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2024 DIGILAW 741 (AP)

D. S. Yasoda v. M. K. Ponnuswamy

2024-07-04

KIRANMAYEE MANDAVA

body2024
ORDER: KIRANMAYEE MANDAVA, J. 1. The Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 14.02.2020 in O.S.No.151 of 2011 on the file of the III Additional District Judge, Tirupati. 2. Vide the order under Revision, an unregistered deed of declaration of partition deed was received in evidence for collateral purposes. The petitioner herein filed suit against the respondents herein for partition of plaint schedule properties and for separate possession. When the suit was fixed for evidence of the 2 nd defendant, an unregistered deed of declaration of partition dated 25.03.1993 was sought to be marked on behalf of the 2 nd defendant, upon an objection being made by the plaintiff for marking of the same, an application was filed by the defendant to send the document for impounding. The document was sent to the sub-registrar for collection of stamp duty and after collection of the stamp duty the document was sent to the court. The 2 nd defendant filed his chief affidavit. The plaintiff has taken an objection for marking of the subject document, stating that since the subject document is an unregistered document, the same is hit by the provisions of Sections 17 and 49 of The REGISTRATION ACT . The learned Judge, however, by referring to the decisions of this Court and the decision of the Hon’ble Supreme Court, observed that since the stamp duty and penalty were collected by the Registrar, the same is admissible in evidence for collateral purpose. 3. Assailing the same present Revision Petition is filed. 4. Heard Sri T.Sreedhar, learned counsel for the petitioner and Sri K.S.Gopala Krishnan, learned counsel for the respondent. 5. The learned Counsel for the petitioner would contend that having regard to the provisions of Section 35 of The Indian STAMP ACT , 1899 and Section 17 of The REGISTRATION ACT , 1908 the unregistered deed of declaration of partition is not admissible in evidence. 6. It is stated that the petitioner, the 1 st to 4 th respondents, and one Late M.K.Rama Murthy and 8 th to 10 th respondents are the children and legal heirs of late M.N.M Krishnaswamy Mudaliar and they constitute a joint family. 7. The petitioner contends that late M.N.Munuswamy Mudaliar, the petitioner’s grandfather had acquired certain properties and also established business concerns. 7. The petitioner contends that late M.N.Munuswamy Mudaliar, the petitioner’s grandfather had acquired certain properties and also established business concerns. After his demise, the same were managed by the petitioner’s father and her brothers. From out of the joint family funds, properties were acquired. It is contended that as per the provisions of Section 6 of The Hindu SUCCESSION ACT , 1956, the plaintiff, by birth, becomes the coparcener of the joint Hindu family, and she will have the same coparcenary rights in the coparcenary property as the other male coparceners would have had in the property. It is contended that since the properties are ancestral and were acquired by utilising the funds of the joint family, the petitioner/plaintiff and the 8 th to 10 th defendants have equal rights in the plaint schedule properties. It is further contended that since the brothers and sisters did not accede to her request to partition the plaint schedule properties by metes and bounds into equal shares, she had filed the subject suit seeking partition of the properties. 8. The learned counsel for the petitioner, further contends that to defeat the rights of the petitioner/plaintiff, the defendants have sought to mark an unregistered document to be received in evidence. On an objection raised by the petitioner herein, the same was impounded and after payment of stamp duty and a penalty the same was sought to be marked. And in spite of the objection raised by the petitioner herein, the learned Judge marked the same to be exhibited in evidence, for collateral purposes. The learned counsel, relying on the decision of the High Court of Madras in the case of Ponnusamy Vs. Nataraj , 2017 SCC OnLine Mad 32648 , contends that the unregistered document cannot be marked in evidence even for a collateral purpose. In the facts of the case, the plaintiff, being the daughter of M.N.M.Krishnaswamy Mudaliar as a coparcener, has equal rights in the joint family properties. The learned counsel further contends that only to defeat the rights of the petitioner, the subject document is brought into existence and contends that the said document excludes the rights of the petitioner conferred under Section 6 of The Hindu SUCCESSION ACT , 1956. 9. The learned counsel further contends that only to defeat the rights of the petitioner, the subject document is brought into existence and contends that the said document excludes the rights of the petitioner conferred under Section 6 of The Hindu SUCCESSION ACT , 1956. 9. The learned counsel appearing for the respondents contends that a partition was effected in respect of the plaint schedule properties as long back as on 01.04.1992, and the same was reduced into writing through the subject document of Deed of declaration of Partition dated 25.03.1992. And since the stamp duty and penalty was already paid on the document for collateral purposes viz., severance of status, the same can be received in evidence. He relying on the decision of this Court in C.R.P.No.4766 of 2016 contends that to the limited purpose, to see if there is in any severance in the joint family status, the subject document can be exhibited in evidence. 10. He relying on the decision of this Court in C.R.P.No.4766 of 2016 contends that to the limited purpose, to see if there is in any severance in the joint family status, the subject document can be exhibited in evidence. 10. Considered the rival submissions: Section 17 of The REGISTRATION ACT , 1908 as under: “ 17.Documents of which registration is compulsory.- (1)The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian REGISTRATION ACT , 1866, or the Indian REGISTRATION ACT , 1871, or the Indian REGISTRATION ACT , 1877, or this Act came or comes into force, namely:- (a)instruments of gift of immovable property; (b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e)non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property” And Section 49 of The REGISTRATION ACT , 1908 reads as under: “ 49.Effect of non-registration of documents required to be registered.- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 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 of 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 (4 of 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 (3 of 1877) [* * *] or as evidence of any collateral transaction not required to be effected by registered instrument.] 11. In a suit for partition, the principle of marking an unregistered partition deed, for collateral purpose of establishing the severance in status, as contended by the learned counsel for the respondent and as observed by the learned Judge, would apply only when all the members of the joint family/coparceners are parties to the unregistered partition deed. In the present case, the plaintiff and her sisters who are also claiming to be coparceners of the joint family, are not appeared to have been included in the subject unregistered partition deed, which is sought to be marked in the suit. This Court is of the considered view that an unregistered deed of declaration of partition, which excludes the other coparceners to claim their share in the coparcenary property, cannot be received in evidence even for the collateral purpose of establishing “severance in status”, although the stamp duty and penalty have been effected. The principle of law as laid down by full bench of this Court in the case of Chinnappareddigari Peda Mutyala Reddy Vs. Chinnappareddigari Venkata Reddy and others , AIR 1969 AP 242 is distinguishable from the facts of the present case. In the said case the plaintiff filed suit for partition of the joint family properties. The defendants claimed that there was a partition between plaintiff and defendant fortnight before the filing of the suit and that and the same was reduced in to writing by way of three lists. One of such lists was contended to be given to the plaintiff identifying the properties that fell to his share and the other two lists which identifies the properties that fell to the share of the defendants were sought to be marked. Under the circumstances on an objection being taken by the plaintiff for marking of the unregistered partition list, the court observed that the unregistered partition deed can be accepted to be received in evidence, for collateral purpose of “severance in status”. The principle laid down in the said decision would not apply to the present facts of the case, in as much as the plaintiffs in the present suit have not been shown as parties to the unregistered deed of partition. Similarly, the decision relied upon by the learned counsel for the respondents in C.R.P.No.4766 of 2016 would not apply to the facts of the present case. 12. Similarly, the decision relied upon by the learned counsel for the respondents in C.R.P.No.4766 of 2016 would not apply to the facts of the present case. 12. A document that is compulsorily registerable in terms of the provisions of Section 17 (1)(b) of The REGISTRATION ACT , 1908, and if the same is not registered, the same cannot be received in evidence as provided under Section 49 of The REGISTRATION ACT , 1908. I am of the considered view that, in the facts of the case, the subject document, for the reasons mentioned above cannot be received in evidence, even for a “collateral purpose”. 13. Accordingly, the Civil Revision Petition is allowed and the order under Revision is set aside. There shall be no order as to costs. As a sequel, interlocutory applications, pending if any, shall stand closed.