Madhya Pradesh High Court
Rajaram vs Bhaiyalal on 5 April, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 2751/2015
Rajaram
Vs.
Bhaiyalal and others
Gwalior, 05/04/2018
Shri Anuraj Saxena, learned counsel for the
petitioner.
Shri Sarvesh Sharma, learned counsel for the
respondents.
With consent of learned counsel for the parties, the matter is finally heard.
Correctness of order dated 12/03/2015 passed in Civil Suit No. 62A/2013 is called in question whereby the Trial Court declined to admit family Arrangement dated 17/12/1989 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 permanent. 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 2 bounds is compulsorily registrable and being not registered cannot be admitted in evidence.
Copy of family arrangement (ia p ukek) dated 17/12/1989 is brought on record as Annexure P/6 which recites thus:
^^ ia p ukek ge iap ku ;g rlnhd djrs gSa Jh HkS; k yky jktkjke dk tks vkilh cVokjk gq vk mles ;g rS; ik;k x;k gS fd Jh HkS; kyky losZ ua- 75 eaa s ls 4 ch?k 10 fcLok ekSd s ij ch?kk jktk jke dks rglhy }kjk djsax sA bles 1 ch?kk 10 fcLok [kqn ds dCts esa Hkh gksx hA 3 ch?kk esg jcku flag okys esa ls djsax s A tks Hkh jktk jke us gedks 3690 :i;s tks ysu k jgk FkkA mldk jftLVªh djus esa u pwdrs ysax s vkSj losZ ua- 13 dk tks jdok gSA ftldk vkt iz dj.k py jgk gS ekeys esa iSlk yxsx k mldks vk/kk&vk/kk djds vk/ks esa ls jktk jke dks jftLVªh dj nwax kA pkyw 2046 dh Qly dkV dj eSa HkS; k yky jktkjke dks 13 tks fd jdok dh uiyh dj ysax sA vk/ks jdos ij dCtk djus dk vf/kdkj nsrk gwa o dCtk NksM + nwax kA jktkjke dks djk nwax kA bu jftLVªh dk [kpkZ jktkjke cgu djs ax sA iq fy;k okys [ksr dh Hkh jftLVªh djs ax s o ftu losZ ua- 363 jdok xM+k rksQku ds lkeus dk [ks M+k dCts ds eq r kfcd losZ ua- 159 uVxj ds nksu ks a xM+k cyoar h] cy[ksM+k losZ ua- 200]222 esa ls dCts ds eq r kfcd Åij d` f"k Hkwfe dh tks jktkjke] HkS; k yky dks HkS; k yky 3 jktkjke dks jftLVªh djus ax sA jftLVªh dk [kpkZ viuk&viuk cgu djs ax sA bles a fdlh Hkh iz dkj dh Mxj ugha gksx hA vxj djs a rks >wB h le>h tk;sx hA fnukad% 17-12-89 gLrk{kj^^ 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 Rather, earlier partition is superseded.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. Zile 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 4 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 5 himself and Vivian Bose, J. In Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil, ILR (1942) Nag 73 :(AIR 1941 Nag 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 6 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 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 7 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 Provided that an unregistered document affecting immovable property and required by this Act or 8 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:
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"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 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 10 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 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 11 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 becomes duly stamped, then it would be admissible to evidence to prove the division in 12 status but not the terms of the partition."
Petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) Judge shubh* Digitally signed by SHUBHANKAR MISHRA Date: 2018.04.05 17:57:57 +05'30'