Karnataka HC Declares Son Entitled To 1/3 Of Ancestral Properties, Saying Unregistered Deed Could Not Effect Partition

The plaintiff sued his brothers and another defendant for partition, claiming a one-third share in the suit properties as joint family property.

The first defendant asserted that a 1981 family partition, recorded in an unregistered panchayat palupatti (Ex.D1), had divided the ancestral properties, and that the remaining properties were their father’s self-acquired properties, bequeathed to him by a registered Will dated 24 October 1987 (Ex.D2).

The Trial Court decreed the suit; the First Appellate Court reversed that decision and dismissed it, relying on Ex.D1 and finding the Will proved.

In the second appeal, the High Court considered whether the unregistered document could establish partition and whether the First Appellate Court had properly addressed its admissibility.

Under Sections 17 and 49 of the Registration Act, an unregistered instrument that itself effects a partition of immovable property requiring registration is inadmissible to prove that partition.

The document may, however, be considered for a collateral purpose, including evidence of severance in the status of a joint family.

The Court also applied the principle that a validly proved Will may dispose of the testator’s self-acquired property; it found no illegality or perversity in the First Appellate Court’s finding that Ex.D2 was proved, but cited no specific statutory provision or precedent on that issue.

Ex.D1 was an instrument effecting, rather than merely recording, the alleged division of Items 1, 2 and 4 to 7 of the ‘C’ schedule.

Because it was unregistered, it could not establish that those properties had been partitioned, and the First Appellate Court erred in relying on it for that purpose.

The Court nevertheless treated Ex.D1 as admissible for the collateral purpose of showing severance in family status.

As to the ‘A’ and ‘B’ schedule properties and Item 3 of the ‘C’ schedule, the First Appellate Court had separately found on the evidence that these were the father’s self-acquired properties and that Ex.D2 had been proved; the High Court found no basis to disturb those findings.

It set aside the First Appellate Court’s decree concerning Items 1, 2 and 4 to 7 of the ‘C’ schedule and declared the plaintiff and Defendants 1 and 2 entitled to one-third shares each in those items.

It confirmed dismissal of the suit concerning the ‘A’ and ‘B’ schedule properties and Item 3 of the ‘C’ schedule, which the father had bequeathed to Defendant 1.