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Madhya Pradesh High Court · body

2017 DIGILAW 779 (MP)

Prakash Chandra Jain v. Vishnu Goyal

2017-06-27

ANAND PATHAK

body2017
ORDER 1. The present petition has been preferred by the petitioner/defendants challenging the validity of the order dated 4.5.2017 passed by Civil Judge, Class-I, Shivpuri whereby, objections preferred by the present petitioners regarding admissibility of partition deed dated 23.7.2002 have been rejected. 2. According to learned counsel for the petitioners, respondent/plaintiff has filed a suit for eviction against the present petitioner on the ground under section 12(1)(a) and (f) of the M.P. Accommodation Control Act, 1951. According to plaint allegations, the respondent/plaintiff received the shop in question in family partition, division of which, was earlier agreed upon orally and later on for memory purpose written down on 23.7.2002. Through the said partition, shop in question has been received by plaintiff’s father and through the will dated 18.10.2002 has come into ownership and possession of present respondent/plaintiff. Present petitioners have filed written statement and contested the claims made by the plaintiff. Case was fixed for evidence. 3. It appears that plaintiff tried to place the family partition deed dated 23.7.2002 in evidence which was objected by present petitioners on the ground of insufficiency of stamp duty over partition deed. According to the petitioners, the said partition deed is not for memory purpose, wherein, oral partition has taken place earlier and to keep the memory of earlier oral partition through the deed, but in the present deed, it appears from the recitals that partition has taken place through instant petition deed and even aspect of Relinquishment is also involved. Thereafter, for all practical purposes, deed dated 23.7.2002 is a partition deed (coupled with relinquishment deed) and, therefore, entails stamp duty else could not be admitted in evidence. 4. Further submission of the petitioners is that unless the partition deed is duly stamped, it cannot be adduced in evidence. He relied upon the judgment rendered by this Court in the matter of Gendabai (Smt.) v. Mulariyabai and others [2000(2) Vidhi Bhasvar 19] and Rukayya Bai v. Munni Bai and another [ 2004(1) JLJ 206 = 2004(2) MPLJ 92 ]. 5. Per contra, learned counsel for the respondent/plaintiff opposed the contentions raised by the petitioners and submits that the partition has already been taken place orally much prior to the execution of deed dated 23.7.2002 and through the deed the terms of partition have been reiterated, therefore, it cannot be assumed that the partition has taken placed on 23.7.2002. 5. Per contra, learned counsel for the respondent/plaintiff opposed the contentions raised by the petitioners and submits that the partition has already been taken place orally much prior to the execution of deed dated 23.7.2002 and through the deed the terms of partition have been reiterated, therefore, it cannot be assumed that the partition has taken placed on 23.7.2002. Further submission of learned counsel for the respondent is that the family partition deed dated 23.7.2002 can be used for collateral purpose. He relied upon the decision of this Court in the matter of Mahila Samiti v. Hola Ram Sindhi [ 2006(2) MPWN 32 ], Suresh Kumar Agrawal and others v. State of M.P. and another [2011(2) MPJR 211], and decision of Chhattishgarh High Court in the matter of Bugga Bai v. Bakrid Khan [2007(III) MPJR-CG 126], and prayed for dismissal of the petition as according to him, trial Court has passed just and proper order. 6. Heard the learned counsel for the parties. 7. Section 35 of the Stamp Act, 1899 gives power to the Court to impound insufficiently stamped document, which reads as under :- “35. Instruments not duly stamped inadmissible in evidence, etc. 6. Heard the learned counsel for the parties. 7. Section 35 of the Stamp Act, 1899 gives power to the Court to impound insufficiently stamped document, which reads as under :- “35. Instruments not duly stamped inadmissible in evidence, etc. - No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that - (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of any instrument insufficiently stamped of the amount required to make up such duty, together with a penalty of Five Rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds Five Rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of a penalty of One Rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (5 of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provisions of this Act.” 8. Similarly, section 49 of the Registration Act, 1908 gives leverage in respect of admissibility of unregistered document for collateral purpose. Section 49 reads as under :- “49. Similarly, section 49 of the Registration Act, 1908 gives leverage in respect of admissibility of unregistered document for collateral purpose. Section 49 reads as under :- “49. Effect of non-registration of documents required to be registered:- No document required by section 17 of by any provision of the Transfer of Property Act, 1882, to be registered shall - (a) Affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence or any transaction affecting such property or conferring such power, unless it has been registered; Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.” 9. Dichotomy between two has been explained and resolved by Hon’ble apex Court in the matter of Avinash Kumar Chauhan v. Vijay Krishna Mishra [ (2009)2 SCC 532 ], wherein their Lordships have explained the scope and purpose of section 35 of Stamp Act, 1899 and 49 of the Registration Act, 1908 and held that there is no prohibition under section 49 to receive an unregistered document in evidence for a collateral purpose, but the document so tendered should be duly stamped or should comply with the requirement of section 35 of the Stamp Act. If an unstamped instrument is admitted for a collateral purpose, it would amount to receiving such a document in evidence for a purpose, unless it is duty stamped or duty and penalty are paid under section 35 of the Stamp Act. The said pronouncement has taken care of earlier pronouncements especially the decision of the Privy Council in Ram Rattan v. Parma Nand [ AIR 1946 PC 51 ]. 10. Perusal of partition deed reflects texture of mixed intention. it appears that it refers oral partition also and intends to divide the property through the said deed also with the trappings of relinquishment. Some clauses in the deed reflect that the partition is taking place through the said deed and it was not agreed upon earlier and some clauses reveal that one of the family members is showing his/her intention to relinquish some part of the property. Some clauses in the deed reflect that the partition is taking place through the said deed and it was not agreed upon earlier and some clauses reveal that one of the family members is showing his/her intention to relinquish some part of the property. Therefore, the deed dated 23.7.2002 becomes a partition deed/relinquishment deed as the case may be because it assigns or extinguishes the rights of family members inter se. Therefore, once the said deed is not the reflection of oral partition then it can only be used in evidence unless duly stamped. 11. Contention of the respondent that the deed is to be used for collateral purpose is answered by the apex Court in the matter of Avinash Kumar Chauhan (supra), therefore, even for collateral purpose, the said benefit cannot be given to the respondent. 12. Resultantly, the petition of the petitioner is hereby allowed and impugned order passed by trial Court dated 4.5.2017 is hereby set aside and objection preferred by the petitioners as defendants is hereby sustained. Trial Court to proceed accordingly. 13. Petition stands disposed of.