Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 56 (ORI)

Amiya Kumar Biswasray v. Dillip Kumar Biswasray

2015-01-28

SANJU PANDA

body2015
JUDGMENT : Sanju Panda, J. 1. Petitioner in this application has challenged the order dated 6.9.2011 passed by learned Civil Judge (Sr.Divn.), Paralakhemundi in C.S. No. 41 of 2009 rejecting an application to impound Ext.9 (deed of partition) filed by the plaintiff as required stamp duty has not been paid. The facts leading to the present case are as follows:- The opposite party No. 1 as plaintiff filed the suit for partition. The present petitioner is the defendant No. 3, brother of the plaintiff. In the plaint it was specifically pleaded that there was an oral family arrangement-cum-partition among the plaintiff and the defendants in respect of all the properties including the suit schedule properties of the deceased father Narendranath Biswasray. The four brothers, the widow mother and sisters have given their consent to the said arrangement. Subsequently the same was reduced to writing on 25th March, 2000 for the sake of convenience and to avoid further complications and litigations. Accordingly the parties are in peaceful possession of the property. However cause of action arose when defendant No. 3 threatened and made some overtact previous year for which plaintiff apprehended danger filed the suit in the year 2009 for declaration as per the said family arrangement and for permanent injunction in respect of the property allotted to him which was described in the suit schedule. The defendant No. 3 filed his separate written statement. He has also pleaded that plaintiff and defendant Nos. 1 and 2 conspired together due to illness of the mother along with the help of the elder son-in-law of the family to deprive him an equal share. Accordingly with secret plan and conspiracy they drafted a document and representing that to fulfill wishes of the ailing mother for family peace postponed the actual partition in metes and bounds. The defendant No. 3 signed on the said document as required to be produced and shown to the ailing mother. The document was taken away before he could read the contents of the same. A copy of the same has not been given to him till date. Thus, the alleged family settlement deed dated 25.3.2000 is out and out a product of fraud and misrepresentation and also can never be termed as a deed of partition as the plaintiff calls it in course of his plaint. A copy of the same has not been given to him till date. Thus, the alleged family settlement deed dated 25.3.2000 is out and out a product of fraud and misrepresentation and also can never be termed as a deed of partition as the plaintiff calls it in course of his plaint. He has also alleged that the deed of partition-cum-family settlement not acceptable for want of registration. 2. After pleadings are completed the parties have adduced their evidence. Plaintiff has filed his evidence on affidavit and he has produced the said deed which was marked as Ext.9 without any objection. The plaintiff has also pleaded at paragraph four of the plaint regarding an oral family arrangement-cum-partition among the parties in respect of all the properties. The suit property was allotted to the plaintiff and defendants were allotted with other properties towards their share in the said arrangement. Plaintiff as P.W.1 at paragraph-11 of his evidence deposed that oral family arrangement was made in April, 1998 and same was reduced to writing on 25th March, 2000. The scribe of the said document was examined as P.W.2. The defendant No. 3 has cross-examined the said witness on 31st March, 2011. Thereafter the application was filed on 16th August, 2011 under Sections 33 and 38 of the Indian Stamp Act on behalf of the defendant No. 3 to impound the document and to call upon for assessment of the stamp duty payable thereof with penalty and for recovery of the same. Plaintiff filed his objection and contended that the nature and true purpose of a document has to be determined with reference to the terms of the document which express the intention of the parties. The title or caption or the nomenclature of the instrument/document is not determinative of the nature and character of the instrument/document. Ext.9 is a family arrangement in corroboration in the pleading of the plaint regarding an oral family arrangement-cum-partition which was made in April, 1998 and it was reduced to writing on 25.3.2000. The court below after hearing the parties passed the impugned order held that Ext.9 needs no compulsory registration as after death of the father, plaintiff and his brothers have made arrangement to possess the properties as per their convenience. The court below after hearing the parties passed the impugned order held that Ext.9 needs no compulsory registration as after death of the father, plaintiff and his brothers have made arrangement to possess the properties as per their convenience. The interest over the property was already existed to the parties before creation of the document as parties inherited the same after the death of the father. Hence question of impounding does not arise. 3. Leaned counsel for the petitioner submits that as per Section 33 of the Stamp Act a statutory obligation casts on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. A document tendered in evidence should be duly stamped or should comply with requirements of Section 35 of the Stamp Act, if not stamped properly such a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. In support of his contention he has relied on the decisions reported in A.I.R. 2009 S.C. 1489, Avinash Kumar Chauhan V. Vijay Krishna Mishra, AIR 2008 S.C. 1640 , Government of Andhra Pradesh & Others Vrs. Smt. P. Laxmi Devi. He further submitted that Ext.9 is a document incorporating the details of the properties which were partitioned. The said document need be compulsorily registrable as provided under Section 17 of the Registration Act. Since the said document was unregistered document and it was tendered to the court as evidence in compliance of Sections 33 and 35 of the Stamp Act the document liable to be impounded and document is compulsorily required to be registered. In support of his contention he has relied on the decision reported in 79 (1995) C.L.T. 666, Purnabashi Mishra Vrs. Raj Kumari Mishra and another wherein this Court held that partition in a Mitakshra sense may either be only a severance of the joint status without properties being partitioned by metes and bounds or partition may also mean in the ordinary sense, a partition amongst the co-sharers by way of division of properties in question by metes and bounds. Raj Kumari Mishra and another wherein this Court held that partition in a Mitakshra sense may either be only a severance of the joint status without properties being partitioned by metes and bounds or partition may also mean in the ordinary sense, a partition amongst the co-sharers by way of division of properties in question by metes and bounds. In the case of partition of a former nature the document is not compulsorily required to be registered, but in a latter case of partition, because the document evidences allotment of specific properties or parcels of properties to individual coparceners and this is necessarily because of an agreement all the coparceners, such a partition may be effected orally but if the parties reduce the transaction to a formal document and this document is intended to be the evidence of partition by metes and bounds it has the effect of declaring exclusive title of the coparcener in respect of that property which falls to his share and in such a case the document has to be compulsorily registered. 4. Learned counsel appearing for the opposite party No. 1 submits that the plaintiff has filed the suit for declaration of his exclusive right, title, interest and possession over the suit property and for permanent injunction alleging inter alia that there was orally family arrangement-cum-partition among the plaintiff and the defendants for which the suit property was allotted to the plaintiff. Subsequently the said arrangement-cum-partition was reduced to writing to avoid future complicacy. The said fact defendant No. 3 in his written statement alleged that the family settlement deed is outcome of fraud and mis-representation. After examination of some witnesses he has filed the application to impound family settlement deed. D.W.1 who is a party to Ext.9 has also stated Ext.9 is a deed of family settlement therefore, the conclusion of the court below that the document in question is a family settlement/arrangement not required to be registered under Section 17(1) of the Indian Registration Act is correct. D.W.1 who is a party to Ext.9 has also stated Ext.9 is a deed of family settlement therefore, the conclusion of the court below that the document in question is a family settlement/arrangement not required to be registered under Section 17(1) of the Indian Registration Act is correct. In support of his contention he has cited the decision reported in A.I.R. 1966 S.C. 1836, wherein the Apex Court at paragraphs nine quoted the passage Halasbury's Laws of England, 3rd Edition Volume-17 and held that:- "(i) A family arrangement is an agreement between the members of the family for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. (ii) The agreement may be implied from a long course of dealing but it is more usual to embody or to effectuate the agreement in a deed. (iii) The family arrangements are governed by principles which are not applicable to strangers. The Court when deciding the right of the parties under family arrangement should take broadest view of the matter for the interest of the family. The Courts in England as well as in India have made every attempt to sustain a family arrangement other than to avoid it. (iv) In para-11 of the decision it is held that family arrangements are governed by a special equity and will be enforced if honestly made. (v) Considering a number of decisions the Hon'ble Apex Court held in Para-16 of the judgment that the Courts are strongly lean in favour of a family arrangement that brings harmony in the family." In view of the above and since in the present case the plaintiff as well as the defendant Nos. 1 and 2 supported regarding family settlement and parties are in possession of their respective shares having made considerable improvements and defendant No. 3 has constructed his new residential building over the property allotted to him, now with some ulterior motive resile from the same. Family settlement made earlier which was reduced to writing at a subsequent stage need not be required to be registered. Family settlement made earlier which was reduced to writing at a subsequent stage need not be required to be registered. In support of his contention he has cited the decisions reported in A.I.R. 1976 S.C. 807, Kale & Others V. Deputy Director of Consolidation and Others, 2008 (II) O.L.R. (S.C.) 446, Faqir Chand Gulati V. Uppal Agencies Private Limited & another, A.I.R. 2014 Delhi 173, Vikram Singh and another V. Ajit Inder Singh, A.I.R. 2006 S.C. 2488, Hari Sankar Singhania & Others V. Gaur Hari Singhania & Others. 5. In the case of Kale & Others (supra) the Apex Court discussed in general the effect and value of family arrangements entered into between the parties with a view to resolve disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. xx xxx xxx xxx The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. A distinction should be made between a document containing the terms and recitals of a family arrangement made under the documents 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 if therefore not compulsorily registrable. Even if the family arrangement was not registered it could be used for a collateral purpose namely for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement. It would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. It would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. The aforesaid decision of law reiterated by the said Court in the case of Hari Shankar (supra) and considering the case of Kale and others further held that the case of K.K. Modi V. K.N. Modi & others ( AIR 1998 SCW 1166 ) where the court examined that ".......a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been ready acted upon by some members of the family. In the present case from 1989 to 1995 the memorandum of understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoid disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed." Considering the above it was held that technical considerations should give way to peace and harmony in enforcement of family arrangements or settlements. In the case of Vikram Singh (supra) the Court has considered the deed of family settlement which was reduced into writing because it has already been acted upon by parties. Parties acknowledged antecedent title. The deed does not require registration to be admissible in evidence. In the case of Faqir Chand (supra) it was held that title or caption or the nomenclature of the instrument/document is not determinative of the nature and character of the instrument/document, though the name may usually give some indication of the nature of the document. The nature and true purpose of a document has to be determined with reference to the terms of the document which express the intention of the parties. Considering the above position and after going through the materials available on record it appears that the document was already marked as exhibit therefore the contention that it need be compulsorily registrable is not accepted as the parties have already acted upon it. Considering the above position and after going through the materials available on record it appears that the document was already marked as exhibit therefore the contention that it need be compulsorily registrable is not accepted as the parties have already acted upon it. The defendant No. 3 in his written statement at paragraph three stated that the house property and most of the immovable covered by the alleged family settlement deed are all acquired by Narendranath with the aid of the joint coparcenary fund. At paragraph five he has stated that during the year 2000 mother was suffering from various ailments she need longtime treatment. In such circumstances to fulfill wishes of the ailing mother for family peace the plaintiff and defendant Nos. 1 and 2 along with the elder brother-in-law postponed the actual partition in metes and bounds and drafted the document on which defendant No. 3 is to sign as the same is required to be produced and to be shown to the mother who was very sick etc. The defendant No. 3 has already constructed his residential building over the property allotted to him. The document in question was reduced to writing at a subsequent stage reflecting the allotment of share to the parties. As such the document need not be impounded. Trial court shall consider the same in accordance with law in the suit itself. As there is no error apparent on the face of the record this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. Hence the writ petition stands dismissed.