Andhra HC (Pre-Telangana)
A. Krishna And Anr. vs A. Arjun Rao And Anr. on 24 March, 2004
Equivalent citations: AIR2004AP502, 2004(3)ALD34, 2004(2)ALT757, III(2004)BC525, AIR 2004 ANDHRA PRADESH 502, (2004) 19 ALLINDCAS 177 (AP), (2004) 24 INDLD 150, (2004) 2 CIVILCOURTC 194, (2004) 2 ANDH LT 757, (2004) 3 ANDHLD 34, (2004) 3 BANKCAS 525, (2004) 3 CURCC 54
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. Aggrieved by the order dated 17-4-2003, passed by the II Additional District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, in O.S.No.26 of 2002, holding that the document dated 3-6-1977, which is sought to be introduced in evidence, as not admissible and consequently refusing to receive and mark the same, the petitioners who are the plaintiffs filed this C.R.P.
2. A perusal of the order and other material on record, would disclose that the plaintiffs filed suit O.S. No. 26 of 2002 against the defendants for partition of the suit schedule properly. According to the plaintiffs, Defendant No. 1 and the plaintiffs are sons of one late Sattaiah. Defendant No. 2 is the wife of Defendant No. 1. According to the plaintiffs, their father is the absolute owner and possessor of the suit schedule property and when he failed to pay arrears of rentals in excise business, the Government auctioned the suit properties. Initially, the said property was purchased by one Tirumalachari. Later, father of Defendant No. 1, namely Subodh Kishan purchased the property in 1968 from the auction purchaser. Later when the father of the plaintiffs intended to purchase the same, father of Defendant No. 2 agreed to sell the same to the family on condition that the suit schedule property be purchased in the name of Defendant No. 2. According to the plaintiffs, though the suit schedule property was purchased in the name of Defendant No. 2, the same was purchased for the benefit of the entire joint family. It is further averred by the plaintiffs that the document under which the property was purchased in the name of Defendant No. 2 is an unregistered sale deed dated 1-3-1968. According to them, the property was treated as joint family property after the death of their father till oral partition was effected in 1976. It is further averred that the suit schedule properties were not partitioned in 1976 by metes and bounds. In order to avoid future complications, family arrangement document was executed on 3-6-1977 between the plaintiffs and defendants in the presence of elders. When the plaintiffs sought to produce the said document to be marked in evidence, defendants took an objection that the suit schedule property is the self-acquired property of their father, and that document dated 3-6-1977 is inadmissible in evidence. It is further contended that the sale deed in favour of Defendant No. 2 cannot be challenged in view of the prohibition contained in the Benami Transactions Prohibition Act, 1988. The Court below upon considering the rival contentions, refused to receive the document in evidence. Aggrieved thereby, the present C.R.P. is filed.
3. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.
4. It is the case of the petitioners-plaintiffs that the document dated 3-6-1977, which they sought to introduce in evidence, does not require registration as the same is only a family arrangement evidencing earlier partition. On the other hand, it is the case of the respondents that the recitals in the document which the petitioners seek to introduce in evidence, evidence conveyance of rights of the respective parties, and inasmuch as the said document evidences partition of the suit schedule property between the parties, the same is liable for stamp duty and requires registration.
5. In the light of the rival contentions, the only point that arises for consideration is whether the document sought to be marked in evidence is inadmissible on the ground that it requires registration?
6. To consider this question, a reference be made to some of the relevant provisions of the Indian Stamp Act, 1899 (for short 'the Stamp Act').
7. Section 2(6) of the Stamp Act, defines 'chargeable' to mean as applied to an instrument executed or first executed after the commencement of the Act and as applied to any other instrument, chargeable under the law in force in India when such instrument was executed or, where several persons executed the instrument at different times, first executed. As per Section 2(11) of the Stamp Act, 'duly stamped' as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for the time being in force in India. As per Section 2(14) of the Stamp Act, 'instrument' includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded and as per Section 2(15) of the Stamp Act, 'instrument of partition' means any instrument whereby co-owners of any provide divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an Arbitrator directing a partition and a memorandum regarding partition.
8. A reading of the contents of the document which the plaintiffs seek to introduce and mark in evidence, discloses that the elders conferred rights on the parties in some immoveable property by virtue of the said document, and having regard to the provisions of the Stamp Act, the document which indicates earlier partition of the suit schedule property, requires registration under the provisions of Section 17 of the Indian Registration Act, 1908 as the value of the property is worth more than Rs. 100/-, as otherwise, it would be inadmissible in evidence as contemplated under Section 35 of the Stamp Act, which reads thus:
Instruments not duly stamped inadmissible in evidence etc. :--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
9. From a reading of the above provision, it becomes clear that the instrument which is chargeable with duty shall not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless the instrument is duly stamped. The phrase 'any purpose' appearing in Section 35 of the Stamp Act, came up for consideration before a learned Single Judge of this Court in Sanjeeva Reddy v. Johanputra Reddy, 1972 An.WR 232. Interpreting the said provision, it was held that no part of a document be it a single sentence, a word or a signature, which is chargeable with duty, can be received in evidence and to do so is to do in violation to Section 35 of the Stamp Act.
10. The underlying object of Section 35 of the Stamp Act is to ensure that the instrument chargeable with duty is duly stamped, as otherwise it would cause loss to the exchequer, and in order to save revenue to the State, the provision makes the instrument which is not duly stamped inadmissible in evidence. In the instant case, the plaintiffs by seeking to produce the document dated 3-6-1977, which is in the nature of memorandum of partition between the parties, are seeking to extinguish the exclusive right created in favour of Defendant No. 2. As per the recitals of the document, it is clear that partition has been effected by specifying the shares, which includes payment of maintenance to their mother, in that view of the matter, the document dated 3-6-1977 cannot be said to be memorandum regarding past partition. A perusal of the document further discloses that actual partition was not done by metes and bounds as per earlier partition. By virtue of the document, according to the plaintiffs, separate possession was sought to be delivered to the respective parties, and as such, it is evidencing partition. In this context, it is relevant to state that the document sought to be marked does not contain recitals that the parties have already taken possession of the properties by virtue of the earlier oral partition and continue to enjoy the said property separately after taking possession by virtue of the earlier partition. In the absence of any such recitals in the document, the Court below has rightly come to the conclusion that the document is required to be stamped and registered.
11. The findings arrived at by the Court below being in conformity with the provisions of Section 2(15) read with Section 35 of the Stamp Act, do not call for interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
12. The CRP, for the foregoing reasons fails, and the same is accordingly dismissed. However, the Court below shall dispose of the suit on its own merits uninfluenced by any of the observations made in this CRP. No costs.