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2009 DIGILAW 270 (MAD)

Venugopal & Others v. M. Gopalakrishnan & Others

2009-01-22

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment :- This Civil Revision Petition has been directed against the order passed by the Execution Court in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964 on the file of the Court of District Munsif, Tirupattur. O.S.No.79 of 1945 was filed by one Meenammal for partition before the Court of Subordinate Judge, Vellore. The said suit has subsequently been transferred to the Subordinate Court, Tirupattur and renumbered as O.S.No.81 of 1964. A decree has been passed in the said suit and the same was challenged in an appeal in A.S.No.145 of 1960 before this Court wherein it was held that the plaintiffs 2 & 3 are entitled to one half share in the plaint schedule property and remaining one half belongs to D28 to D30 and there is also a direction in A.S.No.145 of 1960 as to the effect that D28 to D30 have to pay necessary Court Fees for partition and separate possession of their half share in the plaint schedule properties. The matter went to the Honourable Apex Court in Civil Appeal No.1471 of 1967. There was an compromise entered into between the plaintiffs 2 & 3 and D28 to D30 – who are the respondents 19 to 21 in Civil Appeal NO.1471 of 1967 before the Honourable Apex Court. As per the terms of the memo of compromise Respondents 19 to 21 / D28 to D30 have conveyed their half share in favour of the plaintiffs 2 & 3 in lieu of a sum of Rs.26,500/-. The said sum of Rs.26,500/- was also paid by the plaintiffs to Respondents 19 to 21 / D28 to D30 as seen from the orders of the learned District Munsif in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964. 2. The learned senior counsel for the revision petitioner challenges the impugned order of the learned District Munsif in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964 on two grounds one is that the defendants 28 to 30 have not paid the Court fees for declaration of their share as per the preliminary decree before or after the compromise decree was passed by the Honourable Apex Court in Civil Appeal No.1471 of 1967 and that the mortgage amount of Rs.1,300/- was not paid by the plaintiffs. The learned Senior Counsel appearing for the respondents would focus the attention of this Court to the counter filed by the revision petitioners / defendants 16 to 18 in EA.No.117 of 1974 in O.S.No.81 of 1964, wherein at paragraph 8 they admit that the respondents / plaintiffs 2 & 3 have deposited the mortgage amount of Rs.1,300/- on 24.01.1974. So the contentions of the learned senior counsel for the revision petitioners that the respondents / plaintiffs 2 & 3 cannot execute the decree on the ground of non-payment of the mortgage amount of Rs.1,300/- falls to the grounds. 3. The next contention raised by the learned senior counsel for the revision petitioner is that even though the plaintiff have paid the court fee subsequent to the filing of the suit in the year 1955 under I.A.No.1370 of 1955 on 29. 1955, the defendants 28 to 30, who have been declared one half share in A.S.No.145 of 1960, have not paid the due Court fees for the declaration of their one half share even either before the compromise decree was passed in TPT.SC.OS.No.81 of 1964 or after the passing of the compromise decree within the period of limitation as per the Article 136 of the Indian Limitation Act. In support of this contention the learned Senior Counsel for the revision petitioners also bassed his reliance on AIR 2001 SC 3404 (Hameed Joharan Vs. Abdul Salam). The facts of the said case in brief are that it was contented on behalf of the appellant that the execution petition filed by the decree holder is barred by limitation under Article 136 of the Limitation Act. A preliminary decree was passed for partition in the said suit on 6. 1969, followed by the final decree on 20.11.1970, wherein the parties were directed to furnish the stamp papers. In the mean while, the original decree holder expired and his LRs were impleaded and they furnished the non-judicial stamp papers and an execution petition was filed on 21.05.1984 with engrossed stamp papers dated 23. 1984. Only under such circumstances, it was contented by the appellants therein / respondents-defendants in that suit that the EP itself is barred by limitation under Article 136 of the Limitation Act. 1984. Only under such circumstances, it was contented by the appellants therein / respondents-defendants in that suit that the EP itself is barred by limitation under Article 136 of the Limitation Act. Only under such circumstances, the Honourable Apex Court has laid down the ratio decidendi in the following lines:- "The language used by the legilature in Article 136 if read in its proper perspective to wit : when the decree or order becomes enforceable must have been to clear up any confusion that might have arisen by reason of the user of the expression the date of the decree or order which was used in the earlier Act. The intention of the legislature stands clearly exposed by the language used therein viz. To permit twelve year certain period from the date of the decree or order. It is in this context that a decision of the Calcutta High Court in the case of Biswapati Dev Vs. Kennsington Stores, AIR 1972 Cal 172 wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein wit: when the decree or order becomes enforceable should be read in their literal sense. We do feel it expedient to lend our concurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of decree is the date on which the decree becomes enforceable or capable of being enforced_ what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question of attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bomby High Court in Subhash Ganpartrao Buty Vs.Maroti Krishnaji Dorlikar, AIR 1975 Bom 244. The Full Bench in the decision observed (para 7): "............. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bomby High Court in Subhash Ganpartrao Buty Vs.Maroti Krishnaji Dorlikar, AIR 1975 Bom 244. The Full Bench in the decision observed (para 7): "............. It is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since thre is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the aims and object as set out in the Statement of Objects and Reasons can be brought in aid or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament." There cannot be two opinion with regard to the ratio laid down by the Honourable Apex Court in the said Judgment. But in this case a final decree was passed in the suit on 24.09.1966 by the learned Subordinate Judge, Tirupattur in I.A.No.264 of 1964 in O.S.No.81 of 1964. Before passing of the final decree, a compromise was entered into between the plaintiffs 2 & 3 on one hand and D28 to D30 on the other. The said final decree application was filed by the plaintiffs 2 & 3. It is seen from paragraph 2 to the final decree in I.A.No.264 of 1964 in O.S.No.81 of 1964 that the shares of D28 to D30 (half share) have been allotted as per the Commissioners report and plan filed therein. So the contention of the learned Senior Counsel for the revision petitioners that the defendants 28 to 30 have not paid their Court fee for partition of their share within the time prescribed under law and that since the plaintiff have purchased the half share of D28 to D30 under the memo of compromise before the Honourable Apex Court, is not entitled to execute the same under the present R.E.P.No.165 of 1981 in TPT.SE.OS.No.81 of 1964 holds no water. 4. The other contention raised on behalf of the learned Senior Counsel for the revision petitioners is that the non-judicial stamp papers were not furnished by the defendants 28 to 30 as directed in the final decree. 4. The other contention raised on behalf of the learned Senior Counsel for the revision petitioners is that the non-judicial stamp papers were not furnished by the defendants 28 to 30 as directed in the final decree. A perusal of the final decree in I.A.No.264 of 1964 in O.S.No.81 of 1964 dated 24.09.1966 at the end also reveals that the plaintiffs have furnished non-judicial stamp papers to the value of Rs.79/-. 5. Relying on Article 45 of the Indian Stamp Act, 1899, the learned Senior Counsel appearing of the respondents would contend that the non-judicial stamp papers furnished by the plaintiff alone is enough for engrossing the final decree and there is no need for D28 to D30 to furnish a separate non-judicial stamp papers for engrossing their share separately. Article 45 of the Indian Stamp Papers Act,1899 reads as follows:- "Partition_ Instrument of (as defined by Section 2(15). The same duty as a Bottomery Bond (No.16) for the amount of the value of the separated share or shares of the property. Article 45 of the Indian Stamp Papers Act,1899 reads as follows:- "Partition_ Instrument of (as defined by Section 2(15). The same duty as a Bottomery Bond (No.16) for the amount of the value of the separated share or shares of the property. N.B._ The largest shae remaining after the property is partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated: (a)when an instrument of partition containing an agrement to divide property in severalty is executed and a partition is effected in pursuance of such agreement, the duty chargeable upon the instrument, effecting such parition shall be reduced by the amount of duty paid in respect of the first instruent but shall not be less than two rupees fifty paise; (b)where the land is held on Revenue settlement and paying the full assessment or is an Inam land assessed under the Tamil Nadu Inams (Assessment) Act, 1956 (Tamil Nadu Act XL of 1956) the value for the purpose of duty shall be calculated at twenty five times the annual revenue; (c)Where a final order for effecting a partition passed by any Revenue Authority or any Civil Court, or an award by an arbitrator directing a partition, is stamped with the stamp required for an instrument of partition, and an Instrument of partition in pursuance of such order or award is subsequently executed, the duty on such instruent shall not exceed two rupees fifty paise." So, as seen from the final decree itself, the plaintiffs have furnished the required nonjudicial stamp papers for engrossing the decree. 6. The learned Senior Counsel appearing for the respondent relying on 2000(6) ALT 769 (Sowjanya and another Vs. Chinna Chikkanna) would contend that once the plaintiffs have furnished the non-judicial stamp papers for engrossing the final decree there is no need for other shares viz. D28 to D30 to furnish separate non-judicial stamp papers for engrossing the final decree. The facts of the said case in brief are that the plaintiffs filed the suit against their father for partition of joint family property. D28 to D30 to furnish separate non-judicial stamp papers for engrossing the final decree. The facts of the said case in brief are that the plaintiffs filed the suit against their father for partition of joint family property. They subsequently entered into a compromise, under which family properties were partitioned into two shares, one was allotted to the plaintiffs jointly which was described as A schedule and other share was allotted to the defendant / father of the plaintiffs which was described as B schedule. For preparing the final decree non-judicial stamp paper was called for by the Court. The Court has directed the plaintiffs to deposit non-judicial stamp duty of Rs.1,153/- after giving credit to stamp duty of Rs.180/- already deposited. The said order on the docket was chellenged before the High Court of Andhra Predesh in CRP.No.1473 of 2000, wherein it was held as follows:- "It is not disputed that the arrangement between the parties, which has been recorded in the compromise petition, on the basis of which a decree has been passed by the Court, is a partition, which falls under item 40 of Schedule I-A. The stamp duty payable on such deeds is the same as Bottomry Bond shown at item 14 for the amount or the market value of the separated share or shares of the property. The suit property has been partitioned into two shares. Admittedly, the larger share described in Schedule-A has been allotted to the plaintiffs and the smaller share has been allotted to the defendant-father. In view of the definition of the separatd share as given in the note under this entry in the schedule, the largest share remaining after the property is partitioned shall be deemed to be that from which the other shares are separated. In this case as the property has been partitioned into only two shares the bigger shall be deemed to be one from which the other share has been separated. Thus, obviously, it is the smaller share, which in this case shall be treated as separated share. In this case as the property has been partitioned into only two shares the bigger shall be deemed to be one from which the other share has been separated. Thus, obviously, it is the smaller share, which in this case shall be treated as separated share. The contention of the learned Government Pleader for Revenue that in this case inasmuch as the suit property has been partitioned into only two shares and inasmuch as the plaintiffs wanted to separate their shares from the joint family property, it s the share which has been allotted to the plaintiffs, which must be construed as the separated share cannot be countenanced in view of very specific definition of the separated shar as incorporated in the note under the said entry." It is pertinent to be noted in this case at this juncture that so far the Government has not objected to for passing final decree on the ground that necessary non-judicial stamp papers were not filed by the plaintiffs in to the suit. So far as these revision petitioners herein, who are D16 to D18, are concerned as per the decree passed in A.S.No.145 of 1960 have been asked to demolish the superstructure put up by the defendants and to handover the same to the plaintiffs since they are only mortgagees. As I have already referred to, the mortgage amount of Rs.1,300/-has also been deposited by the plaintiffs. EP filed by the plaintiffs in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964 is not barred under Article 136 of the Indian Limitation Act. Under such circumstances, I am of the view that there is no reason to set aside the order of delivery passed by the Execution Court in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964 on the file of the Court of District Munsif, Tirupattur. 7. In fine, the Civil Revision Petition is dismissed confirming the order of the Execution Court in REP.No.165 of 1981 in TPT.SE.OS.No.81 of 1964 on the file of the Court of District Munsif, Tirupattur. Connected Miscellaneous Petition is closed. No costs.