Madhya Pradesh High Court
Rakesh Kumar Sundrani vs Jagdish Prakash Angal on 24 November, 2016
Equivalent citations: AIR 2017 (NOC) 461 (M.P.) (GWALIOR BENCH)
Author: Rohit Arya
Bench: Rohit Arya
1 Writ Petition No.871/2016
High Court of Madhya Pradesh
Bench at Gwalior
Writ Petition No.871/2016
Rakesh Kumar Sundrani & Anr.
Vs.
Jagdish Prakash Angal and 0thers
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Shri N.K.Gupta, learned senior counsel with Shri Sanjay
Kumar Sharma, learned counsel for the petitioners.
Shri K.N.Gupta learned senior counsel assisted by Shri
R.S.Dhakar, learned counsel for respondents No.1 & 2.
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ORDER
( 24 / 11 /2016) Rohit Arya, J This writ petition under Article 227 of the Constitution of India by defendants is directed against the order dt.27.01.2016 dismissing the application filed under Section 17 of the Indian Registration Act read with Section 2 (15) of the Indian Stamp Act.
2. Facts relevant and necessary for disposal of the writ petition are that the plaintiff No.1 and defendant No.1 are real brothers, sons of Chandraprakash Angal, who passed away on 28.5.1987. A suit for declaration and injunction is pending consideration inter alia contending that properties described in the plaint, in fact, have already been partitioned by way of family arrangement. All brothers/members of the family are in possession of their respective part of joint family property and enjoying the same. In order to acknowledge the partition arrived at amongst the parties, a document was written on 15.2.1992. The dispute, however, arose with the plea that the properties fallen to the share of plaintiffs have been transferred by defendant No.1 to defendants No.2 and 5 and the same being contrary to the settlement and the instant suit for declaration and injunction has been filed. During pendency of the suit, defendants filed an application questioning the admissibility of the document 2 Writ Petition No.871/2016 dt.15.2.1992 (Ex.P/3) for want of sufficient stamp duty and registration showing the document as partition in view of Section 2 (15) of the Indian Stamp Act 1899 and Section 17 (1) (b) of the Registration Act, respectively.
Plaintiffs filed reply inter alia contending that the document (Ex.P/3) is the acknowledgment of settlement arrived at amongst the brothers of the family on 15.2.1992, so it is not a partition deed. Hence, no exception thereto can be taken that it is not admissible for the reason of insufficiently stamped or not registered. It is also contended that the application has been filed after 12 years of filing of the suit, as such it is formidably delayed. Moreover, similar application has already been decided in the past. Plaintiffs' evidence has been closed about one and half years ago and the question of admissibility of document has been decided earlier. The same is already marked as exhibit. The document (Ex.P/3) being acknowledgment of partition only as evidence, therefore, it is properly stamped and hence, the application deserves to be dismissed.
3. Trial court has observed that as a matter of fact the document has already been exhibited in evidence and marked as Ex.P/3 on 14.7.2014 during the course of examination of plaintiff's witness Jagdish Prasad Angal and no such objection thereto was taken at that time. The document dt.15.2.1992 is only an acknowledgment of oral partition pursuant to family arrangement amongst the brothers of the family and consequently, dismissed the application.
4. Shri N.K.Gupta, learned senior counsel contends that -
(i) On careful perusal of recitals in the document dt.15.2.1992 (Annexure P/5) suggests that it is an instrument of partition within the meaning of Section 2 (15) (iii) of the Indian Stamp Act exigible to stamp duty under Article 48 of the Schedule 1A. As such, for want of sufficient stamp, the document is not admissible in 3 Writ Petition No.871/2016 evidence and illegally marked as exhibit. The document is also liable to be impounded
(ii) The document (Annexure P/5) being a partition deed required to be registered under Section 17 (I) (b) of the Registration Act, as such for want of registration, the document shall suffer the consequences flowing from Section 49 of the Registration Act, as neither can it be received as evidence of any transaction affecting immovable property nor conferring any right whatsoever.
(iii) Trial Court on misconception of the terms of the instrument of partition deed dt.15.2.1992 (Annexure P/5) wrongly construed it to be a memorandum of family arrangement and admissible for collateral purpose of showing nature of possession under proviso to Section 49 of the Act.
Under such circumstances, trial court committed a grave illegality and exceeded its jurisdiction while rejecting the application filed under Section 2 (15) of the Stamp Act read with Section 17 (1)(b) of the Registration Act.
5. Per contra, Shri K.N.Gupta, learned senior counsel for the respondents/plaintiffs contended that careful perusal of the recitals of the document dt.15.2.1992 (Annexure P/5) suggests that it does not effect the partition but merely records the nature of the arrangement arrived at amongst the brothers as regards division of the property already in existence, in other words, the acknowledgment of family arrangement in existence. As such, the document is not an instrument of partition but an acknowledgment of partition, hence, not exigible to stamp duty under Section 48 Schedule 1A appended to Stamp Act.
Even if the document is construed to be an instrument of partition, the same having been held to be admissible by the trial court and marked exhibit during the course of examination-in-chief of the plaintiffs' witness on 14.7.2014, in absence of any objection in that 4 Writ Petition No.871/2016 behalf, such objection raised later on has rightly been rejected in view of Section 36 of the Indian Stamp Act. The law in this regard is no more res integra in view of the judgment of the Supreme Court in Javer Chand Vs. Pukhraj Surana - AIR 1961 SC, 1655 wherein the Hon'ble Court held as under :-
"4. .......Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction"
Learned counsel further contends that the document (Ex.P/5) being acknowledgment of partition of various items of the joint family property already in existence in possession of the members of the family, does not create, declare, assign, limit or extinguish any right, title or interest in the property and hence, is not required to be registered under Section 17 (1) (b) of the Registration Act. Therefore, the same can be used as evidence of collateral transaction of acknowledgment of partition already in existence amongst the members of the family under proviso to Section 49 of the Registration Act.
It is further submitted that the trial Court did not commit any error of law while it held that the document is not an instrument of partition but an acknowledgment of partition already in existence and therefore did not 5 Writ Petition No.871/2016 commit any error of law or fact by rejecting the application under Section 17 of the Registration Act and Section 2 (15) of the Stamp Act warranting interference under Section 227 of the Constitution of India. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Roshan Singh Vs. Zile Singh - AIR 1988 SC 881.
6. Before adverting to rival contentions, it is considered apposite to quote the provisions of Section 2 (15) of the Stamp Act and Section 17 (1)(b) of the Registration Act and Section 49 of the Registration Act :-
"(15) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes -
(i) a final order for effecting a partition passed by any revenue authority or any Civil Court;
(ii) an award by an arbitrator directing a partition; and
(iii) when any partition is effected without executing any such instrument, any instrument or instruments, signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners.
17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866) or the Indian Registration Act, 1871 (8 of 1871) or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) xxx xxx xxx
(b) other non-testamentary instruments
which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property ;
6 Writ Petition No.871/201649. Effect of non-registration of documents required to be registered.-- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall--
(a) x x x xxx xxx
(b) x x x xxx xxx
(c) x x x x x x xxx
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."
7. Upon careful perusal of the recitals contained in documents, particular in paras 1,2,3,4,5 11 and 12, it is clear that -
(I) after the demise of father of the plaintiff No.1 and defendant No.1 on 28.5.1987, oral partition had taken place amongst them with the consent of family members and according to oral partition, each party is in possession of his respective share doing their business or cultivation etc.
(ii) The document is executed with the consent of parties to avoid any dispute amongst the successors of both the parties in respect of properties apportioned amongst them by way of oral agreement.
(iii) Further elaboration thereof have been made in following paragraphs with the conclusion that oral partition, effected after the death of the father, was acted upon immediately and the instant document has been prepared at a later stage to complete the same (relevant part of paras 11 and 23).
8. The document dt.15.2.1992 (Annexure P/5), in fact, a memorandum/acknowledgment of family arrangement contains the recitals of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated; the decision arrived at amongst the parties as to the manner in which 7 Writ Petition No.871/2016 the parties would enjoy distinct properties of joint family in severely. The recitals do not purport to "create, declare, assign, limit or extinguish... any right, title or interest in property".
9. Vivian Bose J. in the case of Narayan Sakharam Patil Vs. Co-operative Central Bank, Malkapur, ILR (1938) Nag 604 (AIR 1938 'Nag 434), has lucidly explained the text as follows :
"It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit or extinguish....any right, title or interest' in the property which is admittedly over Rs. 100.00 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated."
And the same has been followed by various High Courts and Supreme Court including in Roshan Singh (supra).
10. Further, as is found that the document was prepared to record the settlement of family arrangement, there was adjustment of rights of the parties. It was intended to set at rest competing claims amongst various members of the family and to secure peace and amity. The compromise of apportionment was on the premise that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of the parties. This principle has been vividly laid down by the Judicial Committee in Khunni Lal Vs. Gobind Krishna Narain, (1911) 38 Ind App 87. Ameer Ali, J. delivering the judgment of the Privy Council quoted with approval the following passage from the judgment in Lalla Oudh Beharee lall vs. Ranee Mewa Koonwer (1968) 3 Agra HCR 82 at p.84 :
8 Writ Petition No.871/2016"The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement."
11. Later on, Hon'ble Supreme Court in Roshan Singh (supra) has held as under :-
"The true principle that emerges can be stated thus : If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of S.17 read with S.49 of the Registration Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das' case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary."
12. The upshot of the aforesaid discussion on facts and in law leads to conclusion that the document dt.15.2.1992 (Annexure P/5) is an acknowledgment of existence of partition and therefore is not liable for registration under Section 17(1)(b) of the Registration Act, hence, the same can be used for a collateral purpose as evidence of existing partition amongst the members of family of both the parties immediately after the death of their father in 1992 under proviso to Section 49 of the 9 Writ Petition No.871/2016 Registrtion Act.
13. As the document was already marked as exhibit on 14.7.2014 by the trial court during the course of examination-in-chief of the plaintiff Jagdish Prasad Angal, in the absence of any objection thereto, in the light of provisions under Section 36 of the Stamp Act, admissibility of the document can not be questioned at a later stage in view of judgment in Javer Chand (supra).
Consequently, Writ Petition fails and is hereby dismissed.
(Rohit Arya) Judge 24 - 11-2016 SP