K. Bhaskara Rama Murthy and ors. Vs. K. Satyavathi Devi and ors. - Court Judgment

Excerpt:
civil - evidentiary value - section 35 of stamp act, 1899 - plaintiff filed suit for partition and separate possession relying on document of partition list - defendant objected admissibility of evidence of said document as it was not duly stamped and registered - contents of document indicate that partition was effected through said document - not to be said that partition effected long prior to said document simply because there is mention that property has been divided - said document observed to be partition deed and required to be duly stamped in order to be admissible in evidence - but such document may be admitted as collateral purpose for division of status. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l......order1. this revision petition is filed by defendants nos. 1 to 3 in o.s. no. 282/ 1995 on the file of the i additional senior civil judge, kakinada, questioning the order of the lower court dated 25.10.2002.2. the plaintiffs filed the suit for partition and separate possession against the defendants, and the plaintiffs wanted to rely on a document, which was marked as ex.a.9. the plaintiffs described the said document as a partition list. during the evidence of p.w.1 the defendants objected for marking of the same contending that it is a partition deed and as it is not duly stamped and registered, it cannot be admitted in evidence. the lower court while recording the evidence of p.w.1 made the following observations:'the recitals in the document show that it is a partition list. even.....

Judgment:
ORDER

1. This revision petition is filed by Defendants Nos. 1 to 3 in O.S. No. 282/ 1995 on the file of the I Additional Senior Civil Judge, Kakinada, questioning the order of the lower Court dated 25.10.2002.

2. The plaintiffs filed the suit for partition and separate possession against the defendants, and the plaintiffs wanted to rely on a document, which was marked as Ex.A.9. The plaintiffs described the said document as a partition list. During the evidence of P.W.1 the defendants objected for marking of the same contending that it is a partition deed and as it is not duly stamped and registered, it cannot be admitted in evidence. The lower Court while recording the evidence of P.W.1 made the following observations:

'The recitals in the document show that it is a partition list. Even prior to 29.12.1971, they have already partitioned their joint family properties and on 29.12.1971 they have executed the above document to show their previous partition and the shares fell to the respective parties. It is mentioned in the document that the parties to the document have to enjoy their respective shares with absolute rights. Admittedly, it is a partition list and it shows the previous partition between the parties to the document and they are in possession and enjoyment of the respective shares. The said document is acknowledging the past and oral partition and reciting that the parties are enjoying their respective shares. Since the document is not creating any right, title or interest in immovable property for the first time, it is not compulsorily registerable and it has to be received in evidence for collateral purpose. The said document was executed in the year 1971. The amendment to Stamp Act came into force on 16.8.1986, and from that day onwards even a partition list has to be registered and prior to it, there is no necessity for registration of partition list. Hence, the objection raised by the defendants' Counsel is overruled.'

3. In the light of the observations made by the lower Court, it is essential to extract the relevant portion of the document for appreciation by this Court.

4. The title of the document is described as 'partition deed' for four shares, which was executed on 29.12.1971. It was described as a partition deed executed between Srirama Narasimga Rao, Suryanarayana Murthy, Bhaskara Murthy and Jayalakshmamma.

The relevant portion of the document reads as follows:

While partitioning the remaining property, 'C' marked property was allotted to third party, 'D' marked property was allotted to first party, 'F' marked property was allotted to second party, 'G' marked property was allotted to fourth party to the document. It was agreed that 'B' marked property shall be enjoyed as a joint lane by the third party and his wife Nagakrishnavenamma. After leaving 'E' marked property as a joint lane, the respective parties are enjoying their respective shares after taking possession, hence the partition deed.

5. After describing the details of the properties through schedules, they have mentioned at the end that they executed the partition deed with the consent of all the parties.

6. The said document cannot be treated as a partition list, if the contents do not lead to a conclusion that there was earlier partition. The wording used in the said document clearly indicates that they effected partition between the parties through the said deed. Had they mentioned that the partition was effected on a particular earlier date, it would have indicated that they have already partitioned the property prior to the execution of the document. But the contents of the document indicate that the partition was effected through the said document. Simply because there is a mention that the property has been divided, would not in the light, of other contents indicate that the partition was effected long prior to the said document. Since the document was executed in the year 1971, it is liable for stamp duty at the rate prevailing as on that date and registration.

7. The learned Counsel for the revision petitioner submitted that since the document in question is a compulsorily registerable document, and not registered, it is not admissible in evidence, therefore, it cannot be marked on behalf of the respondent-plaintiff. But, the learned Counsel for the respondent submitted that the document though not registered can be marked for collateral purpose, therefore, the contention of the revision petitioner that it cannot be marked is not sustainable. In the light of the rival contentions, I wish to refer to the relevant case law covering this field.

8. In Nagamma v. Madala, : AIR1954Mad165 , a learned Single Judge of the Madras High Court while dealing with the proviso to Section 49 of the Registration Act, 1908 held that an unregistered deed of partition is inadmissible in evidence to prove the partition, but nevertheless can be relied on as proof of division of status.

9. In B. Padmanabhaiah v. B. Lakshminarayana, AIR 1962 AP 132, a learned Single Judge of this Court while referring to Section 35 of the Stamp Act, 1899 held that an unstamped instrument of partition is not at all admissible in evidence even for a collateral purpose. But, an unregistered instrument of partition which was originally unstamped, if and when it becomes duly stamped, is admissible in evidence, even though it continues to be unregistered, for proving the division in status and not the actual terms of the partition.

10. In K. Kanna Reddy v. K. Venkata Reddy, : AIR1965AP274 (FB), a Full Bench of this Court held as follows:

An unregistered partition deed cannot be received as evidence of the separate allotment of and declaration of exclusive right and title to specific items of properties in favour of the plaintiff or the defendant. But the existence as a fact of a prior partition will non-suit a plaintiff who comes to Court with a suit for fresh partition. The circumstances that the earlier partition was evidenced by an unregistered partition deed will not render proof of the factum of that partition by either evidence inadmissible under Section 91 of Evidence Act, because this section excludes oral evidence only in proof of the terms and not of the existence as a fact of a contract, grant or other disposition of property,

11. In Venkatasubbaiah v. Subbamma, 1956 Andhra 195, the Andhra High Court held that an unregistered deed of partition filed in Court can be used to see if there was a division in status, but it is inadmissible for proving division by metes and bounds.

12. The above decisions of various High Courts make the position clear that an unregistered partition deed duly stamped can-be used for proof of division, but not partition of specific items of properties by metes and bounds.

13. The learned Counsel for the respondent drew the attention of the Court to a judgment of this Court in Gowramma v. Yella Reddy Chenga Reddy and Ors., 1965 (1) An.WR 429, wherein, a Division Bench of this Court held that 'where there is a conflict between two clauses in a deed and are irreconcilable, the earlier clause overrides the latter.'

14. Since the wording used in the document is clearly indicating that it is a partition deed, this decision is not helpful to the respondent.

15. The filing of the suit for partition and recovery of possession of the plaintiff's snare is a clear indication that he is not relying on the disputed document to prove the partition of the parties by metes and bounds. It is not known from the pleadings on which aspect the plaintiff sought to mark the document, but it can be used only for collateral purpose of division of status, therefore, it can be marked for the purpose Other than the purpose of proving the partition.

16. The lower Court treated the document as a partition list and held that there is no necessity of payment of stamp duty and penalty and registration, but, in the light of the above findings and legal position, the order is liable to be set aside.

17. After carefully going through the contents of the document, I am of the view that it is a partition deed through which the partition has been affected between the parties and the rights of the parties have been worked out Since the document is on a four rupees non-judicial stamp paper, it requires proper stamp duty and as the required stamp duty was not paid at the time of execution of the document, it is liable for penalty also,

18. In the result, the revision petition is allowed in part. The order of the lower Court dated 25-10-2002 is set aside. Ex.B1-document shall be treated as a partition deed. The lower Court is directed to impound the document ordering collection of stamp duty and penalty according to law. After payment of stamp duty and penalty, the plaintiff is at liberty to mark the document for the purpose of providing division of status and not for proof of partition by metes and bounds. No order as to costs.