Andhra Pradesh High Court - Amravati
Yadala Subbarao vs Inturi Bhagya Lakshmi on 8 July, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HONOURABLE SRI JUSTICE M.SEETHARAMA MURTI
CIVIL REVISION PETITION No.1092 of 2019
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, is filed by the unsuccessful petitioners/defendants assailing the order, dated 18.02.2019, in I.A.No.1008 of 2016 in O.S.No.171 of 2011, passed by the learned Junior Civil Judge-cum-Judicial Magistrate of First Class, Vinukonda.
2. I have heard the submissions of the learned counsel for the petitioners/defendants ('the defendants' for brevity) and of learned counsel for the respondents/plaintiffs ('the plaintiffs' for brevity). I have perused the material record.
3. From the submissions made and the content of the material record, the following facts are discernible:
'The plaintiffs instituted a suit for perpetual injunction, inter alia, contending that already there was a partition and that the said fact is evidenced by a partition list, dated 16.03.2000, which was entered into by the parties along with their mother, Kotamma. The plaintiffs also contend that another partition list, dated 13.06.2005, was also entered into after the death of their mother. The defendants are resisting the suit. During trial i.e., at the time of examination-in-chief of the first plaintiff (PW1), when the partition lists were tendered in his evidence for being exhibited, the defendants objected for marking of the 2 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 aforestated two documents, which are styled as partition lists, on the ground that the said documents are chargeable with duty in view of the law applicable in the State of Andhra Pradesh to such instruments and that the same are not duly stamped and that stamp duty and penalty are collectable on the said documents and that the said documents are inadmissible in evidence in the light of the provision of Section 35 of the Indian Stamp Act, 1899 ('the Act' for brevity) (applicable in Andhra Pradesh and Telangana) and hence, the same cannot be permitted to be marked unless required/deficit stamp duty and penalty are paid. The trial Court, while noting the said objection of the defendants, marked the subject documents as exhibits A8 and A9 subject to objection.
Aggrieved thereof, the defendants filed the subject interlocutory application to demark the said documents, as marking of the said documents subject to objection is contrary to the settled legal position. The plaintiffs resisted the subject interlocutory application. By the order impugned, the trial Court dismissed the said interlocutory application of the defendants and therefore, the defendants are before this Court.'
4. Learned counsel for the petitioners/defendants would submit as follows: "The subject documents, which are marked subject to objection as exhibits A8 and A9 and which are styled as partition lists, are required to be stamped as the said instruments are chargeable with duty. Further, when an objection as to the admissibility of the subject documents on the ground that they are not duly stamped or insufficiently stamped is raised, the trial Court is obliged to decide the said objection in the first instance, that is, before proceeding further in 3 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 the matter. The marking of the said two documents subject to objection is contrary to the settled legal position." In support of his said contentions, learned counsel placed reliance on a decision of a three- Judge Bench of the Honourable Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat1. He has also invited the attention of this Court to the amendment to Section 2(15) of the Act, which came into effect from 16.08.1986, wherein, in the definition of 'instrument of partition', partition list is also included. He, finally submitted that the impugned order of the trial Court is unsustainable and that the same is liable to be set aside and that the matter is required to be remanded to the trial Court for consideration, afresh, in accordance with law.
5. Learned counsel for the respondents/plaintiffs, having drawn the attention of this Court to the pleadings in the suit to the effect that there was an earlier partition, submitted that the two documents, which are partition lists, evidence transactions of past partitions, and inter alia, contended that the subject documents are admissible being partition lists and that they can be relied upon for showing previous partitions. And, he placed reliance on a decision of a Division Bench of the Honourable Supreme Court in Thulasidhara vs. Narayanappa2.
6. I have given earnest consideration to the facts and the submissions.
7. I have gone through the copies of the subject documents, which are filed along with the material papers. The first document, dated 1 (2001) 3 SCC 1 2 2019(7) SCALE 488 4 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 16.03.2000, is styled as partition list and it was engrossed on stamp papers worth Rs.30/-. The second document, dated 13.06.2005, is also styled as partition list, and it was also engrossed on stamp papers worth Rs.30/-.
8. It is pertinent here to extract Section 2(15) of the Act, which reads as under:
"2(15) ― "Instrument of partition" -- instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, 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 past partition"
A reading of the above provision makes it manifest that in view of the amendment that came into effect from 16.08.1986, 'instrument of partition' means a memorandum regarding past partition also.
9. Section 35 of the Act postulates that instruments chargeable with duty and not duly stamped are inadmissible in evidence. Since, 'instrument of partition' means a 'memorandum regarding past partition' in view of the definition under Section 2(15) of the Act, stamp duty is payable on all partition lists, with effect from 16.08.1986. In the decision in Bipin Shantilal Panchal (1 supra), the Supreme Court, while commenting on archaic practice of dealing with the objections during the course of recording of evidence, held as follows:
"When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a 5 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep evidence excluded from consideration. In our view, there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)"
In view of the precedential guidance, there is no cavil that when an objection related to admissibility of a document on the ground that it is not duly stamped or is insufficiently stamped is raised, the trial Court is required to decide the said objection, before proceeding further in the matter, and that it is not supposed to mark such document subject to objection. Therefore, this Court finds that the procedure adopted by the trial Court in marking the documents in question subject to objection, which causes prejudice to the defendants and which is opposed to the precedential guidance in the decision of the Supreme Court is not correct. Accordingly, and as the subject documents styled as partition lists were permitted to be exhibited subject to objection, without first deciding the objection related to the deficiency of stamp duty, this Court holds that the impugned order is liable to be set aside.
9. Before parting, dealing with the contentions of the learned counsel for the respondents/plaintiffs and the decision relied upon by him in Thulasidhara (2 supra), it is to be noted that the facts of the said cited case show that it is a decision arising from a place within the 6 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 State of Karnataka. Nevertheless, in view of the amended provision of the Act applicable in the State of Andhra Pradesh, for the purpose of payment and collection of stamp duty, a partition list is placed on par with a deed of partition. Therefore, in the considered view of this Court, the ratio in the said decision cannot be applied to the facts of the present case and the decision does not advance the case of the plaintiffs any further.
10. Dealing with the contention that the partition lists can be marked for collateral purposes, in the first place, it is to be noted that a document/instrument, which is chargeable with duty or which is required to be stamped and which is not duly stamped or is insufficiently stamped, is not admissible in evidence even for collateral purpose unless the stamp duty/deficit stamp duty & penalty payable thereon are paid by the party and collected by a competent authority. The said proposition of law is laid down in Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao [(2015) 16 SCC 787]. Therefore, even if it is to be considered that the partition lists in question can be admitted in evidence for any collateral purpose, yet the Court is obliged to first deal with the objection of the defendants that the instruments (partition lists/documents) though are chargeable with duty are not duly stamped and is further required to arrive at a just decision on the said question and record findings on the question as to whether the said instruments are duly stamped, and, if not so, what is the stamp duty/deficit stamp duty and penalty that are payable on each of the two instruments/documents. Till such an exercise is first completed, in accordance with the procedure 7 MSRM,J C.R.P.No.1092 of 2019 08.07.2019 established by law, the question of consideration of the request for according permission for marking the instruments for collateral purpose would not arise for consideration.
10. In the result, and for the afore-stated reasons, the Civil Revision Petition is allowed and the impugned order, dated 18.02.2019, in I.A.No.1008 of 2016 in O.S.No.171 of 2011 on the file of the learned Junior Civil Judge, Vinukonda, is set aside and the matter is remitted to the said learned Junior Civil Judge for appropriate consideration, afresh, in accord with the procedure envisaged under law and the precedential guidance in the decision in Bipin Shantilal Panchal (1 supra). Since the suit is a sufficiently old suit, the trial Court is directed to endeavour to complete the necessary exercise in the above regard within one month from the date of receipt of a copy of this order.
As a sequel, pending miscellaneous petitions, if any, shall stand dismissed. No order as to costs.
_________________________ M. SEETHARAMA MURTI, J 08th July, 2019 ghn 8 MSRM,J C.R.P.No.1092 of 2019 08.07.2019