Madras High Court
Kaliappan vs Kuzhandhaivelu on 14 December, 2010
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.12.2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P PD.No.2476/2009 and M.P.No.1/2009 Kaliappan ... Petitioner / 1st Defendant vs. Kuzhandhaivelu ... Respondent / Plaintiff Civil Revision Petition filed under Article 227 of the Constitution of India against the fair order and decreetal order dated 05.06.2007 passed in I.A.No.1332 of 2001 in O.S.No.418 of 1999 on the file of Subordinate Judge, Namakkal. For Petitioner : Mr.R.Subramanian For Respondent : No appearance. O R D E R
The petitioner is the first defendant in O.S.No.418 of 1999 on the file of the Sub Court, Namakkal. It is a suit for partition filed by the respondent. Both the parties are brothers. When the defendant comes forward with a document captioned as "ghfg;gphptpid cld;gof;ifg; gj;jpuk;", the plaintiff raised strong objection to mark the document stating that by virtue of the said document, the division purported to take place and hence it would attract Section 2 (15) of the Indian Stamp Act and Section 17 (1) (b) of the Indian Registration Act as well. It is contended by the petitioner that it is a mere agreement to divide the properties between the parties in a future date, which agreement came to existence in the presence of panchayatras and since it does not create any right by itself, there is no impediment to mark the document and to admit the same in evidence.
2. The learned Sub Judge, after hearing both sides, passed an elaborate order rejecting the contention of the petitioner and observed that the documents produced by the defendant is not admissible in evidence and posted the case for further evidence of defendant.
3. The learned counsel for the petitioner Mr.R.Subramanian laboured hard to convince this Court by taking this Court to the recitals contained in the said document and contended that the very reading of the document would show that in the presence of the panchayatras they accepted to divide the properties and to enter into the registered partition deed within three months from the date of the document and after the registration of the document, the partition suit has to be withdrawn by the plaintiff. In this context, it is profitable to extract the recitals with the property particulars as such ;
ehkpUtUk; rnfjuh;fs; Mf ntz;Lk;/ ek;Kila jha[k;. jfg;gdhUk; fhykile;Jtp[l;lhh;fs;/ ekf;F bghJthf ghj;jpag;gl;l FLk;g brhj;ij ehk; ,UtUk; Vfkdjhf gphpj;Jf;bfhs;s ntz;bkd;w ey;y vz;zj;Jld fPH;fz;l. rhl;rpfs; Kd;dpiyapy; gphpj;Jf;bfhz;Ls;nshk;/ mjw;fhf ,e;j cld;gof;ifg; gj;jpuj;ija[k; vGjpf;bfhz;Ls;nshk;/ fPnH tpthpf;fg;gl;Ls;s *V* bc&l;a{y; brhj;ij ek;kpy; 1 yf;fkpl;ltUk;. *gp* bc&l;a{y; brhj;ij ek;kpy; 2 egUk; mile;J bfhs;s ntz;oaJ/ ek;kpy; 2 egh; ePjp kd;wj;jpy; 1 egh; kPJ ehkf;fy; rg; nfhh;l;oy; X/v!;/be/418-99?d;go bjhlh;e;Js;s ghf tHf;if ghff;fhuh; gj;jpuk; gjpt[ Mdt[ld; thg!; bgw;Wf;bfhs;tbjd;Wk;. EhsJ njjpapypUe;J K:d;W khj fhyf;bfLtpw;Fs; ehk; ,UtUk; ghfk; gj;jpuk; gjpt[ bra;a[k; fyj;jpy; Vw;gLk; bryt[fis ehk; ,UtUk; rkghfkhf gphpj;Jf;bfhs;tJ vd;Wk; Xj;Jf;bfhz;L ,e;j cld;gof;if gj;jpuj;ij vGjpf;bfhz;Ls;nshk;/ *V* bc&l;a{y; 1 yf;fkpl;l fhspag;gd; mila[k; brhj;J tpguk;/
1) ehkf;fy; hPPo ntYhh; rg; hPPo g[d;bra; ,ilahh; nky;Kfk; fpuhkk; ntYhh; g";rhaj;J 5tJ thh;Lnfhsh; bjU. fjt[ vz;/628-61 Xl;Ltpy;iy tPL/
2) i& hPPo ntYhh; fpuhkk; r/be/ 25y; e/V/0/90 brz;Lg{uht[k;/ *gp* bc&l;a{y; ek;kpy; 2 yf;fkpl;l FHe;ijnty; mila[k; brhj;J tpguk;
1) fUh; khtl;lk; Fspj;jiy rg; hPPo kUJhh; fpuhkk; r/be/415-1Vy; Vf;/3/37y; V 1/00 kl;Lk;/
2) kUJhh; fpuhkk; f/r/be/271-191Vy; V 0.68 brz;L g{uht[k;/
3) i& fpuhkk; f/r/be/271-1vg;/ 1/61y; V 0/72 brz;L epyk;/
4. The document is dated 06.12.2000. There are two portions in the documents which attract the attention of this Court. One is "fPH;fz;l rhl;rpfs; Kd;dpiyapy; gphpj;Jf;bfhz;Ls;nshk;" (means in the presence of witnesses we have divided the properties). For the said division, the agreement has been executed, the next line reads.
5. However, both the parties agreed to get the agreement registered within three months. When both the recitals in the document are carefully scrutinized, the necessary corollary would be that by virtue of the document, they divided the properties and they also fixed specific portions to be taken by each of them and the other portion indicates that there is an agreement to get the registered document executed within three months and to divide the expenses for registering the document equally. In my considered opinion, the rights of the parties are created by this document in the properties divided in praesenti.
6.The learned counsel for the petitioner would place much reliance upon a Full Bench decision of this Court reported in AIR 1980 MADRAS 97 [The Board of Revenue, Madras v. M.Swaminatha Chettiar] wherein it is held that the document in question was neither an instrument of partition nor an agreement to divide the property in severalty but it was merely a record of an agreement with the avowed intention of executing documents in future so as to secure individual title over the properties in question and hence the document shall fall within Section 2 (15) of the Stamp Act. The Full Bench has also referred to an earlier judgment of this Court. The operative portion of the judgment goes thus :
2. The question therefore is whether such an instrument vests or divests in praesenti any title in property, immoveable or moveable, as between the contesting claimants. We have already expressed the view that the panchayatdars merely suggested a mode of division of the common properties and the parties themselves have voluntarily agreed to abide by the award of the Panchayatdars and they have also made it clear that "suitable documents will be executed in due course". This makes it clear that the intention of the parties at or about the time when they accepted the arrangement suggested by the Panchayatdars was that they were accepting the mode of division, but postponed the date of actual division to a future date when the necessary instrument or document would be executed so as to vest or divest title on the contesting claimants of properties which were by then held in commensality as between them. This specific expression of intention to act in future makes this document not an instrument by way of an agreement to partition but only a document whereby the mode of division of the properties has been accepted by the contesting claimants leaving to themselves the right to execute necessary documents in future so as to acquire absolute title in those properties which they had to take as per the arrangement. In fact, in a similar case in Devasikamani Goundar v. Andamuthu Goundar (1955) 1 Mad LJ 457 Dr.Rajamannar, C.J. expressed the view that in such circumstances the document in question, not being one which purports to divide the properties, cannot fall within Section 2(15) of the Indian Stamp Act, and it was a case where the Panchayatras pursuant to a varthamanam letter executed by the contesting claimants suggested a mode of division.
7.In the above said case, the parties accepted mode of division but postponed the actual division to a future date. But here, the facts are otherwise. In the present case on hand, the intention of the parties could be garnered from the recitals contained in the agreement. They intended to create right over the properties by virtue of the document itself which is indicated by the recital to the effect that in the presence of witnesses, they have divided the properties. There is no option for this Court except to interpret the said recital that both of them by means of the agreement divided the properties.
8.For the same preposition, the learned counsel for the petitioner cited a judgment reported in AIR 1933 MADRAS 162 [Gangaiya and another v. China Lingaiya] in which it is held that the partition list is not an instrument of partition within the meaning of S.2 (15), Stamp Act, because it did not by itself effect any division as the agreement for a subsequent stamped and registered instrument shows, but was an agreement for effecting a future partition on the terms agreed. In this juncture also, the facts of the present case are distinguishable. In the on hand, by no stretch of imagination, the agreement could be termed to be a partition list. It does not say that already the properties were divided among the parties and in order to confirm or bring to record the earlier partition, the document is being executed. A cautious reading of the document does not show that the document is brought about as an agreement to divide the properties on a future date. With cost of repetition, it is stated that division took place under this document and execution of registered partition deed alone has been postponed to a future date. In view of the above said position, the contention of the learned counsel for the petitioner could not be countenanced. Hence, this document would attract Section 2 (15) of the Stamp Act and Section 17 (1) (b) of the Registration Act. The document is liable for stamp duty and it is compulsorily registrable. Hence, it is not admissible in law.
9.In the light of what has been observed earlier, I am of the firm view that the order challenged before this Court does not warrant any interference from this Court which deserves to be confirmed and it is accordingly confirmed. The revision suffers dismissal.
10.In fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
14.12.2010
Internet : Yes
Index : Yes
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S.PALANIVELU, J.
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To
The Subordinate Judge,
Namakkal.
Order in
C.R.P PD.No.2476/2009
14.12.2010