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2011 DIGILAW 336 (MP)

Suresh Kumar Agrawal v. State of M. P.

2011-03-11

A.K.SHRIVASTAVA

body2011
ORDER 1. By this writ petition filed under Article 226 of the Constitution of India, petitioners are seeking following reliefs : It is therefore prayed that the petition may kindly be al1owed. The order impugned dated 2.11.2010, passed by the Board of Revenue Gwalior, (Annexure –P/11), order dated 19.01.2010 passed by the Commissioner Rewa Division Rewa (Annexure P-9) and order dated 20.09.2007 passed by the Col1ector of Stamps Satna (Annexure –P/7) may kindly be set aside. The case may kindly be remanded to the Collector of Stamps Satna. 2. The contention of learned counsel for petitioner is that an oral partition took place between the members of Hindu Undivided Family on 31.3.1996 and accordingly the erstwhile Hindu Undivided Family which was existing in the name of Ram Vishal Agrawal was partitioned by meets and bounds. The share in the immovable property, assets and liabilities were allotted to each coparcener in the oral partition. To avoid any future misunderstanding and to maintain peace in the family on the basis of the oral partition which took place on 31.3.1996, a document of memorandum of partition based on earlier oral partition dated 21.3.1996 was prepared on 10.4.1996. In the basis of memorandum of partition the petitioner applied to get their names mutated in the municipal record. However, the Municipality Nagore instead of mutating the names of petitioners in the Municipal record referred the matter to Collector (Stamps). The Collector (Stamps) vide its order dated 25.9.2004 (Annexure-P/2) directed to pay deficit stamp duty and duty penalty. This order was assailed by the petitioners by filing an appeal before the Additional Commissioner Rewa which was allowed on 7.11.2006 and the matter was remanded to the Collector (Stamps). Thereafter vide Annexure-PI7 dated 20.9.2007 the Collector again passed an order to pay the stamp duty and duty penalty in terms of the order. This order was assailed before the Additional Commissioner, Rewa Division, Rewa by filing an appeal which was time barred, but the delay was not condoned although there was an application to condone the delay. The appeal was dismissed on 19.1.2010, and thus order of Commissioner was assailed before the Board of Revenue, who I dismissed the appeal of petitioners by affirming the order of learned Additional Commissioner. 3. In this manner this petition has been filed by the petitioners. 4. The appeal was dismissed on 19.1.2010, and thus order of Commissioner was assailed before the Board of Revenue, who I dismissed the appeal of petitioners by affirming the order of learned Additional Commissioner. 3. In this manner this petition has been filed by the petitioners. 4. The contention of learned counsel for petitioners is that it is well settled in law that a memorandum of partition acknowledging the earlier partition which affected by meets and bounds, is not required to be registered and therefore the order of Collector (Stamps) dated 20.9.2007 (Annexure-P/7) is illegal, without jurisdiction and de hors to section 17 (1) (b) of the Indian Registration Act, 1908 (in short "the Act"). 5. On the other hand, Shri Sudesh Verma, learned Movement Advocate argued in support of impugned order and submitted that the Collector (Stamps) I did not commit any error in directing the petitioners to pay deficit stamp duty and duty penalty. 6. Having heard learned counsel for parties, I am of the view that this petition deserves to be allowed. 7. On going through the document of memorandum of partition (Annexure P/1) dated 10.4.1996 it is gathered that erstwhile Hindu Undivided Family which was existing in the name and style "Ram Vishal Agrawal' was partitioned since, the oral partition took place in the family on 31.3.1996. The total assets and liabilities of the said Hindu Undivided Family was partitioned by allotting the ,: share to each party on 31.3.1996. In order to lay-down the terms and conditions earlier oral familypm1ition which took place on 31.3.1996, a memorandum of partition (Annexure- P/1) was prepared which was signed by the parties. The factum of earlier oral partition by meets and bounds and allotment of share in the immovable property to each coparcener separately including the liabilities and assets is not disputed by the parties. There was thus destruction of joint status on 31.3.1996. On bare perusal of document of memorandum of partition (Annexure-P/l) dated 10.4.1996 this Court finds that by this document the partition is not effected but merely this document was reduced in writing in order to note down the earlier oral partition. There was thus destruction of joint status on 31.3.1996. On bare perusal of document of memorandum of partition (Annexure-P/l) dated 10.4.1996 this Court finds that by this document the partition is not effected but merely this document was reduced in writing in order to note down the earlier oral partition. In the document of memorandum of partition (Annexure-P/l) dated 10.4.1996 specifically it has been mentioned that to avoid any future misunderstanding and to maintain peace in the fan1ily an oral partition of total , 'assets and liabilities of the said HUF was made on 31.3.1996 and due to said oral partition the erstwhile HUF in the name of 'Ram Vishal Agrawal' stands totally partitioned. Further in the document of memorandum of partition it has been embodied that the assets and liability which have been allotted to each party in the oral partition has been described in the Scheduled to the memorandum of partition. Further it has been mentioned in the said document that it is considered expedient to lay down in writing the terms and conditions of oral family partition effected between the parties on 31.6.1996 so that there may not be any '. misunder taking between the parties in future so as to escape the family partition. Thus, I am having no scintilla of doubt in holding that by the memorand4m of partition dated 10.4.1996 no right title or interest were created, declared, assigned, limited or extinguished in present or future as envisaged under section 17 (1) (b) of the Indian Registration Act, 1908 required to be registered compulsorily. In this context I am placing reliance on Mulla's Registration Act 11th Edition Page 125 and think it apposite to quote that portion :- "However, a writing which merely stated 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." 8. The Division Bench of this Court in Narayan Sakharam Patil v. Cooperative Central Bank Malkapur AIR 1983 Nagpur 434 has held that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit or extinguish any right title or interest' in the property which is admittedly over Rs. 100 in value. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated I would like to quote that particular passage of said decision which reads thus; "It is/can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit or extinguish.................any right title or interest' in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated." This decision was rendered by Justice Vivian Bose as his Lordship the then was. This decision was later on followed by the Supreme Court Roshan Singh and others v. Zile Singh and others, AIR 1988 SC 881 and it was specifically held that there was an oral partition by meets and bounds and thus there was disruption of joint status and if it was later on reduced in writing as a memorandum, the said memorandum, itself does not create, assign, limit or extinguish any tight title interest of party, therefore, does not require to be registered. In this decision Supreme Court has specifically held that 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 S. 17 (1 ) (b) of the Act. But it has been specifically held by the Supreme Court 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 0 fact and it does not require registration. 9. For the reasons stated hereinabove I am not having any scintilla of doubt I that any document which is only a memorandum of partition which took place earlier does not require any registration, therefore, no stamp duty or duty penalty as directed by the Collector can be realized from the petitioners. 10. 9. For the reasons stated hereinabove I am not having any scintilla of doubt I that any document which is only a memorandum of partition which took place earlier does not require any registration, therefore, no stamp duty or duty penalty as directed by the Collector can be realized from the petitioners. 10. Resultantly, this petition succeeds and is hereby allowed and the impugned order dated 2.11.2010, passed by the Board of Revenue Gwalior (AnnexureP/11), order dated 19.1.20 10 passed by the Commissioner Rewa Division Rewa (Annexure P-9) and order dated 20.9.2007 passed by the Collector (Stamps) Satna (Annexure-P/7) are set aside. It is hereby held that document of memorandum of partition does not require any registration in order to pay any deficit stamp duty and duty penalty. No costs.