Judgment :- Chief Justice This Writ Petition assails the Order of the XXII Additional City Civil Judge, Bangalore City (hereinafter referred to as the ‘Trial Court’) in O.S.No.9670/2005, passed on 19.12.2010, whereby a document styled as a Release Deed dated 05.05.1976 was permitted to be ‘marked’ by the Defendants in their evidence, in a suit for partition and possession of Joint family properties filed by the Plaintiff-Petitioner. Review Petition No.482/2010 has been filed by the plaintiff to recall the Judgment dated 17.01.1994 rendered by the Division Bench in RFA No.43/1993 reversing the earlier Order dated 16.01.1993 of the Trial Court, in essence declining to allow the very same ‘Release deed’ to be read in evidence. 2. The plaintiff – D. Sambashivan and defendants’ father late Dhanakoti were brothers, being the sons of late Doraiswamy Mudaliar. Dhanakoti was the eldest son of seven siblings (four brothers and three sisters) and the Plaintiff. Sambashivan the youngest of the brothers. It appears that the former (eldest brother) assumed the responsibility of brining up the latter (the youngest brother). The property in question is situate in Muddenahalli, Bangalore North Taluk, located on Seshadri Road, City Railway Station, Bangalore (hereafter referred to as ‘the suit property’). It is a three storied building on plot No.44 measuring one acre three guntas. The original proprietor namely, Doraiswamy Mudaliar died on 30.09.1952 and his widow on 15.05.1956. Dhanakoti (father of the defendants), Om Prakash, Mani and Sambashivan (plaintiff) were the coparceners of the said HUF and Dhanakoti being the eldest son, became its kartha. The other brothers namely, Om Prakash executed a duly registered Release Deed on 05.05.1962 in favour of Dhanakoti, father of the defendants on 28.06.1971. Mani separated himself from coparcenary vide duly registered Partition Deed dated 28.06.1971 also in favour of Dhanakoti. 3. On behalf of the defendants it is contended that their uncle/Plaintiff had entered into an oral partition with Dhanakoti, relinquishing his right, title and interest in all the movable and immovable properties of the joint family in April 1976; an affidavit of declaration was sworn by him on 15.04.1976 before the Chief Judicial Magistrate; and this was followed up by the purported Release Deed dated 05.05.1976 which forms the fulcrum of their fight. The Plaintiff contends that it is inadmissible in evidence since it is neither properly stamped nor registered. The Plaintiff contends that it is inadmissible in evidence since it is neither properly stamped nor registered. The Defendants claim that payments have been made in connection with the said Release Deed, whereas the Plaintiff asserts that those payments were for salary and other dues payable to him by his brother Dhanakoti. In the meantime, a third party namely, Venkateshan had filed suit O.S.No.10021/1985 seeking recovery of money from the Plaintiff. This suit was decreed ex parte Sambashivan, on 05.11.1985; and thereafter Execution Petition No.10015/1987 was filed in which Sambashivan was similarly set ex parte. It was in those circumstances that an attachment order dame to be passed in respect of the suit property. The defendants, successors in interest of their father late Dhanakoti, immediately initiated proceedings under Order XXI Rule 58 of the Code of Civil Procedure, asserting that the suit property was not available or liable for attachment towards satisfaction of the decree passed in favour of Venkateshan inasmuch as the Plaintiff had already relinquished or released his interest in the attached property by executing the purported Release Deed in question. This motion under Order XXI Rule 58 CPC bearing Miscellaneous Case No.10106/1989 came to be dismissed by the Execution Court on 16.01.1993, resulting in the filing of Regular First Appeal No.43/1993. It is significant that the Defendants had not impleaded the Plaintiff (also the ex parte Judgment-Debtor) in the said Appeal which, in that event, came to be heard and decided in the absence of even the Decree Holder Venkateshan in their favour i.e., completely reversing the view and the order of the Execution Court. 4. It is the uncontroverted case of the parties that the Plaintiff was not granted a hearing by the Division Bench; in fact, even the decree holder was absent before the Division Bench as well. It transpires that the execution proceedings were disposed of on the basis of a statement made by the decree holder Venkateshan that the decree stood satisfied. Since the Plaintiff had not appeared before the Execution Court, a reasonable suspicion could arise that the Defendants may have orchestrated the entire episode with the objective of introducing the controversial ‘Release Deed’ behind the back of the Plaintiff. It is also relevant that a partition suit bearing O.S.No.367/1991 had been previously filed by the Plaintiff, but in forma pauperis. Since the Plaintiff had not appeared before the Execution Court, a reasonable suspicion could arise that the Defendants may have orchestrated the entire episode with the objective of introducing the controversial ‘Release Deed’ behind the back of the Plaintiff. It is also relevant that a partition suit bearing O.S.No.367/1991 had been previously filed by the Plaintiff, but in forma pauperis. Before permission to file that suit as an indigent/pauper was granted that action was dismissed for default/non-prosecution. In our opinion, this dismissal, in the absence of it being restored as contemplated under Order IX Rule 9 CPC, precludes the Plaintiff from re-agitating his indigent/pauper status. The principles of res judicata, would be attracted only if that claim had been cogitated upon and that event would transpire only after the Plaintiff had been declared as a pauper, or in the event of not being so held, had he paid the appropriate Court fee. Admittedly, O.S.No.367/1991 was dismissed for default/non-prosecution before that determination had been pronounced by the Court. 5. On behalf of the Defendants it has been contended that as early as on 15.06.1979 a legal notice has been issued by the Plaintiff (Annexure-R9 to the Review Petition) in response to which the Defendants had pointedly alluded to an agreement dated 01.02.1979 and further that due to financial crisis, they were unable to keep to the schedule of payment. It is contended that the Plaintiff therefore had notice of the ‘Release Deed’; as also on its being filed when the motion under Order XXI Rule 58 CPC was initiated. It should be recalled that the Plaintiff who was the Judgment Debtor in the suit filed by Venkateshan remained ex parte not only in the suit but also in the execution proceedings as well, when the Defendants’ motion under Order XXI Rule 58 CPC came to be rejected. The Plaintiff, we may reiterate, had also not been impleaded by the Defendants in RFA.No.43/1993 in which the Division Bench reversed the Order of the Execution Court. 6. The detailed narration of facts is necessary for deciding the application for condonation of delay of 6145 days in the preferment of Review Petition No.482/2010 filed by the Plaintiff against the Judgment dated 17.1.1994 of the Division Bench passed in RFA No.43/1993. 6. The detailed narration of facts is necessary for deciding the application for condonation of delay of 6145 days in the preferment of Review Petition No.482/2010 filed by the Plaintiff against the Judgment dated 17.1.1994 of the Division Bench passed in RFA No.43/1993. The Plaintiff asserts that he was legally confronted for the first time with the so-called ‘Release Deed’ when it was sought to be introduced in evidence by the Defendants in the second partition suit. Per contra, the Defendants submit that the delay ought not to be condoned for the reason that the Plaintiff was well aware that Defendants would rely on the said Release Deed. On a complete and comprehensive consideration of the factual matrix of the case, as well the relevant law on the subject, it appears to us that the delay in the preferment of the Review Petition requires to be condoned, inasmuch as a miscarriage of justice cannot be countenanced by any Court. We say this for the reason that the Plaintiff has not been afforded an opportunity to put forth his case before the Division Bench in RFA No.43/1993, which had heard the appeal consequent on the dismissal of the Defendants’ motion under Order XXI Rule 58 CPC. There can be no gainsaying that the Plaintiff is not entitled to have the clock put back to the stage of preceding prior to when he had been set ex parte (See Arjun Singh vs. Mahindra Kumar, ( AIR 1964 SC 993 ). Equally, there can also be no cavil that he was an essential, proper and necessary party in the RFA 43/1993 which came to be decided by the Division Bench, virtually demolishing and extinguishing his proprietary rights over properties covered by the document that was focal before the Division Bench viz., the said Release Deed. Admittedly, the Defendants neglected to make him a party to the proceedings before the Division Bench, thereby preventing him from having his say before the Court. The Defendants have not contended that they were not required to implead the Plaintiff in RFA No.43/1993 for any reason including his having been set ex parte in both the Recovery Suit as well as the consequent Execution proceedings. The Defendants have not contended that they were not required to implead the Plaintiff in RFA No.43/1993 for any reason including his having been set ex parte in both the Recovery Suit as well as the consequent Execution proceedings. Of course, had he been impleaded and actually notified/served in the Appeal, the verdict would have been efficacious regardless of whether he had again been set ex part or if the Appeal had been decided in his absence. 7. The appeal before the Division Bench, being a fresh action, necessitated the impleadment and the actual notifying of every party in the original proceedings if not every person who was likely to be affected by the outcome or final verdict in the Appeal. Owing to the failure to implead the Plaintiff in RFA No.43/1993, a miscarriage of law and justice has occurred which calls to be corrected ex debito justicia. The law of limitation or the principles of prescription cannot prevail upon the Court’s duty to eradicate a miscarriage of law and justice wherever and whenever it is discovered or chanced upon. Especially so since this miscarriage of law and justice can be and must be laid exclusively at the door of the Defendants. How then must be the period of limitation be calculated is the next question that has to be cogitated by us. 8. So far as the Review Petition is concerned, the limitation starts to run from the date of the passing of the Order which is sought to be reviewed. In this regard, we also not persuaded by the vehement arguments of learned counsel for the Defendants that the “knowledge” of Release Deed must be attributed to the Plaintiff as on the date of its being mentioned by the Defendants in their response/reply to the Plaintiff’s notice dated 15.06.1979. It is necessary to note that neither the authenticity nor the admissibility of this document has been admitted by the Plaintiff. It is therefore a mere presumption, not founded on logic, that the Plaintiff must be presumed to anticipate, even in the wake of his categorical denial of the authenticity and admissibility of the Release Deed, that the Defendants would undeterred, resolutely endeavour to introduce the Release Deed as evidence. It is therefore a mere presumption, not founded on logic, that the Plaintiff must be presumed to anticipate, even in the wake of his categorical denial of the authenticity and admissibility of the Release Deed, that the Defendants would undeterred, resolutely endeavour to introduce the Release Deed as evidence. It is arguable that there are several other documents and transaction which the Defendants’ themselves have mentioned and relied upon before us, which may assume probative value and hence be indicative of an oral partition having arrived at between the parties. In other words, on the Defendants’ pleadings, evidence aliunde the Release Deed is set up to exist. It is illogical to fasten upon the Plaintiff the prescience that the Release Deed would inexorably be introduced in evidence on a future date. Therefore, in our view the period of limitation would start to run from the date when the Defendants actually presented the said document for the purpose of its reception or inclusion as their evidence. It is on this dialectic that we conclude that in fact the perceived delay of more than 6145 days is not actually so, since the Review Petition has been preferred within the period of limitation, the starting point of which rested on the Defendants’ attempt to introduce the Release Deed into evidence. Even if this calculation is incorrect, a catena of rulings requires us to adopt a liberal approach, especially since the Court overlooked the essentiality of the Plaintiff’s impleadment before it. 9. In State of Bihar vs. Kameshwar Prasad Singh, (AIR 2000 Supreme Court 2306), their Lordships were of the opinion that dismissing the appeals would not advance the interest of justice and that it was well settled that the power to condone the delay in approaching the Court had been conferred upon the Courts to ensure substantial justice to parties by disposing of matters on merits. The Defendants’ reliance before us on Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation, (2010 (5) Supreme Court Cases 459) does not actually advance their submission for dismissal of the Review Petition solely on the grounds of delay. The law is enunciated in these words: “14. We have considered the respective submissions. The law of limitation is founded on public policy. The law is enunciated in these words: “14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 15. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justified advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.” 10. It is on this premise that we are of the considered conclusion that the ‘delay’ in filing the Review Petition should be condoned. The Plaintiff was always vitally interested in the legal questions which were canvassed before and ruled upon by the Division Bench in R.F.A.43/1993, and he was precluded from presenting his perspective because he had not been impleaded in the Appeal. In this respect the present Review is intrinsically different to other such motions for the reason that it is always incumbent on the Court to ensure that facility and opportunity is made available to persons interested in the verdict to present their view point. Since the Orders sought to be reviewed came to be passed upon hearing only the Defendants and not the Plaintiff, the party who was vitally affected by the outcome, it must be set aside, even suo moto. In fairness to be learned counsel for the Defendants he has not denied that this would be the rectification required for righting a jural wrong. In fairness to be learned counsel for the Defendants he has not denied that this would be the rectification required for righting a jural wrong. His endeavour is to persuade us that, regardless of the Review being accepted, the opinions of the Division Bench on the conundrum of the admissibility of the ‘Release Deed’ should nevertheless retain their precedential value. We find ourselves unable to accept this argument since the audi alteram partem, rule of natural justice applies to the decisions taken by Court just as much it governs decisions and orders of any Authority. It is not that there are no precedents on the very interesting subject of whether a document or instrument setting up an oral partition can escape the rigours of registration under Section 49 of the Registration Act or the payment of Stamp duty under the Stamp Act. Decisions on this legal nodus have no doubt been discussed by the Trial court, but in our view in a perfunctory manner, since the Trial judge felt fully circumscribed and bound by the Judgment of the Division Bench which we think proper to review. Having reviewed and set aside the Judgment of the Division Bench, we are now called upon to rule on the legality of the decision dated 19.11.2010 of the Trial court pronounced in O.S.No.9670/2005. 11. Learned counsel for the respondent has contended that in the impugned order the Trial Court has come to an independent conclusion vis-à-vis the admissibility or introduction into evidence of the ‘Release Deed’. Secondly, the argument is that the absence of the plaintiff can be disregarded since the forensic discussion and conclusion of the Division Bench was restricted to the document’s admissibility or introduction into evidence and not to its resulting implications; that the consequences which flow from such a conclusion may affect the plaintiff, but not the conclusion per se. We are unable to be persuaded by counsel for the Defendants on either of these submissions. The following opening paragraph containing the reasoning of the Trial Court is reproduced verbatim since it is manifest, that the Trial Court was comprehensively convinced by the conclusions of the earlier Division Bench, which we have just reviewed. We are unable to be persuaded by counsel for the Defendants on either of these submissions. The following opening paragraph containing the reasoning of the Trial Court is reproduced verbatim since it is manifest, that the Trial Court was comprehensively convinced by the conclusions of the earlier Division Bench, which we have just reviewed. “Point No.1: The Hon’ble High Court, through a Division Bench, has in fact considered the very document and interpreted the same to hold that the said deed is a record of past event and does not come within the ambit of Sec.17(1)(b) of Registration Act, 1908. The Hon’ble High Court has considered every word of the said document and has ultimately held that it was a document, evidencing severance of interest and therefore, has held that the same does not require any registration. This Court, being the subordinate court, can not interpret in a different way under the hierarchy of courts is obvious. The contention that the plaintiff was not a party to the said appeal, itself is not a ground to differ from the Hon’ble High Court. In my view, whether there was presence or absence of present plaintiff, it would have made no difference to the said conclusion of Hon’ble High Court; as it was a considered opinion of Hon’ble High Court based on facts and interpretation of document. The conclusion was not pertaining to execution of the document, but it was pertaining to the nature of the document and therefore, I do not think the said canvass is consumable by this Court. Thereafter, the Trial Court has conducted a facile and formal analysis of the precedents cited before him. The impugned order is bereft of necessary discussion and reasoning. The Trial Court merely stated that the cited cases do not apply or, perfunctorily that the factual matrix was not similar. 12. We also find it difficult to accept that any decision rendered by a Court can be wholesome and complete without the assistance rendered by each of the concerned Advocates. It has been said so often, but yet bares reiteration, that sound judgments are the product of well researched and ably argued submissions from the Bar. For the three-wheeled chariot of justice to move fluently, the presence of both parties to the lis is unavoidably essential in order that the third, the Judge, settles the conflict. It has been said so often, but yet bares reiteration, that sound judgments are the product of well researched and ably argued submissions from the Bar. For the three-wheeled chariot of justice to move fluently, the presence of both parties to the lis is unavoidably essential in order that the third, the Judge, settles the conflict. Therefore, even if it were merely a forensic finding that came to be rendered by the Division Bench, it loses its precedential value since the plaintiff had not been heard in the matter. 13. It is in this background that, we shall now deliberate upon the arguments of the learned counsel for the parties. We shall analyse all the citations mentioned in the impugned order and also cited before us. In the context of the Judgment of the Trial Judge, we would like to suggest that every analysis of the law should either commence or culminate with the decisions of the highest hierarchical Court. The Trial Court has jumped from one decision to another regardless of whether it is of the Apex Court or of a Bench of the jurisdictional High Court or of a different High Court. Judgments must read as well structured and cohesive essays. We shall commence consideration by reproducing the twelfth paragraph from Tek Bahadur Bhujil vs Debi Singh Bhujil, ( AIR 1966 SC 292 ): “Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangements is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.” 14. In Kale vs. Deputy Director, ( AIR 1976 SC 807 ), the Apex Court has inter alia, clarified, “that registration would be necessary only if the terms of the family arrangements are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(1)(b) of the Registration Act and is, therefore, not compulsorily registrable;” 15. In Bakhtawar Singh vs. Gurdev Singh & another, ( 1996 (9) SCC 370 ), their Lordships applied the ratio of Roshan Singh vs. Zile Singh ( AIR 1988 SC 881 ) and enunciated the law in these words: “The memorandum Ex.A-1 recording past partition, put on record before the Rent Controller was not pronounced upon and, was brushed aside by the appellate authority holding that it could not be seen in the absence of registration even though the decision of this Court in Roshan Singh vs. Zile Singh stood cited, in which it was held that a subsequent memorandum recording past oral partition as a family settlement was not required to be registered. Memorandum, Ex.A-1 when read, substantially discloses that the shop in dispute stood fallen to the share of the appellant. Besides two brothers of the appellant appeared as AW-2 and AW-5 and supported it. It records the factum of the past but for certainty the brothers had chosen to straighten things w.e.f. 23-02-1982 and the said notice Ex.A-4 to the respondent was to the effect that the appellant was entitled to receive rent w.e.f. 01-03-1982. The Rent Controller did not fully grasp the legal situation in the matter and wrongly denied eviction of the respondent on that score. The appellate authority as also the High Court committed the same error.” 16. The Rent Controller did not fully grasp the legal situation in the matter and wrongly denied eviction of the respondent on that score. The appellate authority as also the High Court committed the same error.” 16. We shall now refer to the enunciations of the Full Bench of the Allahabad High Court in Ramgopal vs. Tulshi Ram, (AIR 1928 ALL 641), close to a century ago, that (a) an oral family arrangement is legal; (b) if it is spelt out in a document and the market value of the properties covered by it exceeded Rs.100/-the document becomes compulsorily registrable in the absence of which it was inadmissible in evidence. 17. A Division Bench of this Court held, in Umakant Rao vs. Lalitabai, ( 1988 (2) Kar.L.J. 155 ), that although a document effecting a partition was inadmissible because of noncompliance with Section 34 of the Stamp Act and Section 49 of the Registration Act, it could nevertheless be adverted to firstly, for the purpose of proving severance from the HUF, and secondly, for the determination of the extent or details of the movable and immovable properties then belonging to the HUF. In K. Amarnath vs. Puttamma, (ILR 1999 Kar 4634), this Court highlighted a salient difference between Section 34 of the Stamp Act and Section 49 of the Registration Act, namely, that an infraction of the former by insufficient stamping has the consequence of prohibiting the document from being considered; whereas non-compliance of Section 49 has diverse implications – (a) the document can be considered in a suit for specific performance; (b) the document has evidentiary value to prove part performance of a contract for the purposes of Section 53A of the Transfer of Property Act; and (c) it can be read as evidence of a collateral transaction which is not itself required to be executed by a registered instrument provided always, that the instrument is, at the relevant time, duly stamped. 18. A learned Single Judge in K.K. Puri vs. Krishna Puri, (AIR 2008 P & H 23) applied the Kale dictum to the facts of the case and since the document in question was an affidavit containing asseverations of the intentions of the family to relinquish their rights in favour of their mother, it did not create any right and therefore was admissible in evidence. 19. 19. Single Benches of different High Courts have opined that, it is impermissible for one member of a joint family to ‘release’ or ‘relinquish’ his share in favour of another member of his family. Such a transaction would partake of a nature of a transfer of property, regardless of whether it was merely for love and affection or for pecuniary consideration. It appears to us that failure to preserve this perspective would inexorably result in legally untenable conclusions being arrived at. Let us take the example of a joint family comprising five members in which one of them simply relinquishes his share in the family properties; his share would percolate in equal measure to the other four members. This would not amount to a transfer of property, but would be in the nature of a release or relinquishment. If consideration in excess of Rs.100/-is received by the member relinquishing his share, and this transaction is contemporaneously reduced to the form of a document, the document must be stamped as well as registered to avoid the consequence of its inadmissibility in evidence. Once the Court is satisfied that a memorandum contains the terms on which a partition of joint family property had already taken place, such document in fact is a recording of past transactions, an oral partition which had already been completed; the document would be received by it in evidence. It will justify reiteration that, a release deed or a relinquishment deed cannot be in favour of one or more members of a family to the exclusion of others. In other words, the releaser or relinquishor must simply walk away from or extinguish all claims to the family properties. Otherwise the transaction would partake the nature of a transfer necessarily requiring compliance of the Stamp Act as well as the Registration Act. In the instant case, the importance of the Defendants’ father having executed properly stamped and duly registered Release Deed with his brother Om Prakash and Partition Deed with his other brother Mani, cannot be ignored. Why then did he fail to follow the same legally sound documentation with the remaining brother, the Plaintiff, cannot but lead to an adverse inference. 20. We realize that the reproduction of the affidavit dated 15.4.1976 allegedly sworn by the Plaintiff Sambasivan, and the alleged Release Deed dated 5.5.1976 will lead to prolixity of this Judgment. Why then did he fail to follow the same legally sound documentation with the remaining brother, the Plaintiff, cannot but lead to an adverse inference. 20. We realize that the reproduction of the affidavit dated 15.4.1976 allegedly sworn by the Plaintiff Sambasivan, and the alleged Release Deed dated 5.5.1976 will lead to prolixity of this Judgment. Despite this, we think it necessary to do so, for a complete comprehension of the documents to be construed by us. “AFFIDAVIT I. D. Sambasivan, aged about 25 years Son of Late N. Doraiswamy Mudaliyar, residing at No.3, Lakshmanapuri, Near City Railway Station, Bangalore-9 do hereby solemnly affirm and state as follows:- 1. My eldest brother Sri D. Dhanakoti and I were hitherto members of a Joint Hindu Family and I was residing with him. After the death of my father Sri N. Doraiswamy Mudaliar, my eldest brother Sri D. Dhanakoti brought me up with all love and affection and educated me. When my father died, I was a minor. My eldest brother Sri D. Dhanakoti, after the death of our father, improved the business by his personal hard work. My other brothers Sri D. Omprakash an Sri N.D. Mani separated themselves from us long back after taking their due shares. 2. Now I also want to become separate from my eldest brother Sri D. Dhanakoti and expressed my said desire to him. I asked him to pay me a sum of Rs.1,00,000/-(One lakh) towards my share. He has magnanimously agreed to pay me the said amount of Rs.1,00,000/-and also was pleased to perform my marriage by spending a sum of Rs.50,000/-for which I have agreed and appreciated the kindness of my eldest brother, Sri D. Dhanakoti, who has been looking after me just like my father and who is very much interested in my progress. 3. I have received the sum of Rs.1,00,000/-(One lakh) from my brother Sri D. Dhanakoti towards my share this day cheque drawn in my favour on the Karnataka Industrial Cooperative Bank Ltd., City Branch, Tank Bund Road, Bangalore-9 and I will receive another sum of Rs.50,000/-from him within a period of six months from this day towards my marriage expenses, as I have no intention to marry now, but I want to settle in life first. My sister-in-law Smt. D. Rajalakshmi has given me a building site out of love and affection towards me. 4. My sister-in-law Smt. D. Rajalakshmi has given me a building site out of love and affection towards me. 4. I have no claim, demand, share or interest from this day in any of the joint family moveable and immovable properties and in the industry M/s. Eswara Iron Foundry or in the book debts, or goodwill of that concern. From today onwards, I have separated from the Joint Family of my brother Sri D. Dhanakoti and me and I have no claim whatsoever hereafter in the business of M/s. Eswara Iron Foundry the goodwill, book debts and all other outstandings and all the joint family moveable and immovable properties and I have relinquished all my rights, title, claim, demand and interest in all the said properties in favour of my eldest brother Sri D. Dhanakoti. My eldest brother Sri D. Dhanakoti is from hereafter entitled to deal with all those properties in any manner he likes. I am also not liable to discharge any of the debts due and payable by the joint family and my eldest brother alone will be liable for all those debts of joint family including the ones payable by M/s. Eswara Iron Foundry. I will also execute a deed of release in favour of Sri D. Dhanakoti. Bangalore Dated 15.4.1976 Deponent (D. SAMBASHIVAN) Identified by Advocate Sworn to before me” The second document which we have to peruse and construe reads thus: “RELEASE DEED THIS DEED OF RELEASE executed on the Fifth day of May One thousand nine hundred seventy-six (5-5-1976) BY SRI D. SAMBASIVAN, aged about 25 years, son of late Sri Doraiswamy Mudaliyar, No.3, Lakshmanapuri, near City Railway Station, Seshadri Road, Bangalore-9, hereinafter called the RELEASOR of one part, which term shall mean and include wherever the context so requires or admits, his heirs, legal representatives, Executors, Administrators and assigns of the one part, IN FAVOUR OF SRI D. DHANKOTI, aged about 45 years, son of late Sri N. Doraiswamy Mudaliyar, No.3, Lakshmanapuri, near City Railway Station, Seshadri Road, Bangalore-9, hereinafter called the RELEASEE of the other part, which term shall mean and include wherever the context so requires or admits, his heirs, legal representatives, executors, administrators and assigns; WITNESSTH AS FOLLOWS 1. WHEREAS the Releasor and the Releasee were members of a joint Hindu family being the coparceners thereof and residing together ever since the birth of the Releasor till 15-4-1976 and WHEREAS since 30-9-1952 after the death of Sri N. Doraiswamy Modaliyar the father of the Releasor and Releasee, the Releasor was brought up, educated, taken care of, and looked after by the Releasee with all love and affection till 15-4-1976 and WHEREAS in the month of April 1976 the Releasor wanted to become separate and to live independently and had expressed his intention and desire to go out of the joint family and to become divided in status and to do business separately from the Releasor, by taking a sum of Rs.1,50,000/-(Rupees One laksh and fifty thousand only) from the joint family assets towards his share of the joint family assets and to release himself from the joint family consisting of himself and the Releasor, and to release all his rights, title, interest, claim and demand whatsoever he had in the joint family assets i.e., moveable and immoveable properties, owned and possessed jointly by the Releasor and the Releasee, in favour of the Releasee. ACCORDINGLY THESE PRESENTS WITNESSETH AS FOLLOWS: 1. The Releasor has become separated from the joint family consisting of himself and his brother Sri D. Dhanakoti the Releasee and has become divided in status and has gone out of the joint family consisting of himself and the Releasee from 15-4-1976. 2. The Releasor has agreed to take for his share a sum of Rs.1,50,000/-(Rupees One lakh, fifth thousand) only from the joint family assets for having become divided and separated himself from the joint family. 3. The Releasor has already received a sum of Rs.25,000/-(Rupees Twenty-five thousand) only through Cheque No.184751 dated 15-4-1976 drawn in his favour on the Karnataka Industrial Co-operative Bank, Tank Bund Road, Bangalore-9, by the Releasee and will receive another sum of Rs.75,000/-within a period of one month from this day from the Releasee. 4. The Releasor will receive the balance of amount of Rs.50,000/-(Rupees Fifty thousand) only from the Release within a period of six months from this day. 5. 4. The Releasor will receive the balance of amount of Rs.50,000/-(Rupees Fifty thousand) only from the Release within a period of six months from this day. 5. The Releasor will not claim anything else from the erstwhile joint family of the Releasor and Releasee, except the aforesaid total sum of Rs.1,50,000/-towards his share, either from the Releasee or from the joint family assets owned and possessed till 15-4-1976 by the erstwhile joint family consisting of the Releasor and the Releasee and hold by them jointly. 6. The Releasor has relinquished all his right, title, interest, demand or claim whatsoever he has or had in the joint family movable and immovable properties jointly owned and possessed by the Releasor and the Releasee up to 15-4-1976 and that will be acquired, owned and possessed by the Releasee henceforth. 7. The Releasor hereby assures the Releasee that the Releasee is the full, sole and absolute owner of all the properties held by the erstwhile joint family till 15-4-1976 and all other properties that may be hold, acquired and possessed by the Releasee and that the Releasee has absolute power to deal with all those properties in any manner he likes. 8. The Releasor will not be liable to pay any outstandings or debt due and payable by the erstwhile joint family to any person up to 15-4-1976 and all other debts that may be contracted by the Releasee after that date. 9. The Releasor has also sworn to an affidavit on 15-4-1976 confirming his separation from the joint family of the Releasor and the Releasee and has handed over the said affidavit to the Releasee in proof thereof. 10. The Releasor also undertakes to do or execute or cause to be done or executed any thing, act, document, letter or deed in favour of the Releasee at any time at the cost of the Releasee for further confirming the exclusive, absolute and sole right, title, interest and ownership in the Releasee of the properties held and possessed by the Releasee and for better assuring exclusive title of the Releasee thereto. IN WITNESS WHEREOF the Releasor has affixed his signature to this Deed of Release on the day and year first above written. WITNESSES: RELEASOR" 21. The Release Deed has not been registered. IN WITNESS WHEREOF the Releasor has affixed his signature to this Deed of Release on the day and year first above written. WITNESSES: RELEASOR" 21. The Release Deed has not been registered. Had this formality been complied with, the additional advantage would have been that it would have become difficult for the Plaintiff to assert that it is a forgery or fabrication. This is one additional and obvious advantage in registering every document. If a document does not bear the requisite stamp duty, the Registrar is duty bound to impound it; this is usually the reason why registration is avoided. A conjoint reading of affidavit dated 15.4.1996 and so called ‘Release Deed’ dated 5.5.1976 presents the following factual matrix. The Plaintiff decided to separate from his eldest brother Dhanakoti on 15.4.1976 as the affidavit speaks in the present tense. The affidavit recites the receipt of Rs.1 lakh (Rupees one lakh) from Dhanakoti leaving outstanding a sum of Rs.50,000/-payable within six months. Paragraph 4 records the simultaneous and contemporaneous satisfaction of all the movable and immovable properties belonging to the joint family. There can be no cavil that so far as the affidavit is concerned, it is with regard to a current and not a past transaction. It also contains an asseveration to the effect that the affiant has “relinquished all my rights”. If only this document called to be construed, there would be no gainsaying that it would require the payment of ad valorem stamp duty for a sum of Rs.1,50,000/-as against Rs.5/-stamp paper on which the affidavit has been typed; the ‘affidavit’ would also require compulsory registration. It seems to us that it is legally incongruous and impermissible to take into contemplation the subsequent document dated 5.5.1976, regardless of the nomenclature used in the title, if the first document is itself in the nature of a partition deed; the execution of the subsequent document would not render the first document as superfluous unless the second one was properly stamped and duly registered. Ergo, a memorandum cannot be executed or be read to overcome the legal imperfections of the earlier document actually effecting the partition. It requires to be emphasized that there is only difference of three weeks between the alleged execution of the two documents. This is not a ‘part transaction’. Ergo, a memorandum cannot be executed or be read to overcome the legal imperfections of the earlier document actually effecting the partition. It requires to be emphasized that there is only difference of three weeks between the alleged execution of the two documents. This is not a ‘part transaction’. Whereas, one postulates a payment of Rs.1 lakh towards the petitioner’s share in the joint family property together with Rs.50,000/-towards his marriage expenses, the second one speaks of composite settlement of Rs.1,50,000/-as consideration for the petitioner’s release of all his rights in the joint family. Significantly, the affidavit narrates the receipt of Rs.1 lakh whilst the second document mentions only the prior payment of Rs.25,000/-on 15.04.1976 and the payment of Rs.75,000/-within one month of 5.5.1976 and the balance payment of Rs.50,000/-within six months of 5.5.1976. Moreover, even the language in the so called Release Deed dated 5.5.1976 is in the present tense. That is palpably obvious that the affidavit was actually not acted upon for the reason that substantial payments were to be made after the execution of the second document. 22. Viewed in any manner therefore, the document dated 5.5.1976 is not a memorandum of family settlement recording past settlement of family affairs. Even the Release Deed is fundamentally a partition deed and should have borne ad valorem stamp duty. We need to clarify one aspect of the case namely that although there were several coparceners, by 5.5.1976 only two remained namely, the petitioner and Dhanakoti. If no consideration was to be tendered and received, then it was conceivable that the transaction may have been a pure and simple relinquishment. That is not so as the document itself is replete with reference to payment or purchase price for the petitioner’s share. Since the consideration exceeded Rs.100/-, it statutorily and compulsorily required to be registered. Furthermore, the document postulates the release or transfer of the shares in the HUF properties of one coparcener to the other. So far as this document is concerned, we fail to envisage any circumstance in which it can be used for the collateral purposes. As clarified by the Supreme Court, it is possible that a lease deed may contain recitals of a partition and in the context of the Lessor’s ownership of the demised premises; such recitals pertaining to the partition could be used for collateral purposes. As clarified by the Supreme Court, it is possible that a lease deed may contain recitals of a partition and in the context of the Lessor’s ownership of the demised premises; such recitals pertaining to the partition could be used for collateral purposes. Viewed from every possible angel therefore, we are unable to uphold the dialectic of the Trial Court in the order dated 19.11.2010, overruling the objections of the Plaintiff pertaining to the admissibility of the so called ‘Release Deed’. The ‘Release Deed’ or for that matter, even the Affidavit which is essentially a Partition Deed, can be exhibited and read in evidence only if it complies with the rigours of the Stamp Act as well as Registration Act. 23. No other argument has been raised before us including the maintainability of the present writ petition. It is also relevant to clarify that the documents are to be ‘marked’ for the purposes of identification only. Once a document has to be proved in accordance with law, and if it is admissible in evidence, it is given an ‘exhibit’ number. If there is a contest as to a document’s reception into evidence in any litigation on one or other ground, it is advisable for the Trial Court to immediately decide that question so that ramifications of faulty exhibition are avoided. Keeping the present case in perspective, if the ‘Affidavit’ or ‘Release Deed’ are allowed to be exhibited by the Defendants, they may find it probatively superfluous to introduce any other evidence. However, if disallowed, aliunde evidence can be led. 24. We have already condoned the delay in filing the Review and thereafter have allowed it. The Writ Petition is also allowed. The affidavit as well as the Release Deed cannot be exhibited in the circumstance obtaining in present case and cannot be received in evidence. Parties to bear their respective costs.