Madhya Pradesh High Court
Dineshchandra S vs Rameshchandra on 9 May, 2017
1
Writ Petition No. 18804/2013
9.5.2017
Shri K.S. Rajput, learned counsel with Shri
Sandeep Kachhi, learned counsel for the petitioner.
Shri Ayush Choubey, learned counsel for
respondent No. 1.
With consent of learned counsel for the parties, the matter is finally heard.
Correctness of order dated 24.6.2013 passed in Civil Suit No. 22-A/2012 is called in question whereby the Trial Court declined to admit family Arrangement dated 18.11.1999 filed by petitioner/plaintiff being not registered under Section 17 (1) (b) of the Registration Act, 1908.
The suit at the instance of the petitioner/plaintiff is for declaration of title, partition and possession. Plaintiff sought leave of the Court to prove the partition deed in question which were being objected that since it records the partition in metes and bounds is compulsorily registrable and being not registered cannot be admitted in evidence.
Copy of family arrangement (ikfjokfjd O;oLFkk i=) dated 18.11.1999 is brought on record as Annexure P/5. The opening sentence whereof is as under:
2^^fnus ' k dq e kj cYn txUukFk th njth ukens o lkfdu eluxka o rg0 gjnk dks fy[kk ns u s okys Jh %& txUukFk oYn f'kojke th njth ukens o lkfdu eluxka o rg0 gjnk us tks fd rq e es j s iq = gks vkdk rq e dks eS a ikfjokfjd fooLFkk ds vuq l kj es j h tehu Hkw e h Lokeh [k0u0 13@4 jdok 10 ,dM 62 fMley xz k e eluxkoa g0u0 42 rg0 gjnk ftyk gjnk dh eS a viuh bPNk vuq l kj ikfjokfjd fooLFkk es a rq e dks a ns r k gW w vkS j rq E gkjk uke njt djk ys u k eq > s dks b Z vkifRr ugha gks x h mDr la i fRr rq e dks a thou fuokZ g ds fy, ns r k gwW bl la i fRRk ij rq e vkS j ^ rq E gkjs ckjlku gh ekfyd dkfct jgs a x s gekjk uke [kkfjt djkdj vkidk uke njt djk ys u k fdlh dks dks b Z vkifRRk ugha gks x h oS l s Hkh rq e gh mDRk la i fRRk ij dkLr djrs pys vk jgs gks vkS j ljdkjh vfHkys [ kks a es a bl bdjkjukek ikfjokfjd fooLFkk ds tfj;s rq E gkjk uke njt djk ys u k lc ikfjokfjd fooLFkk dk bdjkjukek fy[kk nh;k lks lgh la i fRr dgha jgu Ok; cs a d rdkoh djtk >xM+ k es a ugha gS lkQ o 'kq ) gS bdjkjukek fy[kk nh;k lks lgh fnuka d 18&11&1999 gjnk^^ The recitation leaves no iota of doubt that the partition is in presentie and not in the form of memorandum of previous partition. Rather, earlier partition is superseded. The Trial Court was justified in holding that the partition is in metes and bounds.
The findings by the Trial Court cannot be faulted with. As the memorandum was compulsorily registrable and being not registered it cannot be admitted in evidence. For an authority please see Roshan Singh and others v.
3Zile Singh and others (AIR 1988 SC 881) wherein it is held:
10. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604. (AIR 1938 Nag. 434). Speaking for himself and Sir Gilbert Stone, CJ. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59 Ind. App.
130: 1932 PC 55 and Subramanian v. Lutchman (1923) 50 Ind App. 177 : 9AIR 1923 PC 50) and expressed 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 of extinguish ..... any right, title or interest' in the property which is admittedly over Rs. 100 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."
Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. In Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil, ILR (1942) Nag 73 :(AIR 1941 Nag 4
209) reiterated the same principle. See also : other cases in Mulla's Registration Act at pp.56-57." In K.G. Shivalingappa (D) by L.Rs and others v. G.S. Eswarappa and others (AIR 2004 SC 4130) it is held:
13. In Nani Bai v. Gita Bai Kom Rama Gunge (AIR 1958 SC 706), it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it. would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1) (b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Section 17(1) (b) of the Indian Registration Act. This decision was followed in Shiromani and Ors. v. Hem Kumar and Ors., AIR 1968 SC 1299 and Roshan Singh v. Zile Singh, AIR 1988 SC 881. In Sk.
Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1996 (6) SCC 373 , after analysing the judgments, referred to above, this Court observed:
"Partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge and it has been held that though a partition may be effected orally, if the parties reduce 5 the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would all within the mischief of Section 17(1)(b) of the Registration Act under which the document is compulsorily registerable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar and Roshan Singh v. Zile singh, (AIR 1988 SC 881)."
Thus, the partition deed in question being not registered is not admissible in evidence.
The question next is whether it can be used for collateral purpose.
Section 49 of the Registration Act, 1908 envisages:
"49. 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) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 6 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.
Presently, the instrument in question since witnesses the relinquishment of share in the property it attracts stamp duty. The instrument in its present form is not stamped. Section 35 of the Stamp Act, 1899 mandates that 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. Dwelling on the similar issue it has been held by the Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 532:
"25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be 7 brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
In that case since the instrument in question in present case is also not stamped it cannot be admitted even for collateral purpose. However, as recently held by the Supreme Court in Yellapu Uma Maheshwari and another v. Buddha Jagadheeswararao and others [Civil Appeal No. 8441 of 2015] arising out of Special Leave Petition (Civil) No. 12788/2014 decided on 8.10.2015, it is held:
"18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want 8 to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."
In view whereof while upholding the impugned order the petition is disposed of with a direction that if the petitioner/plaintiff want to mark these documents for collateral purpose it is open for him to pay the stamp duty together with penalty and get the document impounded and the Trial Court would be at liberty to mark it as exhibit. As to what extent the instrument can be looked into for collateral purpose the Trial Court would be guided by the decision in Bhaskarabhotla Padmanabhaiah and others v. B. Lakshminarayana and others (AIR 1962 AP 132); findings in paragraph 10 whereof have been approved of by the Supreme Court in Avinash Kumar Chaouhan (supra). The observations in Bhaskarabhotla Padmanabhaiah and others (supra) are in following terms:
"10. In the result, I agree with the learned Munsif- Magistrate that the document is `an instrument of partition' under Sec. 2(15) of the Indian Stamp Act and it is not admissible in evidence because it is not stamped. But, I further held that if the document 9 becomes duly stamped, then it would be admissible to evidence to prove the division in status but not the terms of the partition."
Petition is disposed of finally in above terms. No costs.
(SANJAY YADAV) JUDGE Vivek Tripathi