A4. In response to the plaint, first defendant filed his writtenstatement which is encapsulated as under:-

(i) First defendant has admitted that the suit schedule propertieswere joint family properties but they had since been divided.The fact that Periyaiya Servai had executed a will dated26th January, 1994 (the written statement filed by the firstdefendant before the Trial Court mentions the date of thewill as 24th January, 1994) in a good state of mind andhealth has been denied. It is averred that late PeriyaiyaServai had a share in the suit properties but the fact thatthey were bequeathed to the plaintiff by a will, is false. It isaverred that Periyaiya Servai and his brother Muthu Servaiwere living as a joint family and Periyaiya Servai was theKarta of the family. That from the income of the undividedancestral properties, several properties were purchased inthe name of Periyaiya Servai as he was the Karta of thefamily. There was a partition between the brothers under aregistered partition deed. The coparcerners then becamedivided. That in 1964 Periyaiya Servai in turn partitionedhis share of the joint family properties in three parts, i.e.between the first and second defendants and late Marimuthuand they have been enjoying the properties since then. Inthat partition, no share was allotted to Periyaiya Servai. Anagreement for maintenance of Periyaiya Servai during hislife was also made. Marimuthu died suddenly and his sharein the properties was being enjoyed by his wife Poomayil.(ii)Periyaiya Servai was 93 years old in 1991 and was not in aposition to take decisions on his own due to his old age. Hewas acting according to the will of the second defendantand Kaliammal who was Periyaiya Servai’s second wife.The second defendant, taking advantage of the age and illhealth of his father tried to acquire properties of latePoomayil. O.S. No. 347 of 1991 was filed in the name ofPeriyaiya Servai, on the file of the District Munsiff Court,Devakottai, on false and frivolous grounds. In that suit hehad shown joint family properties as independent propertiesof late Periyaiya Servai and stated that the said propertieswere purchased out of the personal income of PeriyaiyaServai. In that suit, the possession and enjoyment of the B

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joint Hindu family ancestral properties by late PeriyaiyaServai and his brother, as also the partition between themwas suppressed. It was further suppressed in the said suitthat in the year 1964 a partition took place before thepanchayatdars and the partitioned properties were enjoyedby late Periyaiya Servai, the first and second defendantsand Marimuthu. In the aforementioned suit, the widow ofMarimuthu, Poomayil also contested but the District MunsiffCourt, without taking into consideration the said partitionheld that the properties were undivided ancestral joint familyproperties. Aggrieved by the same the second defendantpreferred an appeal in A.S. No. 37 of 1993. Late Poomayilhad also filed a cross appeal in A.S. No. 37 of 1993. Thesaid suit was remanded to the lower court in the year 1995.

(iii) Against the order of remand a second appeal was filedbefore the High Court of Madras which remanded thematter to the Sub-court, Devakottai, by restoring A.S. No.37 of 1993. The said appeal was disposed on 23rd March,1999 by giving a finding that the suit properties wereancestral properties which were partitioned between thefirst and second defendants herein and late Marimuthu andthey were enjoying the same separately. That after the deathof Marimuthu, Poomayil was in possession of the properties.The said judgment has attained finality.

(iv) It was also contended that since the suit properties hadbeen partitioned equally between the first and seconddefendants and late Marimuthu in 1964, they also had theright of prescription against each other and were in adversepossession. That Poomayil had died bequeathing herhusband’s properties to the first defendant under a will andhe was enjoying the properties after her death.

(v) That on 26th December, 1988 Periyaiya Servai wrote twoInam settlement deeds in respect of properties in Sr. No.181/1 and 181/3 in Sathyamangalam Village. That O.S. No.376 of 1991 was filed by the plaintiff herein against thesettlement deed, on the file of the District Munsiff Court,Devakottai. The said suit was dismissed and the judgmentand decree in the said suit was confirmed in A.S. No. 38 of1994.

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700SUPREME COURT REPORTS

A(vi)That since the plaintiff herein had not benefited under thesaid suit, he prepared the disputed will with the help of thesecond defendant as if it was the will of Periyaiya Servai.That during the period when the will is said to have beenexecuted, Periyaiya Servai was bed ridden and was notsane and was a prisoner. That Periyaiya Servai wasBdisqualified by virtue of the doctrine of ouster, from makingthe will in respect of ancestral properties, particularly afterthe judgment in O.S. No. 347/1991. That the suit had beenfiled vexatiously when the first defendant raised objectionfor the transfer of the Patta on the basis of a concoctedCwill.

(vii) As late Periyaiya Servai was not sane and healthy and hewas treated as a prisoner by the family of the plaintiff andthe second defendant a habeas corpus petition in HCP No.457 of 2003 was filed by the first defendant before theDMadras High Court. Before the petition was heard, PeriyaiyaServai died and the same was dismissed as not pressed bythe first defendant.

(viii) That the plaint in the instant suit was filed with a view toextort monies from the first defendant. The first defendantEprayed before the Trial Court that the suit for partition andseparate possession filed by the plaintiff be dismissed.

5. The District Munsiff Court, Devakottai by its judgment anddecree dated 7th April, 2005 dismissed the suit being O.S. No. 101 of2004. The salient findings of the Trial Court are as under:

F(i)The Trial Court noted that the defendant had filed O.P. No.7 of 1992 on the file of the District Munsiff Court,Devakottai praying for a declaration that the partition deedstated to be executed in the year 1964 between PeriyaiyaServai, the defendants and Marimuthu was invalid. The saidGsuit was decreed as prayed for, with a declaration to theeffect that the partition deed stated to be executed in theyear 1964 was an unregistered document and therefore,invalid.

(ii) The Trial Court also noted that in O.S. No. 347 of 1991filed by Periyaiya Servai, the District Munsiff Court,H

Devakottai decreed that out of the properties belonging toPeriyaiya Servai, his three sons, being the defendants thereinand late Marimuthu, would each be entitled to one-thirdshare. In an appeal from the judgment and decree in O.S.No. 347 of 1991, the first appellate court in A.S. No. 37 of1993 held that a valid partition had been carried out in theyear 1964 whereby it was decided that no share was to beretained by Periyaiya Servai and each of his sons wasentitled to one-third share in the suit properties.

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Given the contradictory decrees passed in O.P. No. 7of 1992 and in A.S. No. 37 of 1993, the Trial Court heldthat the latter decree would alone be enforceable.

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(iii) That the partition deed executed in the year 1964 was validin the eye of law and such validity was confirmed by theSub-Court, Devakottai in A.S. No. 37 of 1993. Sincequestions surrounding the validity of the partition deed wereDfinally settled, the suit was barred by the principle of resjudicata.(iv)According to the decision in A.S. No. 37 of 1993, PeriyaiyaServai had not been allotted any share in the property andthe same was divided in three equal parts in favour of theE

(iv) According to the decision in A.S. No. 37 of 1993, PeriyaiyaServai had not been allotted any share in the property andthe same was divided in three equal parts in favour of thetwo defendants and Marimuthu. That Periyaiya Servai,following the partition in the year 1964 had no right overthe said property and consequently had no right to executea will in respect of the suit properties, in favour of thePlaintiff.

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(v) That the plaintiff is not entitled to one-fourth share in thesuit properties as prayed by him. That the defendants wereentitled to enjoy their share of the suit properties withoutany restraint by virtue of the partition effected in 1964.

6. Being aggrieved, the plaintiff preferred A.S. No. 38 of 2005before the first appellate court. By Judgment dated 17th February, 2006,the appeal and cross appeal were dismissed and the judgment of theTrial Court referred to above was affirmed. The relevant findings of thefirst appellate court are encapsulated as under:

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i)The first appellate court considered the evidence of thefirst defendant as DW-1. In his cross-examination DW-1

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Ahad stated that a partition had been effected in the year1964, wherein the suit properties were divided among thethree sons of Periyaiya Servai i.e., the first and seconddefendants and Marimuthu. That the patta was not obtainedindividually by the sons of Periyaiya Servai following theexecution of the partition deed, however they had beenBpaying kist in connection with their respective properties.In the circumstance, the first appellate court held that thefact that the defendants had not obtained pattas individuallyfor their respective shares in the suit properties, could notresult in a conclusion that Periyaiya Servai had notCpartitioned the suit properties in favour of his sons.

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ii)That the kist receipts paid by the first defendant from theyear 1964, in relation to his share of the suit properties ledto the conclusion that the first defendant was enjoying theproperties allotted to him by way of the partition effected inDthe year 1964.

iii)Since partition was effected between Periyaiya Servai andhis sons in the year 1964, whereby the suit scheduleproperties were divided among the first and seconddefendants and late Marimuthu, and no property wasEapportioned in favour of Periyaiya Servai, he had no rightto execute a will subsequently, in relation to the suitproperties. Therefore the will dated 26th January, 1994 isnot a valid document.

iv)That the plaintiff could not claim title over one-fourth shareFof the suit properties on the basis of the will dated 26thJanuary, 1994 and therefore the Trial Court rightly dismissedthe suit filed by the plaintiff.

7. Being aggrieved, the plaintiff preferred second appeal No. 92of 2007 before the Madurai bench of the Madras High Court. ByGjudgment dated 6th August, 2007, the second appeal was dismissed byholding that the following substantial questions of law sought to be raisedby the Plaintiff could not be considered:

i)Whether the Courts below are justified in holding that thesuit is barred in view of the decision in Appeal Suit No. 37of 1993 dated 23.03.1999 in as much as there was a specific H

direction by the High Court, Madras in the order of remandto the subordinate judge to consider only whether theproperties are joint family properties or self acquisitions ofPeriyaiah Servai?

ii)Whether the courts below are justified in holding that thesuit is barred in view of the decision in Appeal Suit No. 37of 1993 on the file of Sub-Court, Devakottai withoutconsidering whether the principles laid down in section 11of the Code of Civil procedure are applicable?

iii)Whether the courts below are justified in not consideringthe decision in Original Petition No. 7 of 1972 on the file ofthe Sub-Court, Devakottai where under original of exhibitB-10 was held to be invalid and unenforceable?

iv)Whether the courts below are justified in not consideringthe admissions of DW-1 that Periyaiah Servai was entitledto a share in the joint family properties?

v)Whether the findings of courts below which are perverseand not supported by any materials and against availablematerials on record can be sustained?

The following findings were recorded by the High Court in theimpugned judgment:

(i) That it had already been held in Appeal Suit No. 37 of 1993that all the joint family properties had been divided into threeshares in favour of the sons of Periyaiya Servai. Againstthe said decision, no appeal had been preferred and hencethe finding regarding the partition had attained finality.Therefore, the instant suit was barred by the principle ofres judicata.

(ii) The second appeal was dismissed at the stage of admissionon the ground that the substantial questions of law raisedby the plaintiff were not legally tenable.

The unsuccessful plaintiff has approached this Court challengingthe three judgments referred to above.

8. We have heard Sri. V. Prabhakar, learned advocate for theappellant and Sri. K.K. Mani, learned advocate for respondents andperused the material on record.

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A9. Learned counsel for the appellant-plaintiff at the outsetcontended that the High Court as well as the courts below were notright in dismissing the suit filed by the appellant-plaintiff by holding thatthere was a prior partition between the parties in the year 1964 andhence the instant suit for partition and separate possession was notmaintainable. Elaborating the said contention it was submitted that theBso called partition of the suit schedule properties in the year 1964 was asper an award. The said award was not registered as per section 17 (1)(e) of the Registration Act, 1908 (hereinafter referred to as “the Act”for the sake of brevity). Section 49 of the Act was also pressed intoservice to contend that in the absence of registration of the arbitrationCaward effecting the partition between members of the family, the awarddoes not have any validity in the eye of law and hence it is not binding onthe parties. Since the said award had no effect in law, the family continuedto remain joint and the suit schedule properties were joint ancestralproperties. Hence, the suit for partition filed by the appellant wasmaintainable.D

10. In this context it was brought to our notice that O.S. No. 347of 1991 was filed by Periyaiya Servai, the grandfather of the plaintiffseeking declaration of title and consequential relief and the said suit wasdismissed against which A.S. No. 37 of 93 was filed. In the said appealthere was an order of remand to the Trial Court. The remand order wasEchallenged before the High Court. The High Court remanded the matterto the first appellate court to decide the appeal and to give a finding onlyon the nature of the properties. Reliance was placed on the finding givenby the first appellate court on remand from the High Court to the effectthat the suit schedule properties are joint ancestral properties. However,Fthe first appellate court even in the absence of any mandate of the HighCourt being given in the remand order went ahead to hold that there wasa partition between the members of the family in the year 1964 andhence the suit for partition was not maintainable. Learned counsel forthe appellant contended that such a finding could not have been given bythe first appellate court transgressing the contours of the order of remandGmade by the High Court which was to determine only the nature of thesuit schedule properties and not whether there was a partition of thesame between the members of the family. That the decision of the firstappellate court in A.S. No. 37 of 1993 was erroneous in so far as ittravelled beyond the scope of the remand made to it by the High CourtHand hence the said finding is not binding on the parties.

11. It was contended that the High Court in passing the impugnedjudgment, could not have dismissed the second appeal on the basis of anerroneous finding given by the first appellate Court as the said findingwas also not binding on the High Court. It was contended that the principleof res judicata does not apply in the instant case. Hence, the judgmentsof the High Court and the Courts below may be set aside and the suitmay be decreed.

12. Learned counsel for the appellant relied upon the followingjudgments in support of his submissions:

a)Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3SCR 639.

b)Satish Kumar and Ors. v. Surinder Kumar and Ors.,[1969] 2 SCR 244.

c)Lachhman Dass v. Ram Lal, [1989] 3 SCC 99.

d)Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947PC 1.

13. Per contra, learned counsel for the respondents supported theimpugned judgment of the High Court to contend that registration of thearbitral award making a partition between the parties was not compulsory.It was urged that partition of joint family properties is not a transfer intervivos. A partition only crystallises the share of the coparceners in thejoint family or ancestral properties. That so long as the parties are notallotted shares pertaining to specific assets under a partition deed such adocument does not create any right, title or interest in any specific propertyas such. Therefore, registration of the arbitral award in the instant caseas such is not a mandatory requirement.

14. Alternatively, it was contended that the finding of the firstappellate court in A.S. No. 37 of 1993, regarding the partition and divisionof the ancestral joint family properties in the year 1964 has attainedfinality. The said finding is binding on the parties. Hence a fresh suitseeking partition and separate possession of the properties was not at allmaintainable. This is because the aforesaid finding shall be presumed tobe accepted by the parties as there has been no challenge to the sameand hence principle of res judicata would apply.

15. It was further contended that even if it is assumed for thesake of argument that, on remand, the first appellate court had passed A

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Aan erroneous judgment by giving a finding on a point beyond the scopeof remand, i.e., on the aspect of the arbitral award having partitioned thesuit schedule properties, such a finding is binding on the parties as it hasnot been interfered with by the High Court. That nothing prevented theappellant from assailing the said finding before the High Court by filing asecond appeal. Instead the appellant filed a fresh suit for partition whichBis an instance of abuse of process of law as it is hit by the principle of resjudicata.

16. In the above backdrop it was contended that the High Courtwas right in dismissing the second appeal as well as the suit filed by theappellant plaintiff and there is no merit in this appeal. Hence the sameCmay be dismissed. Learned counsel for respondents relied upon the following threedecisions to buttress his submissions:

a)Kale and Ors. v. Deputy Director of Consolidation,D[1976] 3 SCC 119.

b)Bhoop Singh v. Ram Singh Major and Ors., [1995] 5SCC 709.

c)Ravinder Kaur Grewal and Ors. v. Manjit Kaur andOrs., [2020] 9 SCC 706.E

d)Ripudaman Singh v. Tikka Maheshwar Chand, [2021]7 SCC 446.

17. Having heard learned counsel for respective parties the onlypoint which arises for our consideration is, whether, the suit filed by theplaintiff is barred in view of the judgment and decree passed in A.S. No.F37 of 1993 dated 23rd March, 1999, wherein it was held that a partitionhad been affected in relation to the joint family properties between thefirst and second defendants and late Marimuthu in the year 1964.

18. The following undisputed facts may be noted:- G(a)The relationship between the parties is not in dispute.Periyaiya Servai through his first wife had begotten the firstdefendant, P.R. Ramaswamy and through his second wifehad two sons, namely, P.R. Kasilingam - second defendantand late Marimuthu. The appellant-plaintiff is the son ofP.R. Kasilingam.

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(b) Appellant has also claimed that his grandfather PeriyaiyaServai had executed a will in his favour and therefore hehad one-fourth share in the suit property.

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(c) It is also not in dispute that O.S. No. 347 of 1991 was filedon the file of the District Munsiff Court, Devakottai byPeriyaiya Servai for declaration of title and permanentBinjunction, wherein all the suit properties had been shownas joint family properties. Against the dismissal of the saidsuit a preliminary decree was passed granting one-fourthshare to the plaintiff therein in A.S. No. 37 of 1993 preferredagainst the dismissal of the suit.

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(d) In A.S. No. 37 of 1993 it was held that the suit propertieswere joint family properties and in the year 1964 there wasa partition between the members of the joint family. Thesaid judgment was not assailed by any of the parties.

(e) However, the appellant herein instituted a fresh suit beingO.S. No. 101 of 2004 on the file of the District MunsiffCourt, Devakottai which was dismissed, against which A.S.No. 38/2005 was filed before the Subordinate Judge,Devakottai wherein it was observed that the finding givenin A.S. No. 37 of 1993 to the effect that there was a partitionin the family in the year 1964, had attained finality.

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(f) Aggrieved by the dismissal of the appeal, second appealbeing S.A. No. 92 of 2007 was filed before the MaduraiBench of the Madras High Court, which has also dismissedthe same by the impugned judgment.

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19. The main plank of argument of the appellant is that the suitfiled by the plaintiff-appellant herein could not have been dismissed onthe principle of res judicata by holding that in A.S. No. 37 of 1993 therewas already a clear finding to the effect that there was a partition of thesuit properties between the members of the joint family and hence afresh suit for partition and separate possession vis-a-vis the sameproperties could not have been filed by the plaintiff as it is not maintainable.In this regard the contention of the appellant-plaintiff is that the aforesaidfinding was contrary to the mandate of remand and hence was not bindingon the parties. Contrarily, respondents have contended that the findingthat the suit properties were joint family properties which had been G

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Apartitioned by the parties in the year 1964, not having been challenged atall by the plaintiff, had attained finality and hence the plaintiff was estoppedfrom filing a fresh suit claiming partition and separate possession.

20. In the aforesaid context another contention raised by thelearned counsel for the appellant was that the so-called partition whichBtook place in the year 1964 was by virtue of an award passed by thepanchayatdars (arbitrators) and the same, not having been registered,was not made a rule of the court and hence had no validity in the eye oflaw. The counter to the aforesaid argument by learned counsel for therespondent is that the said award did not require registration at all.

C21. We shall at the outset consider the following judgments reliedupon by the learned counsel for the appellant:

a)In Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3SCR 639, one of the questions raised was whether the validityof a partition deed could be challenged as being inadmissibleDin evidence on the ground that it had not been registered asmandated under Section 17 (1) (b) of the Act. In that case itwas held that under the recitals of exhibit D-4 consideredtherein, there was allotment of specific properties to individualcoparceners and the document therefore fell within themischief of Section 17 (1) (b) of the Act as it requiredEregistration. Hence, the said document was not admissible inevidence to prove the title of the coparceners to any particularproperty or to prove that any particular property had ceasedto be joint property. However, document exhibit D-4considered therein was held to be admissible to prove anintention on the part of the coparceners to become divided inFstatus; in other words, to prove that the parties ceased to bejoint from the date of the instrument vide Nanni Bai v GitaBai, [1959] 1 SCR 479. The said judgment is not applicableto the facts of this case.

b)In Satish Kumar and Ors. v. Surinder Kumar and Ors.,G[1969] 2 SCR 244, a similar question on registration of anaward for partition of joint family property being compulsoryunder Section 17 (1) (b) read with section 49 of the Act wasemphasised. In that case an award for partition was madeunder the Arbitration Act, 1940 and the question was whetherHsuch an award on a private reference required registration if the award effected partition of immovable property exceedingthe value of Rs. 100. The majority (2:1) held that an awardmade by an arbitrator which affected right, title or interest ofthe value of more than Rs. 100 in immovable property wouldrequire registration. However, it was held that the filing of anunregistered award under Section 49 of the Act is notprohibited; what is prohibited is that it cannot be taken intoevidence so as to affect right, title or interest in immovableproperty as per Section 17 of the Act. For this propositionreliance was place on Champalal vs. Mst. Samarth Bai,[1960] 2 SCR 810.

Also reliance was placed on Kashinathsa YamosaKabadi v. Narsinga Bhaskarsa Kabadi, [1961] 3 SCR792 wherein this court had observed as under:

“The records made by the Panchas about the division ofthe properties, it is true, were not stamped nor werethey registered. It is however clear that if the recordmade by the Panchas in so far as it deals with immovableproperties is regarded as a non-testamentary instrumentpurporting or operating to create, declare, assign, limitor extinguish any right, title or interest in immovableproperty, it was compulsorily registrable under Section17 of the Registration Act, and would not in the absenceof registration be admissible in evidence.”

The minority opinion voiced through K.S. Hegde J. inthe aforesaid case was that an arbitrator’s award does createrights in property but those rights cannot be enforced withoutfurther steps. For the purpose of Section 17(1) (b) of the Act,all that is to be seen is whether the award in question purportsor operates to create or declare, assign, limit or extinguish,whether in present or future any right, title or interest, whethervested or contingent of the value of one hundred rupees andupwards to or in immovable property. If it does, it iscompulsorily registerable.

c)In Lachhman Dass v. Ram Lal, [1989] 3 SCC 99, theissue was that the arbitrator’s award had not been properlystamped and as such could not be made the rule of the Court.It was also contended that the award was unregistered and A

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as such it could not be made the rule of the Court as it affectedimmovable property of more than Rs. 100. The said contentionwas accepted by the Trial Court but in second appeal theHigh Court observed that the award was stamped properlyand it did not require any registration as the award did notcreate any right as such in the immovable property; it onlyadmitted the already existing rights between the parties andhence registration was not required. Hence the questionconsidered was whether the Court could have looked intothe award for the purpose of pronouncing judgment upon theaward. On a construction of the award questioned thereinthe decision of the High Court was reversed. In doing so, thisCourt took into consideration section 17 (1) (e) of the Act aswell as sections 23, 25 and 49 of the Act. Further, reliancewas placed on a decision of the Division Bench of the MadrasHigh Court in Ramaswamy Ayyar and Anr. v. TirpathiNaik, ILR 27 Mad 43, wherein it was observed that it isnecessary to read a document in order to ascertain, not whatthe document intends to convey really but what it purports toconvey. In other words, it is necessary to examine not somuch what it intends to do, but what it purports to do. It wasfurther observed in paragraph 14 as under:

“14. The real purpose of registration is to secure thatevery person dealing with the property, where suchdocument requires registration may rely with confidenceupon statements contained in the register as a full andcomplete account of all transactions by which title maybe affected. Section 17 of the said Act being a disablingsection, must be construed strictly. Therefore, unless adocument is clearly brought within the provisions of thesection, its non-registration would be no bar to its beingadmitted in evidence.”

Reliance was also placed on Ratan Lal Sharma v.Purushottam Harit, [1974] 3 SCR 109 to hold that thearbitration award in the said case did not just seek to assign ashare of the respondent to the appellant therein, but made anexclusive allotment of the partnership assets including thefactory and liabilities to the appellant therein. Therefore, the award in express words purported to create rights inimmovable property worth a sum above Rs. 100/- in favourof the appellant therein. It was accordingly held that it wouldmandatorily require registration under section 17 of the Act.

22. We shall now consider the citations relied upon by therespondents:

a)Kale and Ors. v. Deputy Director of consolidation, [1976]3 SCC 119, is a case which had a checkered history in whicha discussion on the effect and value of family arrangementsentered into between the parties with a view to resolvedisputes once and for all, came up for consideration. It wasobserved that in the case of a family settlement, usually therewould be an agreement which is implied from a long courseof dealing, but such an agreement would be embodied oreffectuated in a deed to which the term “family arrangement”is applied. Such a family arrangement is not applicable todealings between strangers but is in the context of maintainingthe interest and peace of the members of the family. Inparagraph 10 of the said judgment, this Court has adumbratedon the essentials of a family settlement which could beusefully extracted as under:

“10. In other words to put the binding effect and theessentials of a family settlement in a concretized form, thematter may be reduced into the form of the followingpropositions:

(1) The family settlement must be a bona fide one so as toresolve family disputes and rival claims by a fair andequitable division or allotment of properties between thevarious members of the family;

(2) The said settlement must be voluntary and should notbe induced by fraud, coercion or undue influence;

(3) The family arrangements may be even oral in whichcase no registration is necessary;

(4) It is well settled that registration would be necessaryonly if the terms of the family arrangement are reducedinto writing. Here also, a distinction should be made between A

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a document containing the terms and recitals of a familyarrangement made under the document and a merememorandum prepared after the family arrangement hadalready been made either for the purpose of the record orfor information of the Court for making necessary mutation.In such a case the memorandum itself does not create orextinguish any rights in immoveable properties and thereforedoes not fall within the mischief of Section 17(2) (sic)(Section 17(1)(b)?) of the Registration Act and is, therefore,not compulsorily registrable;

(5) The members who may be parties to the familyarrangement must have some antecedent title, claim orinterest even a possible claim in the property which isacknowledged by the parties to the settlement. Even if oneof the parties to the settlement has no title but under thearrangement the other party relinquishes all its claims ortitles in favour of such a person and acknowledges him tobe the sole owner, then the antecedent title must be assumedand the family arrangement will be upheld, and the Courtswill find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, whichmay not involve legal claims are settled by a bona fide familyarrangement which is fair and equitable the familyarrangement is final and binding on the parties to thesettlement.”

After reviewing several judgments of this Court, thePrivy Council and other High Courts, this Court in paragraph20 indicated the following propositions:

“We would, therefore return the reference with a statementof the following general propositions:

(1) A family arrangement can be made orally.

(2) If made orally, there being no document, no question ofregistration arises.

(3) If though it could have been made orally, it was in factreduced to the form of a “document” registration (whenthe value is Rs. 100 and upwards) is necessary.

(4) Whether the terms have been “reduced to the form of adocument” is a question of fact in each case to bedetermined upon a consideration of the nature andphraseology of the writing and the circumstances in whichand the purpose with which it was written.

(5) If the terms were not “reduced to the form of adocument”, registration was not necessary (even thoughthe value is Rs. 100 or upwards); and, while the writingcannot be used as a piece of evidence for what it may beworth, e.g. as corroborative of other evidence or as anadmission of the transaction or as showing or explainingconduct.

(6) If the terms were “reduced to the form of a document”and, though the value was Rs. 100 or upwards, it was notregistered, the absence of registration makes the documentinadmissible in evidence and is fatal to proof of thearrangement embodied in the document.”

Ultimately, this Court held that the family arrangementin the nature of a compromise which was considered in thatcase did not require registration. It was further held that sincethe existence of the family arrangement was admitted in thatcase, the same was binding on the principle of estoppel. Also,even if the family arrangement could not be registered it couldbe used for collateral purpose, i.e. to show the nature andcharacter of possession of the parties in pursuance of thefamily settlement and also for the purpose of applying therule of estoppel which flowed from the conduct of the parties,who, having taken benefit under the settlement for sevenyears, later tried to resile from the settlement.

b)In Bhoop Singh v. Ram Singh Major and Ors., [1995] 5SCC 709, this Court stated the legal position in the contextof registration of documents under section 17 (2) (vi) of theAct in the following words, so as to distinguish the same fromsection 17 (2) (v):

“18. The legal position qua Clause (vi) can, on the basis ofthe aforesaid discussion, be summarised as below:

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(1) Compromise decree if bona fide, in the sense that thecompromise is not a device to obviate payment of stampduty and frustrate the law relating to registration, would notrequire registration. In a converse situation, it would requireregistration.

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(2) If the compromise decree were to create for the firsttime right, title or interest in immovable property of the valueof Rs. 100 or upwards in favour of any party to the suit thedecree or order would require registration.

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(3) If the decree were not to attract any of the clauses ofSub- section (1) of Section 17, as was the position in theaforesaid Privy Council and this Court’s cases, it is apparentthat the decree would not require registration.

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(4) If the decree were not to embody the terms ofcompromise, as was the position in Lahore case, benefitfrom the terms of compromise cannot be derived, even if asuit were to be disposed of because of the compromise inquestion.

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(5) If the property dealt with by the decree be not the“subject- matter of the suit or proceeding”, Clause (vi) ofSub-section (2) would not operate, because of theamendment of this Clause by Act 21 of 1929, which has itsorigin in the aforesaid decision of the Privy Council,according to which the original Clause would have beenattracted, even if it were to encompass property notlitigated.”

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c)In Ravinder Kaur Grewal and Ors. v. Manjit Kaur andOrs., [2020] 9 SCC 706 considering both the aforesaidjudgments, this Court opined that when a family settlementarrived at between the parties has been acted upon then it isnot open to resile from the same and the parties are estoppedGfrom contending to the contrary.

d)The facts in Ripudaman Singh v. Tikka MaheshwarChand, [2021] 7 SCC 446 were that, the parties beingbrothers, had entered into a compromise in respect of a landdispute. Plaintiff, therein, on the basis of the compromiseHdecree applied for mutation of land in his favour, which was allowed. In appeal there was a direction to Naib Tehsildar todecide the mutation afresh. Subsequently, the DivisionalCommissioner dismissed the appeal filed against the saidorder. A suit was filed which was dismissed but the appealpreferred by the appellant was allowed. However, the HighCourt in the second appeal, set aside the judgment of the firstappellate court and dismissed the suit on the ground that theland, even though was a subject matter of compromise, wasnot the subject matter of the suit and therefore, the compromisedecree required registration under the provisions of the Act.This Court while allowing the appeal and setting aside thedecree of the High Court held that when a pre-existing rightin the property is being recognised by way of a settlement ina Court proceeding and no new right is created for the firsttime when the parties entered into a compromise in the civilcourt, there is no requirement of compulsory registration. Inother words, a compromise recognising a pre-existing right ina property amongst heirs does not require registration underthe Act. In this case the distinction between section 17 (2)(v) and (vi) was brought out by referring to the aforementionedjudgments.

23. In order to answer the aforesaid twin questions, at the outsetwe have to consider the award dated 13th June, 1964 passed by thepanchayatdars which has been produced as Annexure P-10 by learnedcounsel for the appellant. The award is in the form of a resolution on thestrength of the statement given by Periyaiya Servai and the consentstatement given by P.R. Ramaswamy and P.R. Kasilingam, the two majorsons of Periyaiya Servai. There are details as to how the properties hadto be dealt with. The parties had also stated that they had read the aboveresolution and had agreed wholeheartedly to obey the provisions thereof.For a better appreciation of the nature of the award passed by thepanchayatdars, it would be useful to extract Annexure P-10 as under:

“RESOLUTION PASSED BY THE PANCHAYATDARSON 20[TH] DAY OF THE MONTH OF PANGUNI OF TAMILSOBAKRITHU YEAR IN REGARD TO PARTITIONBETWEEN THE THREE SONS OF M. PERIYAYYASERVAI VIZ. (1) RAMASAMY, (2) KASILINGAM AND(3) MARIMUTHAN.

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DETAILS

The said M. Periyayya Servai had two wives

1) Veerayakli – First Wife

2) Kaliyamma – Second Wife

The Son born through first wife is Ramasamy. The Sons bornthrough second wife are Kasilingam and Marimuthan.

We have passed the following Resolutions on the strength of thestatement given by the said M. Periyayya Servai in front of usand the consent statement given by Ramasamy and Kasilingam,after perusal of the above statement.

DETAILS OF RESOLUTIONS

1. The nanjai, punjai and accessories viz Thitthuthidal, cattle,chickens, vessels and all other household articles are to bedivided into three equal shares.

2. As the Panchayatdars unanimously decide that the threeacres of land out of the total common Nanjai lands are tobe left to the care of Ramasamy, the eldest Son, the saidthree acres of Nanjai Lands are to be accordingly givenaway to Ramasamy.

3. We, the Panchayatdars RESOLVE to cancel the expensesincurred in connection with the actions revolving roundpartition as per the amount contained in the statements givenby both the parties, besides cancelling the difference inexpenses of the marriages of Ramasamy and Kasilingam,and the marriage of one Ms. Patharammal is to beperformed from out of the amounts from the share of bothKasilingam and Marimuthan, on the statement made byKaslingam that a Minor Chain weighing about 3 his marriageand the same could not be traced out, in spite of search,Kasilingam shall give the expenses amounting to Rs.300/-in common.

4. It was RESOLVED that Marimuthan shall conduct hismarriage on his own from his share and Marimuthan shallhave no responsibility towards either amounts receivable,payable or loans concerning the common family.

5. It was RESOLVED that the PANCHAYATDARS havingdecided that on the approval of Kasilingam, BangaloreM. Sethuraman, for having taken limestone valued atRs.20,000/- in regard to kiln for bricks, since Kasilingampermitted the above person to take Rs.340/- (Rupees threehundred forty only) on his own volition without the approvalof his father, it was RESOLVED that Kasilingam shallbear the said sum of Rs.340/- from out of his pocket.

6. The school at Bangalore shall be valued for sale, takinginto account all the goods/things and accessories availablein the said school and the said school shall be taken overeither by Ramasamy or Kasilingam depending upon the onecoming out successful in the paper token to be tossed overand both of them agree to the above proposal. The value ofthe said school has been unanimously arrived at Rs.3,000/-(Rupees three thousand only) by the Panchatdars. Theperson who takes up the responsibility of the said schoolshall pay the above sum of Rs.3000/- to their father M.Periyayya with liberty to be spent by him as he wishes, forhis personal use. It is RESOLVED by the Panchayatdars,the three sons shall not have any right over the aforesaidsum of Rs.3,000/-.

7. It is further RESOLVED that the Savukkai house alongwith the fenced compound shall be given to Periyayya andto leave the two properties viz one comprised in S.No.181/1 measuring 1.40 cent and another house comprised in givinghim the right to deal with the properties as he may desire. Itis also RESOLVED to give him a cart and two bullocks forhis use besides a cow for meeting his requirement for milk.

8. In his statement Periyayya had stated that a sum ofRs.1,000/- or land equal to its value shall be given to hissister Lakshmi. We, the Panchayatdars, have todayRESOLVED that a sum of Rs.1,000/- or land equal to itsvalue ought to be given to the said Lakshmi.

9. As is found in the statement that in order to give a house toKaruvarividan of Sathamangalam, it is RESOLVED thatthe lower layer of the first farm shall be given to the aboveperson. There is no time for performing charitable activities A

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Afor the three partners. It has been decided that the threeshares in the same can hereafter be done together underthe supervision of Ramasamy.

10. As found in the statement of Sri Periyayya Servai, whereinit has been written that considering the value of all theBKalluppatti properties at Rs.800/- shall be sold to his daughterSegappi, it has been decided that the said properties shallbe sold for the above said value itself and the said decisionhas been endorsed by us, the Panchayatdars.

11. The house may be divided into two by using coconut mataiCand shall be taken by Kasilingam and Marimuthan. For theshare going to Marimuthan the vacant site also is to beadded. The Nattavali house shall be held and used incommon. It has been decided as above.12.It has been RESOLVED as regards the common familyhonour of Lance, that in line with the age old customs, afterDthe life time of Periyayya Servai, his eldest Son, Ramasamyis considered to be due for the said honour.

13. All the above have been unanimously RESOLVED by us,the Panchayatdars.PANCHAYATDARSE1.S. Appasamy Servai, Unchanai2.Bhootha Thiru Muthaiyyan Servai, Ethappadivayal3.M. Muthiah Servai of Umbiyur Iruppukkudi4.Ana. AnamugappanF5.S.V. Durai Servai, Sathamangalam.We have read the above RESOLUTIONS. We agree with theabove. We shall wholeheartedly obey the above.Sd/- M. Periyayya ServaiGSd/- RamasamySd/- KasilingamResolution written by and I am also one of the Panchayathars.

Sd/-(illegible)”

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On a perusal of the award which is in the form of a resolution, itis clear that there was no right created in any specific item or asset ofthe joint family properties in any person but the parties resolved to takecertain actions in pursuance of a family arrangement. Therefore underAnnexure P-10 (Ex. B-13) there was no right created in favour of anyparty in any specific item of joint family property. The said documentwhich has been styled as an award is, in our view, only a memorandumof understanding/family arrangement to be acted upon in future. Hence,in our considered view, the said document did not create rights in specificproperties 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 undersection 17 (2) (v) of the Act. For a better understanding of the same itwould be useful to refer to section 17 (1) (e) and 17 (2) (v) as under:

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“17. Documents of which registration is compulsory.—(l) Thefollowing documents shall be registered, if the property to whichthey relate is situate in a district in which, and if they have beenexecuted on or after the date on which, Act No. XVI of 1864, orthe Indian Registration Act, 1866, or the Indian Registration Act,1871, or the Indian Registration Act, 1877, or this Act came orcomes into force, namely:—

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(b) other non-testamentary instruments which purport or operateto create, declare, assign, limit or extinguish, whether in presentor in future, any right, title or interest, whether vested or contingent,of the value of one hundred rupees and upwards, to or inimmovable property; F

(v) any document other than the documents specified in sub-Gsection (1A) not itself creating, declaring, assigning, limiting orextinguishing any right, title or interest of the value of one hundredrupees and upwards to or in immovable property, but merelycreating a right to obtain another document which will, whenexecuted, create, declare, assign, limit or extinguish any such right,title or interest.”H

A24. Having regard to the aforesaid provisions of law it can besafely concluded that the said award was a mere arrangement to dividethe properties in future by metes and bounds as distinguished from anactual deed of partition under which there is not only a severance ofstatus but also division of joint family properties by metes and bounds inspecific properties. Hence it was exempted from registration underBSection 17 (2) (v) of the Act. A document of partition which provides foreffectuating a division of properties in future would be exempt fromregistration under section 17 (2) (v). The test in such a case is whetherthe document itself creates an interest in a specific immovable propertyor merely creates a right to obtain another document of title. If aCdocument does not by itself create a right or interest in immovableproperty, but merely creates a right to obtain another document, whichwill, when executed create a right in the person claiming relief, the formerdocument does not require registration and is accordingly admissible inevidence vide Ranjangam Iyer v. Ranjangam Iyer, AIR 1922 PCD266.

25. In the instant case exhibit B-13 award is more in the nature ofa memorandum of understanding, a mere agreement of the steps to betaken in future for the division of the properties. Hence, the said documentdid not require registration under Section 17 (1) (b) of the Act as underthe said document no creation of rights in any specific joint family propertyEwas effected. Hence the second limb of the contention of the appellantis accordingly answered.

26. Thus, in our view the judgment in O.P. No. 7 of 1972 whichwas a petition filed under Section 17 of the Arbitration Act, 1940 prayingto receive the award passed by the arbitrators and to pass a judgmentFthereon, wherein it was held that the award was not registered asmandated under Section 17 (1) (b) of the Act and hence could not bemade a rule of the Court, is wholly incorrect. In our view, the award wasnot a document of title to the property hence it did not require registration.Therefore, the Order dated 22[nd] August, 1975 passed in O.P. No. 7 ofG1972 holding that the award was inadmissible in evidence as it was notregistered and hence a decree could not be passed, is incorrect.

27. In our view, exhibit B-13 did not require registration.

28. The next question that arises for our consideration is whether,the finding of the first appellate court in A.S. No. 37 of 1993 that the suitHproperties 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 wasnot maintainable. In A.S. No.37, on considering the oral and documentaryevidence on record it was opined as under:

“From his evidence it is clear that there is a partition in the year1964 and the list of the apportionment and they have also writtena Muchallikka before the panchayat. It is undoubtfully known thatsince there was a joint possession, the partition was effected tothe plaintiff’s 3 sons in 1964 by plaintiff by accepting that the suitproperties were joint properties, it is not right on the part of theplaintiff to claim that the properties are his individual, self-acquiredproperties and it is also unbelievable.”

This finding is sought to be questioned before us by placing relianceon a judgment of the Apex Court in Asrar Ahmed v. Durgah Committee,Ajmer, AIR 1947 PC 1 to contend that the plea of res judicata doesnot arise in the instant case. We have perused the same. Learned Counselfor the appellant placed heavy reliance on this judgment contend thatwhen a finding has been given by a lower court based on sufficientevidence, if erroneous, is not binding between the parties to the saidproceeding on the principle of res judicata. The said judgment is notapplicable to the present case.

29. Having regard to the fact that in the instant case there hasbeen no challenge to the finding of partition between the parties till dateand the same has attained finality we do not think that the appellant canseek to rely on the judgment in Asrar Ahmed (Supra). Hence, thepartition of the ancestral/joint family properties having found to havetaken place in the 1964 and the same having been acted upon, a freshsuit for partition and separate possession of the suit properties was notat all maintainable. The principle of res judicata squarely applies in thepresent case.

30. In this context, following judgments could be cited with regardto the operation of the principles of res judicata in respect to the previousproceeding and judgment: - a)In Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B.Jeejeebhoy (AIR 1971 SC 2355), it was observed as under:

“10. It is true that in determining the application of the ruleof res judicata the Court is not concerned with thecorrectness or otherwise of the earlier judgment. The matter AB

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Ain issue, if it is one purely of fact, decided in the earlierproceeding by a competent Court must in a subsequentlitigation between the same parties be regarded as finallydecided and cannot be reopened. A mixed question of lawand fact determined in the earlier proceeding between thesame parties may not, for the same reason, be questionedBin a subsequent proceeding between the same parties. But,where the decision is on a question of law i.e. theinterpretation of a statute, it will be res judicata in asubsequent proceeding between the same parties wherethe cause of action is the same, for the expression “theCmatter in issue” in Section 11 of the Code of Civil Proceduremeans the right litigated between the parties i.e. the factson which the right is claimed or denied and the law applicableto the determination of that issue. Where, however, thequestion is one purely of law and it relates to the jurisdictionof the Court or a decision of the Court sanctioning somethingDwhich is illegal, by resort to the rule of res judicata a partyaffected by the decision will not be precluded fromchallenging the validity of that order under the rule of resjudicata, for a rule of procedure cannot supersede the lawof the land.”

Eb)In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR1953 SC 65), the second round of litigation was admittedlyin respect of same property and between the same parties,after the earlier litigation had attained finality even up to thestage of execution. It was held that later on the judgmentFdebtor was precluded from raising the plea of jurisdiction inview of principles of constructive res judicata. In Paragraph23 it was as under :- “”23. There is ample authority for the proposition that evenan erroneous decision on a question of law operates as ‘resjudicata’ between the parties to it. The correctness orotherwise of a judicial decision has no bearing upon thequestion whether or not it operates as ‘res judicata.”

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c)In State of West Bengal v. Hemant Kumar Bhattacharjee(AIR 1966 SC 1061), the main issue related to the SpecialCourt to try a Criminal offence, in as much as an incorrect H

decision cannot be equated with a decision rendered withoutjurisdiction. Even a wrong decision can be superseded onlythrough appeals to higher tribunals or Courts or through review,if provided by law.

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Conclusion

31. We accordingly hold that the High Court was justified inaffirming the judgments of the First Appellate Court as well as the TrialBCourt dismissing the suit filed by the appellant herein. We have no reasonto interfere with the impugned judgment.

The appeal is accordingly dismissed.

Having regard to the relationship between the parties, they shallCbear their own costs.

Ankit Gyan(Assisted by : Shubhanshu Das, LCRA)

Appeal dismissed.

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