Andhra Pradesh High Court - Amravati
Koyya Ganga Venkata Satya Bhaskara Rao vs Koyya Rama Krishnudu on 8 March, 2019
IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY, THE EIGHTH DAY OF MARCH TWO THOUSAND AND NINETEEN PRESENT THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL REVISION PETITION NO: 240 OF 2019 Petition under Article 227 of Constitution of india aggrieved by the order dated: 4.1.2019 in O.S.No.16 of 2015 an the file of the Court of the Senior Civij Judge, Pithapuram, East Godavari District. Between: 1. Kayya Ganga Venkata Satya Bhaskara Rao, S/o.Gangarao, Hindu, aged 40 Years, Cultivation and Business, R/o.A.V.Nagaram, Thondangi Mandal, East Godavari District. Koyya Murali Krishna, S/o. Gangaraa, Hindu, aged 45 Year, Cultivation and Business, R/o. A.V .Nagaram, Thondangi? Mandal, East Godavari District. ..Petitioners/Plaintiffs . Koyya Rama Krishnudu, S/o. Paparao, Hindu, aged 63 years, R/o. A.V.Nagarani, Thondangi Mandal, East Godavari District. Koyya Suryanarayana, S/o. late Paparao, Hindu, aged 55 years, Rio. A.V Nagaram, Thondangi Mandal, East Godavari District. Koyya Radha Krishna, S/o. Gangarao, Hindu, aged 47 years, R/o. A.\V.Nagaram. Thondangi Mandal, East Godavari District. . Koyya Gangadhara Srinivasarao, S/o. Suyanarayana, Hindu, aged 45 Years, R/o. A.V Nagaram, Thondang! Mandal, East Godavari District. . Respondents/Defendants Petition under Section 161 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S.No.16 of 2075 on the file of the court of the Senior Civil Judge, Pithapuram, East Godavari District pending disposal of the above Civil Revision Petition. Counsel for the Petitioners: M/S. S:SSUBBA REDDY Counsel for the Respondents: SRIN. SIVA REDDY The Court made the following: ORDER THE HON'BLE SRIJOSTICE M.SEETHARAMA MURTI Civil Revision Petition No.240 of 2019 ORDER:
In this revision, under Article 227 of the Constitution of India filed by the plaintiffs, the challenge is to the order, dated 04.01.2019, of the learned Senior Civil Judge, Pithapuram, whereby the learned judge, while wpholding the objection of the defendants, held that the document, dated 08.12.1956, is a partition deed and hence, the same is liable to be charged with stamp duty and penalty and that it cannot be admitted in evidence, even for collateral purposes, unless stamp duty and penalty are paid and collected.
2. I have heard the submissions of Sri 8. Subba Reddy, learned counsel appearing for the revision petitioners-plaintiffs ['plaintiffs', for brevity]? and, of Sri N. Siva Reddy, learned counsel appearing for the respondents-detendants ['defendants', for brevity]. I have perused the material record.
3. The introductory facts, in brief, are as follows: - "The plaintiffs instituted the suit against the defendants for a perpetual injunction in respect of agricultural land with Mango garden of an extent of Ac.6.34 cents in Thammayyapeta Bendapudi gram panchayat, Thondanei Mandal, East Godavari District morefully described in the ex Sy bo MSRM, J C.R.P.NG.240 of 2619 schedule annexed to the plaint. he defendants, having fled a written statement, are contesting the suit. During the course of trial, the plaintiffs tendered, for being marked as an exhibit, a document, dated 08.12.1956, styled as 'Sthrirasti pampakamula jabitha' (immovable property partition list), When the said document is tendered through PW for being matked as an exhibit, learned counsel for the defendants objectec! for making the same on the gtound that the said document is not stamped and registered though it is required to be stamped and registered and that it is inadmissible in evidence. Learned counsel for the plaintiffs submitted that the contents of the said docuinent relect that the partition had taken place some time back and that the document is only a record of past transaction and that it is only a memorandum Of past partition or a partition list evidencing past partition and, therefore, the document does not require to be charged with any stamp duty and is not a compulsorily registerable document. 'The trial Court, having referred to the contents of the document as well as the precedents cited before it upheld the objection of the defendants and recorded a finding that the document in question is a deed of partition and is liable to be charged with required stamp duty and that unless the « stamp duty and penalty are paid, it cannot be admitted in evidence > a MSRM, 3 C.R.PLNo.240 of 2019 » even for collateral purpose. Agarieved thereof, the plaintiffs preferred this revision."
4. At the hearing, learned counsel for both the sides fairly stated that as per the ratio in the decision in In Ram Rattan (dead) by L.Rs. v. Bajrang Lal and others' the trial Court before which the objection is taken about admissibilicy of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.
5. tis also pertinent to note the ratio in-the decision in Bipin Shantilal Panchal v. State of Gujarat and Anr', wherein the Supreme Court has made 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. 'Therefore, the trial Court need not be found fault for iudicially determining the objection thar was taken about the admissibility of document on the eround that it is not duly stamped, as the trial Coutt has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.
"(4978) 3 SCC 236 * AIR 2001 SC 1158 MSRM, J C.R.P.No.240 of 2019 G, Now, the short question is as to whether the document in question is a deed of partition cha reeable with duty or whether it is a memorandum of partition or a partition list evidencing a transaction of past partition?
* There is no dispute with the proposition that the nature/character and the des cription /nomenclature/classification and also the stamp duty payable, if any, on the document have to be determined with reference to the recitals therein and the substance of the transaction embodied in the instrument and not with reference to the title, caption or narme given to the instrument. Purther, for classification of ins truments, that is, to determine whether an instrument comes within a particular description in an Article to the Schedule to the Indian Starap Act, the instrument should be tead and construed as a whole. The name or the caption given to the decument is not determinative and the nature or character or the substance of the transaction contained in the document is only the determinative factor. Hence, havin & regard to the substance of the transaction contained in the deed in question, its nature and character have to be firse ascertained: and, it is to be further determined as to whether it is required to be stainped or not.
& In the light of the said settled legal position, I have carefully gone through the contents of the document in question. The introductory part recites that kK. Papa Rao, K. Rama owamy and K. Ganga Rao jointly executed the document by styling it as 'Sthrirasti pampakaniula jabitha' (immovable property partition list). As already noted, the nomenclature or the name given by the parties to the document is not the determining factor, The relevant tecitals in Telugu read as under:
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Do Soa). cn akg SRA. Ce tue So. Se Fo Aa ed; oR)... DOs ATRL yV.BU-2.---- A)» BA DO Remaever fy 30Sae oot vece 6 Aa Nd or ey oe tsb. wha, neue nenn vast enews penne nang monn MSRM, J C.R.P.No.240 of 2019 The purport of the above recitals may be stated as follows: - "The father of the executants 1 & 2 and the etand father of K. Ganga Rao are brothers. The said Gangaiah's adopted son, Ganga Rao, and the father of Ramaswamy and Papa Rao by name Papaiah used to enjoy the immovable properties jointly with equal rights. 'The said K. Ganga Rao and Papaiah died. Thereafter, the properties mentioned in the document devolved in two shares, that is one share upon KB. Ganga Rao and the remaining share upon Papa Rao & Ramaswamy together. They did joint cultivations upto 1955 and later divided the properties into two shares temporarily. However, for affecting permanent repairs and for permanent partition, to avoid claims against one another, the properties were partitioned mto two shares equally as share 'A' and share 'B' and each sharer has taken possession of his respective share with absolute rights to enjoy, gift and sell the respective shares from the date of execution of the document. 'The two sharers of A and B shares shall not raise dispute that the shares are unequal and are not according to good and bad qualities. And, each sharer shall pay tax separately on the respective allotted share, to the Government without reference to the other share.'
9. The above and other recitals in the document, without doubt, make it manifest that under the very document the immovable MSRM, J C.R.P.No.240 of 2019 properties are permanen tly pattitioned once and fot all into two shares (A and B) and one share each is allotted to the cligible sharer declating that cach sharer shall enjoy the allotted share with absolute tights including the tights to enjoy, gift, sell, etcetera by paying taxes to the Government on the allotted share independently, It is also recited, as already noted, that the parties to the document shall not raise dispute that the shates are uncqual and/or are not in accordance with good and bad qualities at any time in future.
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10. Having thus considered the transaction embodied in the document, this Court fines itsel F in dgreement with the finding of the Court below that the document in question is a deed of partition and NOL a Memorandum of partition or a list of partition recording past pattition and that, therefore, the document in question is required to be charged with du ty and that as itis not charged with any duty it is inadmissible in evidence until tequired stamp duty and penalty are paid as per the provisions of the Indian Stamp Act.
TH. On the above ans lysis, this Court holds that the contentions that the deed in question is only a recotd of past partition cannot be countenancec.
12. Dealing with the next aspect as to whether the said document can be permitted ta be eshibited for collateral purpose, it is to be MSRM, J C.R.P.No.240 of 2019 -
nated daat in the decision in the case of Avinash Rumar Chauhan vs. Vijay Krishna Mishra [2009 (2) L 5S 35 (SC)], the Supreme Court referred to the following ratio in the decision in the case of FP. Bhaskar Rao vs. 'I. Gabriel and other [ATR 1981 AP 175]::
"Tr is mow well setiied that there is neo prohibition ander section 49 of the Repistration Act, to receive an unregistercedl document in evidence for collateral purpose. But the document so tendered should be duly stamped oor should comply with the requirements of section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duty stanyped or duty and penalty arc paid under section 35 of the Stamp Act."
13. In view of the saicl Jegal position, ic tollews that the document cannot be acimitted even for collareral purpose unless the required stamp duty and penalty collectable an the instrument are paid anc collected, teh = Por all the afore-statecl reasons, this Court finds thar the impecned order brooks ne haterference.
15. In rhe resale, the Civil Revision Petition is dismissed. "There shall be me crcler as to costs.
Miscellaneous petitions poncliay, if any, shall stand closecl.
Sdj/- CH. VENKATESWAR ASSISTANT REGISTRAR UTRUE COPY! :
SECTION OFFICER the ; stice tharama Murti Fair Co to the Hon'ble Sri Justice M.See One Fai or Mis Lordships Kind Perusal
4. The Senior Civil Jucige at Pithapuram, Fast Godavari District.
we © 2. Copies. . a nice ane Compat " Sag Under Secretary, Union of India, Ministry of Law, Justice and Compariy "Affairs, New Delhi, * ; . ee 4a Sele cratairy Advocates Associstan Library, High Court Buildings, ~ Amaravathi. .
8 'One CC to SiS. Subba Reddy, Advocate JOPUC] § One Ge to Sti N Siva Reddy. Advocate [OPUC]
7. Two CD Copies.
HIGH COURT DATED:08/03/2019 ORDER CRP.No.240 of 2019 DISMISSING THE C.R.P. WITHOUT COSTS eo ee FH_, AYUS)OONG be. , "ns fifiacte ,