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2004 DIGILAW 974 (MAD)

K. M. Krishnan & Another v. K. Chockalingam

2004-07-28

M.THANIKACHALAM

body2004
Judgment :- The defendants in O.S.No.5/2001 on the file of the Additional District and Sessions Judge, Fast Track Court at Pudukottai, aggrieved by the order of the trial Court, admitting a document (Ex.A1) in evidence, have questioned the same in this revision. 2. The respondent in this revision petition as plaintiff approached the trial Court, for partition and separate possession of his share in the suit properties, impleading the revision petitioners as defendants. According to respondent/plaintiff, the properties described in the plaint originally belonged to them as ancestral properties. The parties being the close relatives, claimed inheritance over the properties. According to the plaintiff/respondent, he is entitled to 1/3 share and therefore, he prayed for a preliminary decree for partition. In the plaint, the plaintiff has relied upon a document dated 21.9.1996, to prove his interest in the suit properties, labeling the same as partition agreement. 3. The revision petitioners as defendants opposed the claim of the plaintiff, repudiating all the allegations in the plaint, challenging in a way the document dated 21.9.1996. In paragraph-15 of the written statement, it is said, in order to purchase peace on 21.9.1996, all the parties to the suit went through a Panchayat subject to confirmation and compliance of various conditions. In paragraph-16, the defendants have explained, how the document dated 21.9.1996 came into possession of the plaintiff. Further, in paragraph-19, it is said "... it is clear that none of the parties have acted upon the said panchayat agreement dated 21.9.1996 to partition the suit property item No.1 alone". On the basis of the detailed written statement, the partition suit was opposed. 4. It seems, there is another suit, in which this plaintiff is described as second defendant i.e. O.S.No.115/1999. On the basis of the mutual understanding, both the suits have been taken for trial and the plaintiff in O.S.No.5/2001 was examined in part. At that time, through P.W.1, a document dated 21.9.1996 was sought to be exhibited as Ex.A1. The revision petitioners/defendants opposed for the marking of this document as evidence, on the grounds that the document is not properly stamped and that since the document contemplates division of properties, the same should not be exhibited as evidence. 5. At that time, through P.W.1, a document dated 21.9.1996 was sought to be exhibited as Ex.A1. The revision petitioners/defendants opposed for the marking of this document as evidence, on the grounds that the document is not properly stamped and that since the document contemplates division of properties, the same should not be exhibited as evidence. 5. The learned trial Judge, hearing the parties, by going through the document in question, came to the conclusion, that this document is only an agreement simplicitor and therefore, overruling the objection, accepted the same as Ex.A1, which is under challenge in this revision. 6. Heard the learned counsel for the petitioners, Mr.P.L. Narayanan and the learned counsel for the respondent, Mr. T.R. Rajaraman. 7. The learned counsel for the revision petitioners submits, that the document exhibited as Ex.A1 by the trial Court, is an agreement, under which the parties have agreed to divide the properties in severalty, attracting the nomenclature – "Instrument of partition" as defined under Section 2(15) of the Indian Stamp Act, 1899 (hereinafter called 'the Act') and that the same is to be stamped as bottomary bond, as per the entry 45 of Schedule-I. It is the further submission of the learned counsel, that since the document is not stamped so and the plaintiff has not paid the stamp duty and penalty also, this document is inadmissible in evidence, in addition for want of registration also. 8. Opposing these contentions, the learned counsel for the respondent submits, that the document exhibited as Ex.A1 is not an "instrument of partition" and if at all it could be described as an agreement, contemplating future division, not actually demarcating the properties and in this view, it fails to attract either Section 2(15) of the Act or Entry 45 of Schedule-I of the Act. It is the further submission of the learned counsel for the respondent, that in this view, the document already stamped as agreement, need not attract any further stamp duty and penalty and considering these facts, the trial Court had admitted the document in evidence as Ex.A1, in which there is no error of law. 9. It is the further submission of the learned counsel for the respondent, that in this view, the document already stamped as agreement, need not attract any further stamp duty and penalty and considering these facts, the trial Court had admitted the document in evidence as Ex.A1, in which there is no error of law. 9. The Indian Stamp Act 1899 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. Entry-45 of Schedule-I prescribes the proper stamp duty for partition, which reads: 10. Admittedly, this document has not been charged stamp duty, as indicated above. According to the learned counsel for the revision petitioners, if the parties under a document, agreed to divide the properties in severalty, it should be construed as an Instrument of partition, attracting Entry 45 of Schedule-I of the Act. 11. On the other hand, the learned counsel for the respondent submits, that under the document in question viz., Ex.A1, the parties have not agreed to divide the properties, by metes and bounds, whereas they have agreed to divide the properties according to their shares, which will not amount to partition by metes and bounds, allotting specified portions to the sharers concerned. Ex.A1 fails to give details of properties said to have been allotted to each sharer and therefore, according to the learned counsel for the respondent, there is no actual partition by metes and bounds, which should necessarily follow, this document cannot be construed as a partition agreement, attracting stamp duty. 12. In order to appreciate the nature of document and its effect, I am herewith reproducing the same, which reads: From the reading of the above said documents, it is crystal clear, that there was no actual allotment of the properties to the sharers, by metes and bounds, indicating what are the items or portions allotted to each sharer. It says the total property, asserting that the house is liable to be divided by three in equal moiety. The entire property, though described in the body of the agreement, as per the proposed division, does not divide, by three shares, allotting shares to the parties concerned. It says the total property, asserting that the house is liable to be divided by three in equal moiety. The entire property, though described in the body of the agreement, as per the proposed division, does not divide, by three shares, allotting shares to the parties concerned. Therefore, as rightly contended by the learned counsel for the respondent, under this document there is no actual division of the properties or there is no agreement also dividing the properties, to take the same, according to their shares, contemplating future document. It says simply, each sharer is entitled to equal share and nothing more. 13. Under Section 2(15) of the Act, if the agreement divides the property or if the agreement contemplates to divide the said property in severalty, then only it could be construed as an instrument of partition, which are all absent in this document. After all, the parties have agreed to divide the properties and there was no agreement dividing the properties and taking the same, according to the shares. In this view, the learned counsel for the respondent submits, since there was no actual transfer of interest by dividing the properties, by metes and bounds, question of treating the same, as partition deed or instrument of partition, would not arise for consideration and in support of the said contention, aid is sought from the Board of Revenue, Madras v. M. Swaminatha ( AIR 1980 Mad 97 ). A Full Bench of this Court, considering the scope of Section 2(15) of the Indian Stamp Act, as well as the suggestions of the panchayatdars, regarding the divisibility of the properties, mode of division, has ruled, such a document could not be described as an "instrument of partition" or an agreement to divide the properties as between the co-owners, attracting Section 2(15) of the Act. It is the further observation of this Court, that this kind of document is merely a record of an arrangement with an intention of executing documents in the future so as to secure individual title over the properties in question. In the case involved in the above ruling also, the document in question came into being, at the instance of the panchayatdars, regarding the partition and the future action to be followed. 14. In the case involved in the above ruling also, the document in question came into being, at the instance of the panchayatdars, regarding the partition and the future action to be followed. 14. In the case on hand also, at the instance of the panchayatdars, as agreed by the parties also, as seen from the plaint, as well as from the written statement, the document in question came into existence. This agreement neither vests or divests in praesenti any title in properties regarding the subject matter of the suit, as between the contesting claimants. It contemplates only mode of division, as far as the house is concerned. It also contemplates certain acts to be followed, to make this document effective. In view of the ratio laid down in the above case, the document in question fails to attract either Section 2(15) of the Act or Entry 45 of Schedule-I of the Act. 15. The trial Court considering the fact that there was no actual division, treated this document as an agreement and I do not find any error in this conclusion, warranting interference by this Court. For the foregoing reasons, I do not find any merit in this revision and the same deserves dismissal. In the result, the revision is dismissed. No costs. C.M.P.No.7676 of 2004 is closed.