GHANSHYAM DAS SHARMA Vs. RADHEY SHYAM SHARMA

JUDGEMENT

(1.) Having heard the learned counsels of both the parties, the court has to give its finding on the following substantial question of law:

(2.) It transpires that the plaintiff and defendant are the real brothers. The property is situated in Kotdwar, Nazibabad road Naya Gaon, ward no.18 admeasuring 13X5.60 meter, which was originally owned by one Shri Kanta Prasad who was the real maternal uncle of both the parties. Shri Kanta Prasad undisputedly executed an unregistered Will dated 01.02.1989 bequeathing the whole property in favour of the plaintiff and defendant and as per the intention of the testator both had to own half-half share in such property. The Will was acted upon after the death of Shri Kanta Prasad on 07.02.1989.

(3.) Original suit no. 11/2006 was instituted by Shri Ghanshyam Das-appellant herein for partition of such property wherein the defendant presented his written statement and in the paragraph-13 he pleaded the mutual written settlement between the parties on 03.12.2004 (paper no. 32 Ga in LCR) whereby north-east part of such property fell in the share of the defendant and south-east part in the share of the plaintiff. After such mutual settlement both began to utilize the same in accordance with their need and changed the nature of the property accordingly including the erection thereon but, the learned Trial Judge decreed the suit on 19.12.2012 directing the partition and preparation of the preliminary decree discarding such mutual settlement on the ground that it was not registered as envisaged under Section 17 (1)(b) of the Registration Act, 1908.