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2008 DIGILAW 4560 (MAD)

K. Vaithiyanathan v. K. Thirunavukarasu

2008-12-05

S.RAJESWARAN

body2008
ORDER This Civil Revision Petition is filed against the Order dated 29.10.2007 passed in I.A. No. 716 of 2007 in O.S. No. 16 of 2004 on the file of the District Munsif, Sirkazhi. 2. The second defendant in O.S. No. 16 of 2004 is the revision petitioner before this Court. 3. O.S. No. 16 of 2004 has been filed by the respondent/plaintiff for partition and separate possession of the plaintiffs 2/3rd share in the suit property. Written statement has been filed by the revision petitioner/second defendant and the suit is being contested. 4. During trial, the revision petitioner/second defendant filed I.A. No. 716 of 2007 under Order 8 Rule 3 read with Section 151 of C.P.C., to mark four documents mentioned in the petition as evidence on his side. In the affidavit filed in support of I.A. No. 716 of 2007, the revision petitioner/second defendant stated that the plaintiff is his brother and already his evidence was closed. When he was being examined as D.W.1, he produced four documents, viz., 1. Document dated 23.8.2001 which is a family arrangement; 2. List of partition or letter of confirmation dated 8.12.2001; 3. Partition of division of house with fixtures and movables dated 8.12.2001; and 4. Photos with negatives and bills. 5. The respondent/plaintiff objected to mark the above said documents and therefore, an application was filed in I.A. No. 716 of 2007. This was resisted by the respondent/plaintiff by filing a counter wherein it was stated that the documents are not admissible in evidence for want of registration and also stamp duty. The trial Court by order dated 29.10.2007 dismissed I.A. No. 716 of 2007 and aggrieved by the same, the above revision petition under Article 227 of the Constitution of India has been filed before this Court. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents and judgments filed in support of their submissions. 7. The learned counsel for the petitioner submits that the document sought to be marked, do not require any stamp duty or registration as they are family arrangements and they could be marked straightaway. In support of his submissions, the following judgments are relied by the learned counsel for the petitioner: 1. (1989) 2 MLJ 18 : (1989) 2 L.W. 98 2. (2006) 4 MLJ 706 : (2006) 4 L.W. 971 3. In support of his submissions, the following judgments are relied by the learned counsel for the petitioner: 1. (1989) 2 MLJ 18 : (1989) 2 L.W. 98 2. (2006) 4 MLJ 706 : (2006) 4 L.W. 971 3. (2004) 4 CTC 143 4. (2007) 5 MLJ 203 8. Per contra, the learned counsel for the respondent while reiterating the averments contained in the counter affidavit filed in M.P. No. 1 of 2007 before the Court submits that the documents are not family arrangements and therefore; they require registration and stamp duty. He further points out that the photographs were not marked through the photographer, but, through the revision petitioner and therefore, the same was rightly dismissed by the trial Court. 9. I have-considered the rival submissions carefully with regard to facts and citations. 10. In Roshan Singh v. Zile Singh (supra), the Hon'ble Supreme Court held that it is well settled while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Registration Act. At the same time, a writing which merely recites that there has in time past been a partition, is not a declaration of Will, but, a mere statement of fact, and it does not require registration. The Hon'ble Supreme Court added that the essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. 11. In Karuppannan v. Thavasiappan and Another (supra), it is held by this Court that even an unregistered document can be admitted as an evidence as the same can be looked into for collateral purposes. At the same time, admissibility of the unregistered document is not automatic, if the same is not duly stamped. If the person is willing to pay the deficit stamp duty as well as the penalty on the same, the unregistered deed could be admitted as evidence. 12. In K.G. Shivalingappa (dead) by L.Rs. At the same time, admissibility of the unregistered document is not automatic, if the same is not duly stamped. If the person is willing to pay the deficit stamp duty as well as the penalty on the same, the unregistered deed could be admitted as evidence. 12. In K.G. Shivalingappa (dead) by L.Rs. and Others v. G.S. Eswarappa and Others (supra), the Hon'ble Supreme Court held that though partition amongst Hindus may be effected orally, but, if the parties reduces it in writing to a formal document which is intended to be an evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Section 17(1)(b) of the Indian Registration Act. 13. In Kasim Beevi and Others v. Sowr Beevi and Others (supra), this Court held that the concept of family arrangement or settlement should be treated differently and once the Memorandum of Understanding has been substantially acted upon, the parties must adhere to the settlement, which is in their interest and avoids disputes between them. Such settlements have to be viewed a little differently from ordinary contracts and though not registered, can be relied upon for the purpose of proving possession. 14. In the light of the above legal pronouncements of this Court as well as the Apex Court, now, let me consider the facts of the present case. 15. A perusal of the order passed by the trial Court on 29.10.2007 will show that the documents come under the category of family arrangement as they are mentioning about the actual partition between the parties and it is not merely a record of the earlier partition between the parties. In such circumstances, the trial Court has correctly concluded that it requires registration and stamp duty and therefore, the trial Court is right in dismissing the I.A. No. 716 of 2007. 16. In the result, the Civil Revision Petition is dismissed. No costs. Connected miscellaneous petition is also dismissed. 17. However, it is open to the revision petitioner to pay the stamp duty as well as the penalty, if he want to mark the documents for collateral purposes. 16. In the result, the Civil Revision Petition is dismissed. No costs. Connected miscellaneous petition is also dismissed. 17. However, it is open to the revision petitioner to pay the stamp duty as well as the penalty, if he want to mark the documents for collateral purposes. Petition dismissed.