"An unregistered partition deed is admissible in evidence and can be looked into for non-suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition." The above proposition is not disputed. In the above case also it is observed that the document is admissible in evidence as long as it is not used as source of title. In the present case, which is not a suit for partition but is a suit filed for declaration on the ground that the plaintiffs are the absolute owners of the property, the defendants sought to produce the disputed document to non-suit the plaintiffs and to prove their contention that they are the absolute owners of the property, as they got the same in a family partition.?
THE HON'BLE SRI JUSTICE G.V.SEETHAPATHYCivil Revision Petition No.5375 of 2009
DATED:08-02-2010
Pariti Suryakanthamma and another V
Saripalli Srinivasa Rao and another
This civil revision petition is directed against the
order dated 21-10-2009 in O.S.No.162 of 2005, on the file of the Senior Civil
Judge, Vizianagaram, wherein an unmarked document dated 07-11-1990 described as
partition list (pampakapu jabitha) was permitted to be admitted in evidence.
2. Heard the learned counsel appearing for both sides. Perused the
record.
3. The petitioners herein are the plaintiffs. They filed the suit
against the respondents/defendants for a declaration that they are the absolute
owners of the plaint schedule house and for a permanent injunction restraining
the respondents/defendants from interfering with their possession and enjoyment.
The respondents/defendants filed written statement and contested the suit.
During trial, evidence was recorded on both sides and the matter stood posted
for
arguments. At that stage, the defendants filed I.A.No.789 of 2008 to reopen the
evidence and another I.A.No.790 of 2008 to recall D.W.1 for further chief
examination. The said applications were allowed
on 31-08-2009. During the further chief-examination of D.W.1,
the defendants sought to mark an unregistered document titled
as 'pampakapu jabitha' (partition list) dated 07-11-1990 as an
exhibit. The plaintiffs opposed the same on the ground that the said document
is neither written on proper paper nor registered and the said document being a
partition deed is inadmissible in evidence. After hearing both sides regarding
the admissibility or otherwise of the said document, the learned Senior Civil
Judge, by the impugned order dated 21-10-2009, permitted the defendants to mark
the said document as an exhibit on the premise that the said document is only a
partition list and not a partition deed and, therefore, does not require any
stamp duty or registration. Aggrieved by the same, the plaintiffs preferred the
present revision.
4. According to the plaintiffs, the first plaintiff was the absolute
owner of the plaint schedule house having purchased the same under a registered
sale deed dated 16-03-1970 from Mula Narasamma, who got the same by inheritance
and as the first plaintiff had no issues, she settled the western half portion
of the plaint schedule site in favour of her brothers' sons i.e., plaintiffs 2,
3 and 4 under a registered settlement deed dated 12-08-1993 and ever since they
have been in continuous possession and enjoyment of the same. They would
further contend that the defendants have no right, title
or interest. Hence, they filed the suit for declaration of their title
and also for a permanent injunction restraining the respondents/ defendants from
interfering with their possession and enjoyment. The defendants, on the other
hand, would contend that the said property and other properties belong to the
defendants' family since over 90 years and above and they have been in
possession and enjoyment of the same and the first plaintiff had no right, title
or interest and the alleged settlement deed in favour of plaintiffs 2 to 4 is
void and not binding on the defendants.
5. The written statement is, however, silent about the alleged
partition. The written statement, does not, however specify as to how the
defendants' family became owner of the plaint schedule property. After the
evidence of the D.W.1 was sought to be reopened, the defendants produced the
disputed document, which purports to
be a partition list. The plaintiffs objected for marking the said document on
the ground that it is a partition deed and is, therefore, inadmissible and is
written on insufficiently stamped paper and is
not a registered one and is, therefore, inadmissible in evidence. The document
is described as pampakapu jabitha (partition list).
6. It is well settled that the nomenclature used for describing the
document is of no consequence and the nature and character of the document has
to be discerned only from its contents. The document is dated 07-11-1990 and is
written on stamped papers worth Rs.3/-, 3/-, 2/-, Re.1/- and 1/-. The document
states that a partition of moveable properties had already taken place 15 years
back and the moveable properties were enjoyed separately by the respective
sharers all these years. It further states that the document schedule mentioned
vacant sites were, however, kept joint but subsequently they were also
partitioned in the presence of elders and in the
said partition, 'A' schedule vacant site fell to the first party and
'B' schedule vacant site fell to the share of the second party and both parties
have taken possession of their respective shares even prior to the date of the
document. It further purports to state that the document is now executed by way
of a record of prior partition. The learned Senior Civil Judge observed that
the recitals of the documents show that the partition of the property between
the sharers had already taken place 15 years back and the same is reduced to
writing in
the form of a partition list under the disputed document. The reference to
partition 15 years back in the document is only with regard to moveables.
Though the document refers to prior partition of the vacant sites, it is not
stated as to when and how long prior to
the date of the document the said partition of the vacant sites had taken place.
The document does not also specify any reason as to why it was felt necessary to
reduce the same into writing. The document further stipulates that the partition
arrangement is made absolute and put in vogue forever and further stipulates
that neither of the parities shall ever complain nor dispute about the said
partition. The schedule of the document narrates the details of the properties
with reference to the survey numbers, extents and boundaries that fell to the
share of each of the parties. A close reading of the entire document would
disclose that though the document is captioned as a partition list, it is not a
partition list simplicitor, which merely contains list of the items of property
that fell to the share of each of the persons, but is a document whereunder
partition of the vacant sites is sought to be made. A mere recital to the
effect that partition had already taken place without specifying as to when the
said partition had taken place and the same is now reduced to writing by way of
a list, does not conceal the true nature and character of the document from
being a partition deed in view of the other recitals contained in the document.
The finding of the learned Senior Civil Judge that it is only a partition list
and not a partition deed is, therefore, unsustainable.
7. The objection for the admissibility of the document is two fold -
firstly, it is prepared on insufficiently stamped paper and secondly it is an
unregistered document drafted on total stamp paper worth Rs.10/-. Article 40 of
Schedule I-A of the Indian Stamp Act states that instrument of partition carries
the same duty as a Bottomry Bond for the amount or the market value of the
separated share or shares of the property.
8. Section 2(15) of the Indian Stamp Act defines 'instrument of
partition' as follows:-
"Instrument of Partition"' means any instrument whereby
co-owners of any property divide or agree to divide such property in severalty,
and includes also a final order for effecting a partition passed by any revenue
authority or any civil court and an award by an arbitrator directing a partition
(and a memorandum regarding past partition).
It can, therefore, be seen that a memorandum regarding past
partition is also brought within the definition of 'instrument of partition' by
A.P. (Amendment) Act 17 of 1986 w.e.f. 16-08-1986. By virtue of the said
amendment, a memorandum regarding past partition also amounts to instrument of
partition requiring same duty as a bottomry bond for the amount or the market
value of the separated share or shares. Even assuming that the disputed
document is only a memorandum of past partition, still it is required to be
drafted on stamp paper as per the market value of the share. The disputed
document is, therefore, insufficiently stamped.
9. Section 35 of the Indian Stamp Act contains a bar against
admissibility of such document in evidence and the same reads as follows:-
Instruments not duly stamped inadmissible in evidence etc.:- No instrument
chargeable with duty shall be admitted in evidence for any purpose by any person
having by law or consent of parities, 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.
In view of the bar contained in Section 35 of the Indian Stamp Act, the disputed
document becomes inadmissible in evidence for any purpose.
10. The learned counsel for respondents/defendants would contend that
even an unregistered partition deed is admissible in evidence for the purpose of
proving a collateral purpose like division of the status and nature and
character of possession and in that connection he relied on a decision in
PALLAPOTHU NAGA PRASAD AND OTHERS V. PALLAPOTHU VENKATA KRISHNA RAO AND OTHERS1,
wherein it was held as follows:-
"An unregistered partition deed is admissible in evidence and can be looked into
for non-suiting the claims for partition on the ground of prior partition, as
long as the said document is not used as the source of title to any of the
properties which erstwhile coparceners hold as a result of that partition."
The above proposition is not disputed. In the above case also it is observed
that the document is admissible in evidence as long as
it is not used as source of title. In the present case, which is not
a suit for partition but is a suit filed for declaration on the ground
that the plaintiffs are the absolute owners of the property, the defendants
sought to produce the disputed document to non-suit the plaintiffs and to prove
their contention that they are the absolute owners of the property, as they got
the same in a family partition.
The defendants, therefore, intend to rely on the disputed document to prove
their title to the suit property. The disputed document, according to the
defendants, is the evidence of their title to the property. The purpose for
which the defendants wanted to mark the disputed document in evidence is not for
a collateral purpose but for the main purpose of proving their alleged title to
the suit property. The question of admitting the disputed document in evidence
for any collateral purpose by virtue of proviso to Section 49(c) of the
Registration Act does not, therefore, arise.
11. In that connection, the learned counsel for the petitioners placed
reliance on A.KRISHNA AND ANOTHER V. A. ARJUN RAO AND ANOTHER2.
12. In RACHAKONDA RAMAKOTESWARA RAO AND OTHERS V. MANOHAR FUEL CENTRE,
NEREDUCHERLA, KHAMMAM AND ANOTHER3, this Court held as follows:
"The bar engrafted under Section 35 of the Stamp Act is an absolute bar and,
therefore, the document cannot be used for any purpose, unlike the bar contained
in Section 49 of the Indian Registration Act (for brevity 'the Registration
Act'). Under the proviso incorporated under Section 49 of the Registration Act,
the document can be looked into even if it not registered for collateral purpose
or other purpose specified inter alia in the proviso. The learned counsel
appearing for the first respondent endeavours to make a distinction between the
expression "as evidence" and the other expression 'in evidence' and contends
that although a document cannot be received as evidence, the same can be looked
into for a collateral matter for the purpose of showing the signature. This
contention cannot be acceded, having regard to the fact that it is an absolute
bar engrafted under Section 35 of the Stamp Act. Without receiving the document
in evidence, it cannot be used even for the limited purpose. For admitting the
document in evidence, it is got to be duly stamped although the purpose might be
a different one. Therefore, the document in the first instance shall have to be
received or admitted in evidence. Even for that the bar contained under Section
35 of the Stamp operates".
In the present case also, the document is both insufficiently stamped and
unregistered. The bar contained in Section 35 of the Indian Stamp Act being an
absolute one, the document even assuming to be a memorandum of past partition,
still coming within the definition of 'instrument of partition' under Section
2(15) of the Indian Stamp Act, is inadmissible in evidence for any purpose
including a collateral purpose.
13. The learned counsel for the respondents/defendants would rely on
another decision in MAJETI BASAVAMMA AND OTHERS V. MAJETI VENKATESWARA RAO AND
OTHERS4 wherein it was held that a record of family arrangement or settlement
already made by itself does not create or extinguish any rights in immoveable
property and is, therefore, not compulsorily registrable and where a document
provides for execution of separate document and registration thereof at a later
point of time, it cannot be treated
as one conferring any rights or creating interest in the property. The above
proposition is also not disputed. In the present case, the disputed document
though purports to be a record of prior partition is in effect a document
whereunder rights are created in favour of one party and extinguished for the
other party regarding the respective items and the said document does not also
contemplate execution of any regular partition deed in future. For the same
reason, the decision in AMANGENTI PRAMEELA AND ANOTHER V. P.VENKAT REDDY (DIED)
BY LRS AND OTHERS5 relied on by the learned counsel for the
respondents/defendants is not applicable to the facts of the present case.
14. In fact, the defendants sought to produce and rely on the disputed
document not for any collateral purpose but for
the main purpose of proving their alleged title to the suit property
and thereby non-suit the plaintiffs. The document is, therefore, inadmissible in
evidence both in view of the bar contained under Section 35 of Indian Stamp Act
as being insufficiently stamped, and also in view of Section 49 of the
Registration Act.
15. In the circumstances, the impugned order permitting the admission of
the document into evidence is held unsustainable and
the same is accordingly set aside.
16. In the result, the civil revision petition is allowed. There shall
be no order as to costs.
?1 2003(6) ALT 631
2 2004(3) ALD 34
3 2003(2) ALD 638
4 2006(4) ALD 260
5 2004(3) ALD 66
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