ORDER Shrivastava, J. -- 1. Feeling aggrieved by the order dated 8.9.2009 by which an application under Order XIII rule 3 CPC filed on behalf of defendant-petitioner has been rejected, the defendant has knocked the doors of this Court by preferring this petition under Article 227 of the Constitution of India. 2. Sans unnecessary detail, the facts lie in narrow compass, suffice it to say that a suit for declaration and injunction has been filed by plaintiff respondent for eviction of the defendant-petitioner from the tenanted premises on the relationship of the landlord and tenant on the grounds envisaged under section 12(1) of the M.P. Accommodation Control Act, 1961. The defendant -petitioner by filing written statement refuted the plaint averments and prayed that the suit be dismissed. The learned trial Court framed necessary issues and the plaintiff-respondent after examining his witnesses, closed his evidence. 3. According to the averments made in the memorandum of Writ petition, when the case was listed by learned trial Court for the evidence of defendant-petitioner, an application under Order XIII rule 3 CPC was submitted by him praying therein that the document (Ex.P-2) be held to be inadmissible in evidence-and the evidence adduced in respect to Ex.P2 may be rejected and may not be read in evidence. The crux of the application on the basis of which the relief in it has been claimed is that the document (Ex.P-2) has been executed on a paper not having proper stamp duty and the same is also not a registered document, although the document is for partition of the property having valuation more than Rs.l00/-. 4. The application has been opposed by the respondent-plaintiff by filing written reply and in the reply it has been contended that the document (Ex.P-2) is nothing but an acknowledgment of the earlier oral partition effected during the life time of Awa Ji Rao. The said document cannot be said to be a deed of partition and, hence, the memorandum of partition acknowledging the earlier partition is not at all required to be registered or any stamp duty is required on the said document and, therefore, the application be dismissed. 5. The learned trial Court by the impugned order has dismissed the application. 6. In this manner, the present petition has been filed by the defendant petitioner. 7. 5. The learned trial Court by the impugned order has dismissed the application. 6. In this manner, the present petition has been filed by the defendant petitioner. 7. Shri M.B. Mangal, learned counsel for the defendant-petitioner, by hammering the impugned urder of learned trial Court on the touchstone and anvil of sub-section (15) of section 2 of me Indian Stamp Act, 1899 as amended by M.P. Amended Act, has contended that even the memorandum of partition ackowledging the earlier partition is required to be reduced in writing on the stamp according to the stamp valuation which has been envisaged in Schedule I-A of the Stamp Act as amended by the M.P. Amended Act and in this regard, learned counsel has invited our attention to clause 43 and has contended that the instrument of partition is to be executed on the paper having the same stamp duty as for a Bond (No.12) for the amount of the market value of the separated share of shares of the property and because the document (Ex.P-2) is not having the requisite stamp duty, the same is inadmissible in evidence. 8. It has also been put forth by the learned counsel that if the document (Ex.P-2) is taken into consideration in proper perspective, since, it is a document of partition having value more than Rs.100/-, the same is compulsorily registrable according to section 17 of the Indian Registration Act and for this another reason, the document (Ex.P-2) is inadmissible in evidence. On these premised submissions, it has been argued by learned counsel that by allowing this petition the impugned order of learned trial Court be set aside and the application filed under Order XIII rule 3 CPC be allowed and It may be held that the document (Ex.P-2) is inadmissible in evidence. 9. Combating the aforesaid submission of learned counsel for the petitioner-defendant it has been argued by Shri Deepak Khot, learned counsel appearing for plaintiff-respondent, that for no rhyme or reason the document, EX.P-2 (Annexure P-3) can be said to be a deed of partition. On the contrary, the same is the memorandum by which the earlier partition has been acknowledged and if that is the position, neither the Same s required to be registered nor any stamp duty is needed. On the contrary, the same is the memorandum by which the earlier partition has been acknowledged and if that is the position, neither the Same s required to be registered nor any stamp duty is needed. Replying the argument of learned counsel for the petitioner it has been contended by learned counsel that in the document of memorandum acknowledging the earlier partition If the market value of the separated share is mentioned, then only clause 43 of Schdule 1-A (M.P. Amended Act) would be made applicable However, in the document, Ex.P-2, since the acknowledgment of earlier partition has been mentioned without valuing the share, therefore, neither this document is compulsorily registrable nor any stamp duty is needed. On these premised submissions it has been argued by learned counsel that this petition be dismissed with heavy costs because after the evidence of plaintiff was over, the defendant-petitioner at the time of adducing his evidence in order to linger on the trial, has moved this frivolous type of application. In support of his contention learned counsel has placed heavy reliance on two decisions of Supreme Court Kale and others v. Deputy Director of Consolidation and others [ AIR 1976 SC 807 ], and Roshan Singh and others v. Zile Singh and others [ AIR 1988 SC 881 ], and also placed reliance on a Single Bench decision of this Court Laxman Swaroop Sadaiya v. Bal Kishan Babulal Garg [ 1985 MPLJ 588 ]. 10. Having heard learned counsel for the parties, we are of the considered view that this petition deserves to be dismissed. 11. On going through the document, Ex.P-2, althbough the title which has been given to this document is Parivarik Vyavastha Patra (Family Settlement Deed), but on going through the contents of it, this Court finds that by this document the parties to this document have acknowledged the oral partition which took place earlier. The executants of this document are Smt. Rohini Khanvilkar d/o Late Shri Awa Saheb Shirke, Shrikant Shirke s/o Late Shri Awa Saheb Shirke, Shri Ramakant Shirke s/o Late Shri Awa Saheb Shirke, Ravikant Shirke (plaintiff) s/o Late Shri Awa Saheb Shirke and Smt. Hema Mohite d/o Late Shri Awa Saheb Shirke. On bare perusal of para 1 and 5 of this document, this Court finds that the ancestral property of the parties is situated at Shrike Sahab Ka Bada, Shinde Ki Chhawani. On bare perusal of para 1 and 5 of this document, this Court finds that the ancestral property of the parties is situated at Shrike Sahab Ka Bada, Shinde Ki Chhawani. Further it has been mentioned in the document that oral partition took place during the life time of their father Late Shri Awa Saheb Shirke. For ready reference it would be condign to quote para 1 and 5 of this document, which read thus: ^^1- ;g fd] ge i{kdkjku dh vfoHkkftr iqLrSuh laifRr tks fd Hkou dz- 32@1149 f’kjds lkgsc dk ckM+k] f’kUns dh Nkouh esa fLFkr gS] ds ,d Hkkx tks ckgj lM+d dh rjQ fLFkr gS o nqdkusa cuh gqbZ gSA mDr laifRr dk ekSf[kd caVokjk ge i{kdkjku ds firkth ds thoudky esa gks x;k Fkk vkSj mDr caVokjs ds rkjrE; esa ge i{kdkjksa us vius&vius fgLls dh feyh laifRr ij vkf/kiR; izkIr dj fy;k FkkA 2------- 3------- 4------- 5- ;g fd] pwafd ekSf[kd caVokjk i{kdkjksa ds chp esa iwoZ esa gks tkdj i{kdkju viuh&viuh laifRr ds LoRo/kkjh o vkf/kiR;/kkjh gks x, gS vr% Åij of.kZr laifRr ds laca/k esa i{kdkjku ds e/; vc dksbZ caVokjk ‘ks”k ugha jgk gSA vr% bl fy[kre ds ek/;e ls iwoZ esa gq, ekSf[kd caVokjs dks dkxt ij fy[kk tk jgk gS ftlls fd i{kdkjku vius&vius uke vius vk, gq, fgLls dh laifRr ij bUnzkt djk ysos o Hkfo”; esa i{kdkjksa ds e/; dksbZ ijs’kkuh u vkosA** Nowhere in the entire document, Ex.P-2, it has been mentioned that by this document any partition of the immovable property is made between the parties. On the other hand, bare perusal of para 1 of this document, indicates that the parties to this document have acknowledged the earlier oral partition which took place during the life time of their late father Shri Awa Saheb Shirke. It is well settled in law that the document which itself does not effect a partition, but merely records the nature acknowledging the earlier partition, does not require any registration because by executing the said document no rights are created declared, assigned, limited or are extinguished and, therefore, according to us, the nature of this document would not come within the purview of clause (b) and clause (c) of section 17 of the Indian Registration Act, 1908. Apart from this, if sub-section (2) of section 17 of the Indian Registration Act is taken into consideration into proper perspective and particularly 2(v), since by the document, Ex.P2 (Annexure P-3) itself any right, title or interest creating, declaring, assigning, limiting or extinguishing title or interest of the value of one hundred rupees or upwards to or in the immovable property are not conferred in the parties, but by this document mere a right to obtain another document which will, when executed may create, declare, assign, limit or extinguish any such right, title or interest in the property has been conferred and, therefore, clause (b) and (c) of sub-section (1) to section 17, according to us, would not apply and, we have no scintilla of doubt that the document in question, Ex.P-2, is not at all require any registration. In this context, we may profitably place reliance on the above said two decisions of Supreme Court which have been rightly placed reliance by Shri Khot, learned counsel for plaintiff-respondent. In Kale and others (supra), the Supreme Court in para 10 has held that in such circumstances registration is not necessary. Similarly, in later decision Roshan Singh (supra), the Supreme Court in para 9 has categorically held that 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. It would be germane to quote the relevant portion of para 9 of the said decision of the Supreme Court, which reads thus: "9. It is well settled that while an instrument of partition which operates or is intended to operate as a declared violation constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S.17(1)(b) of the Act, 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 essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a prevously completed transaction. The use of the pat tense does not necessarily indicate that it is merely a recital of a past transaction. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a prevously completed transaction. The use of the pat tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does to require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document." On testing the above said principles of law on the touchstone and anvil of the contents of the document, EX.P-2 (Annexure P-3) particularly paras 1 and 5, which we have quoted hereinabove, we are of the view that the said document is not at all required to be registered for two reasons. Firstly, the partition has already been effected orally earlier to the execution of this document during the life time of Late Shri Awa Saheb Shirke and secondly, if later on after the death of Late Shri Awa Saheb Shirke, this document has been reduced in writing acknowledging the earlier partition, it would not come within the purview of clauses (b) and (c) to sub-section (1) of section 17 of the Indian Registration Act, but would come within clause (v) of sub-section (2) because in para 5 of this document it has been mentioned that in the oral partition which took earlier, the property fell in the share of the respective parties, they shall now be competent to get their names mutated, so that the parties may not face any trouble in future. 12. We have also gone through the Mulla on the Registration Act, 11th Edition (page No.125) in which the following has been observed: "However, a writing, which merely states 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. A document, which is a memorandum of a past event (partition), can be received in evidence though it is not registered. A document, which is a memorandum of a past event (partition), can be received in evidence though it is not registered. 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." At page No.127 to 128 it has been observed as under: "A mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should by its own force, operate or purport to operate, to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right, and there would be no necessity of registering such a document.” "Partition lists, which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition. Where partition had taken place before the execution of a document, which was simply a memorandum of shares between the brothers, the document did not require registration." 13. Hence, we are of the firm view that learned trial Court rightly held that the document (Ex.P-2 (Annexure P-3) is not required to be registered compulsorily. 14. We shall now advert ourselves to the submission of learned counsel for the petitioner-defendant as to whether any stamp duty is payable on this document or not. Hence, we are of the firm view that learned trial Court rightly held that the document (Ex.P-2 (Annexure P-3) is not required to be registered compulsorily. 14. We shall now advert ourselves to the submission of learned counsel for the petitioner-defendant as to whether any stamp duty is payable on this document or not. The definition clause of Indian Stamp Act defining the "instrument of partition" as envisaged within clause (15) to section 2 has been substituted by M.P. Amendment Act No.8 of 1975 reads thus: "(15) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property is severalty, and also includes – (i) a final order for affecting a partition passed but any revenue authority or any civil Court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is affected without executing any such instrument, any instrument or instruments, signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners." On going through the above said provision particularly clause (iii) of the above said clause 15, we find that it would also include any instrument signed by the co-owners and recording whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners. Similarly, Schedule 1-A which pertains to the stamp duty on instruments as envisaged under section 43 of the Indian Stamp Act which has been substituted by M.P. Amendment Act No.12 of 2002 which was published in M.P. Rajpatra (Asadharan) on 12.8.2002 at page 754 (2037) reads thus: "Schedule 1A Stamp Duty on Instruments (See section 3) Description of Instrument Proper Stamp Duty 43. Partition -- Instrument of The same duty as a Bond (No.12) for the amount of the market value of the separated shares of the property. Partition -- Instrument of The same duty as a Bond (No.12) for the amount of the market value of the separated shares of the property. Note: The largest share 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 share, then one of such equal shares) shall be deemed to be that from which the other shares are separated : Provided that: (a) when an instrument of partition containing an agreement 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 a partition shall be reduced by the amount of duty paid in respect of the first instrument, but shall not be less than one hundred rupees. (b) where the instrument relates to the partition of agricultural land exclusively the market value for the purpose of duty shall be calculated at hundred times the annual land revenue. (c) where a final order for effecting a partition passed by any revenue authority or 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 instrument shall not exceed one hundred rupees." According to the above said schedule, the same stamp duty is chargeable in the same manner as being charged for a Bond (No.12) for the amount of the market value of the separated share of shares of the property. The argument of learned counsel for the petitioner-defendant would have been accepted only if in the document, EX.P-2 (Anneuxre P-3) the valuation of the property fell in the share of each coparcener would have been mentioned. But, on going through the entire document, this Court is unable to find that any valuation of the property which fell in the share of coparcener after partition has been mentioned and, therefore, we have no scintilla of doubt that the stamp duty as envisaged in clause 43 of Schedule I-A of the Indian Stamp Act as amended by the M.P. Amended Act is not chargeable. 15. Hence, according to us, learned trial Court did not commit any error in holding the stamp duty as envisaged under the above said clause 43 is not chargeable. 15. Hence, according to us, learned trial Court did not commit any error in holding the stamp duty as envisaged under the above said clause 43 is not chargeable. The learned trial Court rightly rejected the application of defendant-petitioner filed under Order XIII rule 3 CPC, which was filed by defendant-petitioner after the closure of plaintiff's evidence and in order to linger on the trial at the time when the defendant was to adduce his evidence. 16. For the reasons stated hereinabove this petition is found to be bereft of any substance and the same is hereby dismissed with costs. Counsel fee Rs.3,000/-, if pre-certified. The civil suit for eviction appears to be quite old and, therefore, learned trial Court is hereby directed to decide the civil suit as early as possible preferably within a period of six months from today.