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Madhya Pradesh High Court

Smt. Halki Bai vs Smt. Leela Bai on 23 March, 2015

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                             Writ Petition No.3843/2015




23.3.2015

.

Shri Rajesh Maindiretta, learned counsel for petitioner. Heard on admission.

Plaintiff invokes jurisdiction under Article 227 of the Constitution of India and calls in question the order-dated 21.2.2015; whereby, two applications, one under Section 35 of the Indian Stamp Act, 1899 and another under Section 17 read with Section 49 of the Registration Act, 1908, were considered and decided.

While dwelling upon application under S.35 of 1899 Act, trial Court has declined to exhibit Batwaranama dated 29.7.1997 in evidence as it was not duly registered; whereas, application under S.17 read with 49 of 1908 Act was dismissed on the contention raised therein as regard to alleged Batwaranama being forged, is the subject matter of evidence.

Petitioner, however, has confined to challenge the order- dated 21.2.2015 relating to the application under Section 35 of 1899 Act.

As regard to the order declining the plaintiff from exhibiting Batwaranama, brought on record as Annexure P/1, in evidence as it has not been duly registered, is justified on a bare perusal of Batwaranama, which is in the following terms -

caVokjkukek fy[k fn;k eS jkuh ckbZ lkgw osok ykyeu ekStk eqjZbZ Fkkuk dVaxh rg- ikVu ftyk tcyiqj e-iz- ;g fd esjh ikap iqf=;ka gS I;kjh ckbZ] deykckbZ] iEeh ckbZ] gYdh ckbZ] yhyk ckbZ gS esjs }kjk lHkh iqf=;ksa dh 'kknh dj nh xbZ gS esjh ekStk eqjZbZ esa tehu ,oa rhu edku gS ftldk caVokjk es vius thoudky esa :: 2 ::

lnHkkoiwoZd gks'k gokl ds lkFk djrh gwa eqjZbZ esa fLFkr eksugkokjh Mfg;ka ftldk [k-ua- 279 jdok 1-06 gs- gS NksVh yMdh yhykckbZ lkgw dks nsrh gwa ,oa ,d iDdk edku nsrh gwa 'ks"k tehu ekStk eqjZbZ xfu;kjh dh pkjks iqf=;ksa dks nsrh gwa ftldk uke fVfdVokjh [ksr ftldk [kljk 458 jdok 2-73 gs- gS ,oa ekStk xfu;kjh okyh Mfg;k ftldk [k-ua- 57 jdok 09-20 gs- gS pkjksa iqf=;ksa dks nsrh gwa ,oa nks edku pkjks iqf=;ksa dks nsrh gwa tc rd esjk thou gS rc rd lHkh tehu esa eSa [ksrh d:xh A esjs ejus ds ckn lHkh iqf=;ksa vius vius caVokjk ds vuqlkj [ksrh djs 'kkldh; nLrkostksa essa viuk viuk uke ntZ djok;s eSa jkuhs ckbZ lkgw vius lxs lacaf/k;ksa dh mifLFkfr o xzke eqjbZ ds iaapks ds le{k caVokjk ukek fy[k fn;k mDr caVokjk lnHkkoiwoZd bZekunkjh iw.kZ gks'k gokl cxSj nckc ng'kr ds fd;k x;k gS tks lgh ,oa lR; gS eSa xokgksa ds le{k vius vaxwBs dk fu'kku yxkdj caVokjk ukek izekf.kr djrh gwa tks oDr ij dke vkosA Evidently, the partition is in metes and bounds and the instrument is not a recital of an earlier partition. Since the Batwaranama conveys right in immovable property, it is compulsory registrable under Section 17 of the Registration Act, 1908 as the same is valued more than Rs.100/-. Section 17 of the 1908 Act stipulates -

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 of have been executed on or after the date on which, Act No. XVI of is 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 (3 of 1877), or this Act came or comes into force, namely:-

(a) instruments of gift of immovable property;

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(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;

..."

It has been held in Roshan Singh v. Zile Singh AIR 1988 SC 881 -

"16. In the present case, admittedly, there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh.P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See :

Rajangam Ayyar v. Rajangam Ayyar, (1923) 69 Ind Cas 123 : (AIR 1922 PC 266) and Nani Bai v. Gita Bai, AIR 1958 SC 706. ."

In view whereof, the impugned order does not suffer from jurisdictional error, as would warrant an interference in a petition under Article 227 of the Constitution.

Consequently, since no relief can be granted to the petitioner, petition fails and is dismissed. No costs.

                                                   (SANJAY YADAV)
vinod                                                  JUDGE