D. Trimurthulu v. Dr. G. Suryanath Goud

HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5391 of 2010 ORDER: This revision petition is directed against the order dated

28.09.2010 in IA No.2076 of 2009 in OS No.2804 of 2007 on the file of VIII Additional Senior Civil Judge, L B Nagar, R. R. district, wherein the said application filed by the petitioner herein-D.3 under Order XIII Rule 3 CPC seeking rejection of the document dated 13.07.1988, was dismissed.

2. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. Perused the record.

3. The first respondent herein filed suit against the respondents 2 and 3 herein and the petitioner for recovery of possession and mandatory injunction. The petitioner filed written statement contesting the suit. During the trial, the first respondent-plaintiff sought to rely upon the memorandum of oral partition dated 13.07.1988. The petitioner-3rd defendant raised objection for its admissibility on the ground of want of stamp duty and registration. According to the petitioner-3rd defendant, the said document seeks to effect partition and therefore, requires registration. The first respondent on the other hand would contend that the document is merely a record of earlier partition and it is in the nature of partition and therefore, does not require any registration. Learned Senior Civil Judge relied upon the decision in ‘Darshan Singh Vs Samsher Singh’ [AIR 1988 SC 881] and rejected the objection raised by the petitioner-3rd defendant holding that the document merely records factum of earlier oral partition and it is only a partition list, but not a partition deed. Aggrieved by the same, the petitioner-3rd defendant filed the present revision.

4. Learned counsel for the petitioner would contend that subsequent to amendment to section 2(15) of Indian Stamp Act as per A.P. (Amendment) Act 17 of 1986, which came into force from

16.08.1986, the memorandum of past partition is also included in the definition of the expression ‘instrument of partition’ and the trail court failed to consider the same. He further contended that previously there was oral partition, where under various plots were divided among the four sharers and that subsequently, one of the brothers raised a dispute and the same was also settled by compromise in conformity of the earlier partition and therefore, it was felt necessary to reduce the terms of the said oral partition into writing so that there is no dispute again in future. The document thus proceeds to narrate even various plots that fell to the share of each of the four sharers and the land which was agreed to be kept joint.

5. The disputed document does not seek to effect any partition by creating rights in the plots allotted to each of the sharer but purports to reduce into writing the terms of oral partition already effected between the parties. However, by virtue of amended Act, in the expression ‘instrument of partition’ under section 2(15) of the Indian Stamp Act, the memorandum regarding past partition is also included therein. The said amendment Act, which was introduced by way of A.P. (Amendment) Act 17 of 1986, came into force from 16.08.1986. The document in question being dated 13.07.1988, was therefore executed subsequent to coming into force of the amended provisions of the Act. Even if the document is construed to be only a memorandum of earlier partition, the same becomes liable for payment of stamp duty as an instrument of partition.

6. In ‘Pariti Suryakanthamma v. Saripalli Srinivas Rao[1]’, this court held as follows: “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. 16.8.1986. 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. Section 35 of the Indian Stamp Act contains a bar against admissibility of such document in evidence and the same reads follows: Instruments not duly stamped inadmissible 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.” It was further held as follows: “…….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.”

7. In the present case also, the document having been executed on 13.07.1988 which is subsequent to Amendment to section 2(15) of the Act, even if it is considered to be a memorandum of earlier partition, the same has to be treated as an instrument of partition and in the absence of payment of stamp duty and penalty, the same is inadmissible in evidence. The impugned order is therefore held unsustainable and the same is accordingly set aside. Consequently, the objection raised by the petitioner-3rd defendant over admissibility of the document dated 13.07.1988 in evidence is sustained. The learned counsel for the first respondent-plaintiff seeks liberty to pay the necessary stamp duty and penalty. The liberty sought for is granted.

8. In the result, the civil revision petition is allowed subject to the liberty to the first respondent-plaintiff as stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 08.08.2011 Note: Furnish CC of the order within three days. (BO) [1] 2010(2) ALD 847