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Madhya Pradesh High Court

Smt. Seema Gupta vs Smt. Radha on 15 March, 2017

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                              Writ Petition No.2797/2017




15.3.2017

.

Shri Pranay Verma, learned counsel for the petitioners. Heard on admission.

Correctness of the order-dated 7.12.2016 passed in Civil Suit No.86-A/2015 is being questioned by the petitioners-plaintiffs.

Vide impugned order, the trial Court while rejecting the application preferred by the plaintiffs under Section 17 of the Registration Act, 1908 read with Section 151 of the Code of Civil Procedure, 1908, directed that the instrument recording partition presented by the defendant shall not be admitted in evidence, but can be used for collateral purpose.

Though, it is contended on behalf of petitioner that in principle the trial Court is justified in holding that the instrument which was compulsorily registerable under Section 17 of the Registration Act having not been registered, cannot be admitted in evidence; however, while directing that it be used for collateral purpose, the trial Court exceeded in expanding the aspect of collateral purpose by including within its fold the aspect of diversion of joint property by metes and bounds.

It is the following observations made by the trial Court which the petitioner takes exception of :

^^foHkktu ds okn esa vjftLVªhd`r nLrkost ij lEikf'oZd :: 2 ::

iz;kstu vFkkZr~ gd dh i`Fkdrk] fofHkUu fgLlksa ds dCts dh izd`fr ds fy, fo'okl O;Dr fd;k tk ldrk gS] ijUrq izkFkfed iz;kstu vFkkZr~ eki vkSj lhek ds }kjk la;qDr lEifRr;ksa ds foHkktu ds fy, ugha A vLVkfEir foys[k lk{; esa lEikf'oZd iz;kstu ds fy, xzkg~; ugha gksrs gSA tc rd mUgsa ifjc) u fd;k x;k gksA iz'uk/khu nLrkost ifjc) gSA blfy, lcwr vkSj lqxarrk ds v/khu iz'uk/khu nLrkost lEikf'oZd iz;kstu ds fy, izfroknh dks fpfUg~r djkus dh Lora=rk izkIr gSA^^ The issue as to what extent an unregistered partition deed can be used for collateral purpose is no more res integra. In Roshan Singh vs Zile Singh AIR 1988 SC 881, it has been held :

16. ... It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh.P- 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh.P- 12 was a mere list of properties allotted to the shares of the parties.

In Bhaskarabhotla Padmanabhaiah vs B. Lakshmi Narayana AIR 1962 A.P. 132 (approved by the Supreme Court :: 3 ::

Writ Petition No.2797/2017

in Avinash Kumar Chauhan vs Vijay Krishna Mishra (2009)

2 SCC 532), it has been held :

"10. In the result, I agree with the learned Munsif- Magistrate that the document is 'an instrument of partition' under Section 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 status but not the terms of the partition."

Recently, in Yellapu Uma Maheshwari vs Buddha Jagadheeswararao : [Civil Appeal No.8441 of 2015] arising out of Special Leave Petition (Civil) No.12788/2014 decided on 8.10.2015 : 2015 AIR SCW 6184, it has been 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 :: 4 ::

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."

Vide impugned order, as the trial Court has declined to admit unregistered instrument of partition with a further observation that the same can be used for collateral purpose and extent to which it can be used for collateral purpose having been settled at rest by the decisions in Roshan Singh (supra) and Yellapu Uma Maheshwari (supra), the observation, an exception whereof is being taken by the petitioner, has to be read in the context of the law laid down by the Supreme Court.

The Trial Court while permitting the defendants to use the instrument in question for collateral purpose, shall bear in mind the limits set out by the Supreme Court in the cases referred to supra .

Consequently, petition is disposed of finally in above terms. No costs.

                                                (SANJAY YADAV)
vinod                                               JUDGE