Present: Ms. Samiya Singh Advocate Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1130722
CourtPunjab and Haryana High Court
Decided OnFeb-11-2014
AppellantPresent: Ms. Samiya Singh Advocate
RespondentState of Haryana and Others
Excerpt:
c.w.p.no.19453 of 2010 [ 1 ].in the high court of punjab & haryana, chandigarh c.w.p.no.19453 of 2010 date of decision: 11.2.2014 parmod kumar and others ..............................petitioners versus state of haryana and others .................respondents coram: hon'ble ms.justice ritu bahri 1.to be referred to the reporters or not?. 2. whether the judgment should be reported in the digest?. present: ms.samiya singh, advocate for the petitioners.mr.c.s.bakshi, addl. a.g.haryana..ritu bahri, j. challenge in this petition is to the order dated 27.7.2010 (annexure p4) passed by the commissioner, hisar division (comp-jind) whereby the case has been remanded back to the collector-cum-sub divisional officer (c) to ascertain the stamp duty on the instrument of partition which was got registered by the petitioners being co.sharers.kaur rupinder the petitioners executed a memorandum of 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 2 ].partition on 22.3.2005 (annexure p1).after giving details of the property in paragraphs 1, 2, 3 and 4 it is stated that about three months ago the parties with mutual consent and with the help of relatives have orally divided the aforesaid four items of the property among themselves. vijay kumar had got property no.1, parmod kumar got property no.2, vinod kumar got property no.3 and sudhir kumar got property no.4. all the parties will be owners in possession of their respective items.the memorandum had been executed to give a written shape to oral and mutual division/partition taken place between the parties. this was to be treated as a proof to be used at a relevant time. this memorandum of partition was presented for registration before the sub- registrar, narwana. the matter was referred by the sub- registrar to the collector for determining the stamp duty in terms of the provisions of the indian stamp act, 1899 (hereinafter referred to as the 'act').vide order dated 23.12.2009 (annexure p2) the collector released the said wasika by treating it as memorandum of partition of a joint property between four real brothers.there was no money transaction between them. it was held that wasika in the dispute did not fall within the provisions of section 2(15) of the act so as to mean “instrument of partition”.on an appeal made by the sub registrar, narwana, the commissioner hisar division (comp-jind) vide kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 3 ].order dated 27.7.2010 (annexure p4) accepted the appeal and remanded the case back to the collector-cum-sub- divisional officer (c) directing him to treat annexure p1 dated 22.3.2005 as instrument of partition and determine the stamp duty accordingly. counsel for the petitioners has sought quashing of this order on the ground that as per the language of annexure p1 dated 22.3.2005 it was a memorandum of partition. as per annexure p1 joint properties between the four brothers had been partitioned three months back orally. the memorandum of partition had been executed to give shape to an oral and mutual partition which could be used as a proof in future at a relevant time. there was no money transaction. the commissioner had gone wrong in treating this document as instrument of partition under section 2(15) of the act. on the other hand, he has referred to the definition of “instrument”. as given in section 2(14) of the act which reads as under:- “section 2(14) “instrument”. includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record.”. as per the definition of the “instrument”. the present memorandum of partition (annexure p1) is covered under the definition “instrument”. under section 2(14) of the kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 4 ].act. this document includes the oral partition effected between the four real brothers who were co-sharers in the properties which had been mutually transferred between them three months ago. the possession of title had already been so decided between the real brothers by oral partition. had this document (annexure p1) been an “instrument of partition”. details of the date of possession to be taken or given would have been mentioned. on the other hand, counsel for the state has argued that in the absence of any clear date mentioned in annexure p1 the document cannot be treated as memorandum of partition. there is no reference as to when the respective possessions of the property which was divided between the four brothers was given. in the absence of any date of partition/date of possession being taken the recital-annexure p1 shall come under the definition of “instrument of partition”. under section 2(15) of the act. therefore, the order dated 27.7.2010 (annexure p4) remanding back the case to the collector-sum-sub-divisional officer (c) does not require any interference. heard counsel for the parties. the question for consideration in this petition is “whether annexure p1, which as per the petitioners is a memorandum of partition, falls under the definition of “instrument”. under section 2(14) of the act or under the kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 5 ].definition of “instrument of partition”. under section 2(15) of the act?. both the definitions are reproduced hereunder:- “section 2(14) “instrument”. includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record. section 2(15) “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.”. the above two definitions came up for consideration before the allahabad bench in siya ram and others v. state of u.p.1972 air (allahabad) 518 wherein a document had been executed on 4.9.1969 in which there was a recital that parties belonging to the same family were owners of certain properties mentioned in the deed. a partition had been effected between them in march 1969. thereafter, a map had been prepared showing the shares of the parties in the property. the document thereafter was prepared to recite that part of the house which contained a passage, angan and well which had not been partitioned and had been left joint. a document had been executed for kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 6 ].avoiding future dispute between the parties and for the purpose that it may serve as evidence of partition effected earlier. after putting the stamp duty of `2.25 the document was presented before the collector for registration. the collector referred it to the board under section 56(2) of the stamp act. the board held that this was an instrument of partition as defined in sub clause 15 of section 2 of the act and was chargeable to stamp duty under article 45 schedule 1-b thereof. the allahabad high court referred to an earlier full bench decision in bhagwana v. gulab kuer air1942allahabad 220. for an instrument to come under the definition of section 2(14) the document should be one which is executed by the co-owners and the partition must be effected by that instrument. if the partition had already taken place between the parties and they had entered into possession of their shares, they ceased to be co-owners of the properties over which they had taken over separate possession. therefore, for interpreting a document to be “instrument of partition”. under section 2(15) of the act, recours.to definition of “instrument”. as given in section 2 (14) of the act would be erroneous. hence, the allahabad full bench came to a conclusion that once in the document which was sought to be registered the fact that earlier partition had taken place between the legal heirs and possession had been taken in kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 7 ].accordance with law with oral agreement the registration of that document recording in writing with effect would not come within the definition of “instrument of partition”. as given in section 2(15) of the act. as per memorandum of partition between the parties dated 22.3.2005 (annexure p1) details of all the properties which have been divided and taken possession has been given. it is specifically stated that three months back with mutual consent with the help of relations the division has taken place and the parties have taken possession of their respective items.as per the ratio of the judgment in siya ram and others v. state of u.p.1972 air (allahabad) 518 once the possession was taken by all the co-sharers they seized to be co-owners of the properties. the fact that no date and time has been mentioned will not render this memorandum of partition as instrument of partition as per section 2(15) of the stamp act. the memorandum of partition (annexure p1) is hence a document which acknowledges the partition between the co.sharers.as per the ratio of the judgment in siya ram's case (supra).the order dated 27.7.2010 passed by the commissioner hisar division (annexure p4) is set aside and the sub registrar is directed register the memorandum of partition and no stamp duty is liable to be affixed on the said kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh c.w.p.no.19453 of 2010 [ 8 ].wasika and the notice issued be treated as withdrawn. the writ petition is allowed. ( ritu bahri ) judge112.2014 rupi kaur rupinder 2014.03.04 15:01 i attest to the accuracy and integrity of this document chandigarh
Judgment:

C.W.P.No.19453 of 2010 [ 1 ].IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P.No.19453 of 2010 Date of Decision: 11.2.2014 Parmod Kumar and others ..............................Petitioners Versus State of Haryana and others .................Respondents Coram: Hon'ble Ms.Justice Ritu Bahri 1.To be referred to the Reporters or not?.

2.

Whether the judgment should be reported in the Digest?.

Present: Ms.Samiya Singh, Advocate for the petitioneRs.Mr.C.S.Bakshi, Addl.

A.G.Haryana..RITU BAHRI, J.

Challenge in this petition is to the order dated 27.7.2010 (Annexure P4) passed by the Commissioner, Hisar Division (Comp-Jind) whereby the case has been remanded back to the Collector-cum-Sub Divisional Officer (C) to ascertain the stamp duty on the Instrument of Partition which was got registered by the petitioners being Co.shareRs.Kaur Rupinder The petitioners executed a Memorandum of 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 2 ].Partition on 22.3.2005 (Annexure P1).After giving details of the property in paragraphs 1, 2, 3 and 4 it is stated that about three months ago the parties with mutual consent and with the help of relatives have orally divided the aforesaid four items of the property among themselves.

Vijay Kumar had got property No.1, Parmod Kumar got property No.2, Vinod Kumar got property No.3 and Sudhir Kumar got property No.4.

All the parties will be owners in possession of their respective iteMs.The Memorandum had been executed to give a written shape to oral and mutual division/partition taken place between the parties.

This was to be treated as a proof to be used at a relevant time.

This Memorandum of Partition was presented for registration before the Sub- Registrar, Narwana.

The matter was referred by the Sub- Registrar to the Collector for determining the stamp duty in terms of the provisions of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act').Vide order dated 23.12.2009 (Annexure P2) the Collector released the said Wasika by treating it as Memorandum of Partition of a joint property between four real brotheRs.There was no money transaction between them.

It was held that Wasika in the dispute did not fall within the provisions of Section 2(15) of the Act so as to mean “Instrument of Partition”.On an appeal made by the Sub Registrar, Narwana, the Commissioner Hisar Division (Comp-Jind) vide Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 3 ].order dated 27.7.2010 (Annexure P4) accepted the appeal and remanded the case back to the Collector-cum-Sub- Divisional Officer (C) directing him to treat Annexure P1 dated 22.3.2005 as Instrument of Partition and determine the stamp duty accordingly.

Counsel for the petitioners has sought quashing of this order on the ground that as per the language of Annexure P1 dated 22.3.2005 it was a Memorandum of Partition.

As per Annexure P1 joint properties between the four brothers had been partitioned three months back orally.

The Memorandum of Partition had been executed to give shape to an oral and mutual partition which could be used as a proof in future at a relevant time.

There was no money transaction.

The Commissioner had gone wrong in treating this document as Instrument of Partition under Section 2(15) of the Act.

On the other hand, he has referred to the definition of “Instrument”.

as given in Section 2(14) of the Act which reads as under:- “Section 2(14) “Instrument”.

includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record.”

.

As per the definition of the “Instrument”.

the present Memorandum of Partition (Annexure P1) is covered under the definition “Instrument”.

under Section 2(14) of the Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 4 ].Act.

This document includes the oral partition effected between the four real brothers who were co-sharers in the properties which had been mutually transferred between them three months ago.

The possession of title had already been so decided between the real brothers by oral partition.

Had this document (Annexure P1) been an “Instrument of Partition”.

details of the date of possession to be taken or given would have been mentioned.

On the other hand, counsel for the State has argued that in the absence of any clear date mentioned in Annexure P1 the document cannot be treated as Memorandum of Partition.

There is no reference as to when the respective possessions of the property which was divided between the four brothers was given.

In the absence of any date of partition/date of possession being taken the recital-Annexure P1 shall come under the definition of “Instrument of Partition”.

under Section 2(15) of the Act.

Therefore, the order dated 27.7.2010 (Annexure P4) remanding back the case to the Collector-sum-Sub-Divisional Officer (C) does not require any interference.

Heard counsel for the parties.

The question for consideration in this petition is “Whether Annexure P1, which as per the petitioners is a Memorandum of Partition, falls under the definition of “Instrument”.

under Section 2(14) of the Act or under the Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 5 ].definition of “Instrument of Partition”.

under Section 2(15) of the Act?.

Both the definitions are reproduced hereunder:- “Section 2(14) “Instrument”.

includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record.

Section 2(15) “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.”

.

The above two definitions came up for consideration before the Allahabad Bench in Siya Ram and others v.

State of U.P.1972 AIR (Allahabad) 518 wherein a document had been executed on 4.9.1969 in which there was a recital that parties belonging to the same family were owners of certain properties mentioned in the deed.

A partition had been effected between them in March 1969.

Thereafter, a map had been prepared showing the shares of the parties in the property.

The document thereafter was prepared to recite that part of the house which contained a passage, Angan and Well which had not been partitioned and had been left joint.

A document had been executed for Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 6 ].avoiding future dispute between the parties and for the purpose that it may serve as evidence of partition effected earlier.

After putting the stamp duty of `2.25 the document was presented before the Collector for registration.

The Collector referred it to the Board under Section 56(2) of the Stamp Act.

The Board held that this was an Instrument of Partition as defined in sub clause 15 of Section 2 of the Act and was chargeable to stamp duty under Article 45 Schedule 1-B thereof.

The Allahabad High Court referred to an earlier Full Bench decision in Bhagwana v.

Gulab Kuer AIR1942Allahabad 220.

For an Instrument to come under the definition of Section 2(14) the document should be one which is executed by the co-owners and the partition must be effected by that Instrument.

If the partition had already taken place between the parties and they had entered into possession of their shares, they ceased to be co-owners of the properties over which they had taken over separate possession.

Therefore, for interpreting a document to be “Instrument of Partition”.

under Section 2(15) of the Act, recouRs.to definition of “Instrument”.

as given in Section 2 (14) of the Act would be erroneous.

Hence, the Allahabad Full Bench came to a conclusion that once in the document which was sought to be registered the fact that earlier partition had taken place between the legal heirs and possession had been taken in Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 7 ].accordance with law with oral agreement the registration of that document recording in writing with effect would not come within the definition of “Instrument of Partition”.

as given in Section 2(15) of the Act.

As per Memorandum of Partition between the parties dated 22.3.2005 (Annexure P1) details of all the properties which have been divided and taken possession has been given.

It is specifically stated that three months back with mutual consent with the help of relations the division has taken place and the parties have taken possession of their respective iteMs.As per the ratio of the judgment in Siya Ram and others v.

State of U.P.1972 AIR (Allahabad) 518 once the possession was taken by all the co-sharers they seized to be co-owners of the properties.

The fact that no date and time has been mentioned will not render this Memorandum of Partition as Instrument of Partition as per Section 2(15) of the Stamp Act.

The Memorandum of Partition (Annexure P1) is hence a document which acknowledges the partition between the Co.shareRs.As per the ratio of the judgment in Siya Ram's case (supra).the order dated 27.7.2010 passed by the Commissioner Hisar Division (Annexure P4) is set aside and the Sub Registrar is directed register the Memorandum of Partition and no stamp duty is liable to be affixed on the said Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.19453 of 2010 [ 8 ].Wasika and the notice issued be treated as withdrawn.

The writ petition is allowed.

( RITU BAHRI ) JUDGE112.2014 rupi Kaur Rupinder 2014.03.04 15:01 I attest to the accuracy and integrity of this document Chandigarh