Madhya Pradesh High Court
Pramod Kumar Jain vs Mahaveer Prasad Jain on 25 August, 2014
1 W.P. No. 1750/2013
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
SB : JUSTICE SUJOY PAUL
W.P. No. 1750/2013
Pramod Kumar Jain
Vs.
Mahaveer Prasad Jain and others
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Shri N.K. Gupta, Senior Advocate with Shri Sanjay Sharma,
Advocate for the petitioner.
Shri O.P. Shrivastava, Advocate for the respondents No. 3, 4 and 5.
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ORDER
(25/08/2014) This petition filed under Article 227 of the Constitution, challenges the order dated 27.02.2013 passed by Additional District Judge, Karera district Shivpuri in Civil Suit No. 3A/2011.
2. The petitioner/plaintiff filed a suit for declaration and permanent injunction. In the said suit, the plaintiff wanted to exhibit memorandum of partition dated 15.11.2006. The defendants took objection that this memorandum is not registered under the Registration Act, 1908 and, therefore, cannot be taken into evidence. The court below decided the said objection by the impugned order dated 27.02.2013 by holding that the memorandum of partition is not only a list of property but it is a document, which is to be intended in evidence of plaintiff. The document requires registration and stamp duty. Thus, objection of defendants was allowed and direction was given under Section 35 of the Stamp Act to send the memorandum to Stamp Collector, Shivpuri for proper registration and for assessing the stamp duty of it.
3. Shri N.K. Gupta, learned senior counsel, criticized the said order. He submits that a minute reading of the memorandum makes it clear that the oral partition took place between the parties in December, 2005. On the basis of said oral partition, the parties 2 W.P. No. 1750/2013 occupied their share of the property. The said oral partition was subsequently reduced in writing in the shape of memorandum dated 15.11.2006. No rights, for the first time, are created or transferred by the said memorandum and, therefore, it is not compulsorily registrable. He relied on certain judgments on this aspects.
4. Per Contra, Shri O.P. Shrivastava, learned counsel for the respondents No. 3 to 5, supported the order passed by the court below and relied on AIR 2004 SC 4130 [K.G. Shivalingappa and others Vs. G.S. Eswarappa and others].
5. I have heard the learned counsel for the parties and perused the record.
6. The order of the court below shows that the court below has treated the memorandum as a document by which right in favour of certain parties is created for the first time. The court below opined that:-
"A perusal of furd batwara (memorandum of partition) reveals that there is not formal oral partition amongst the family members of both parties. The respective plaintiff intended to be an evidence of furd batwara against defendants, which is compulsory registrable u/s 17(1)(b) of the Registration Act because there is a creation of right title, interest, declaration in praesenti and future. There is a right created or extinguished of both parties in the said document. So the same is registrable according to sec. 17(1)(b) of the Registration Act."
7. A microscopic reading of said memorandum shows that finding of court below is perverse in nature. In no uncertain terms, it was made clear in the memorandum that the oral partition had taken place in December, 2005. On the basis of this partition, the parties have taken possession of their respective shares of the land/ property. On more than one place in the memorandum, it is mentioned that the oral partition had earlier taken place and description of it is given in memorandum dated 15.11.2006. Thus, the finding of court below is perse erroneous that earlier no formal oral partition had taken place. The aforesaid findings of court below runs contrary to record.
3 W.P. No. 1750/20138. A Division Bench of this Court in 2010 (1) MPLJ 580 [Guljarilal Jain Vs. Ravikant Shirke], opined that when document in question is merely acknowledgment of earlier oral partition, a document is not chargeable to stamp duty. The Apex Court in (2006) 3 SCC 605 [N. Khosla Vs. Rajlakshmi and others] opined that:-
"What Section 17(1)(b) of the Act requires is the creation of rights by decree in praesenti or in future. Any right created or extinguished in the past is conspicuously absent."
9. The same view is taken in 2011 (3) MPLJ 91 [Suresh Kumar Agrawal and others Vs. State of M.P. and another]. The judgment cited by Shri Shrivastava has no application in the peculiar facts and circumstances of the present case.
10. As analysed above, the impugned order cannot be permitted to stand. The order dated 27.02.2013 is accordingly set aside. Petition is allowed. No costs.
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(Sujoy Paul) Judge abhi