Bhaskarabhotla Padmanabhaiah and Others vs B. Lakshminarayana and Others

Anantanarayana Ayyar, J.—This is a petition to revise the order of the Munsif-Magistrate, Secunderabad in O. S. No. 31/1/1957 on his file holding that the document produced by the plaintiff when he was deposing as P. W. 1 in that suit was not admissible in evidence on the ground that it was an instrument of partition and was not duly stamped and not registered.

Two points have been argued before me by the learned Advocate for the plaintiff. They are as follows:

a. that the document is not an ''instrument of partition'' coming under Sec. 2 (15) of the Indian Stamp Act; and

b. that, in any case, even if it is an instrument of partition, it is admissible in evidence for proving division in status.

(a) Point No. 1: In Gojineni Bapayya Vs. Gojineni Ramakrishnayya and Others, it was held by the Madras High Court that where unregistered partition lists are sought to be put in for the purpose of proving a partition between the parties the question which the court has to decide is whether those documents constituted the bargain between the parties or whether they were merely the record of an already completed transaction. Therein, it was also held that the question in such a case was whether there was a sufficient dissociation of the transaction from the documents and that the matter would not depend on the interval of time though where the interval is long, the dissociation may be more readily inferred. This view has been affirmed and followed by decisions of this High Court.

In Board of Revenue Referring Officer Vs. Poosarla China Appalanarasimhulu a Full Bench of this Court held that a document which gives the joint properties owned by the co-owners and allots to each one of them the properties that have fallen to his share, and is duly signed by the parties to it, and attested by witnesses, is a document whereunder co-owners of joint properties divide their properties in severalty, and is an instrument of partition within the meaning of Sec. 2 (15) of the Indian Stamp Act.

In Veerappan alias Palaniappan Chetti Vs. Mylai Udayan, it was held that the question as to whether a document was an instrument of partition coming under S. 2 (15) of the Stamp Act or whether it was merely a memorandum of partition which did not come under that provision was a pure question of fact which had to be decided on a perusal of the actual document. In the present case, the document contains the following features:

a. The document itself is called Farkathanama (Partition deed).

b. The document does not mention any previous partition as having taken place.

c. In the plaint itself, the cause of action was mentioned as having arisen on 31-10-1928 when the partition took place. The date of the document is 31-10-1928.

d. The document is signed by the parties and attested by witnesses.

I have also carefully perused the document. The learned District Munsif-Magistrate has considered and discussed the contents of the document and declared that it was ''an instrument of partition'' with reference to various clinching and decisive features in it. I find that the learned Munsif-Magistrate has rightly decided the question of fact and held that it was an instrument of partition within the meaning of S. 2 (15) of the Indian Stamp Act

(b) Point No. 2: In Vatrapu Subbarao alias Pamireddi Subbareddi and Others Vs. Pamireddi Mahalakshmamma, it was held that if a document which requires registration as a partition document is unregistered, it may be used to show division in status though it is inadmissible in evidence to prove the terms of the partition.

The Learned Advocate for the respondent relies on the decision in Ayyakutti Mankondan v. Periaswami Koundan, 30 MLJ 404 (AIR 1916 Mad 709 (1)), which is of the year 1913, wherein it was held that an instrument of partition which was inadmissible for want of registration could not be used even for the purpose of proving division in status. But the above decision as well as Pothi Naicken v. Nagam Naicker, 30 Mad LJ 62 : (AIR 1917 Mad 77 (FB)) which was to the same effect were considered by Jackson, J. as against other decisions which were to the contrary i.e. Gopayya v. Krishnayya, AIR 1923 Mad 160 (1) and Atluru Saraswatamma Vs. Atluru Paddayya and Others, wherein it was held that the unregistered partition document was capable of being received in evidence to prove division in status. On a consideration of those decisions, the learned Judge (Jackson, J.) held in Veerappan alias Palaniappan Chetti Vs. Mylai Udayan, as follows at P 1098.

In my opinion, if the document is filed on the strict understanding that it must not evidence any transaction affecting immovable property, its scope in the majority of cases will be very small. At the most it will evidence an intention to divide............... All that is admissible is the heading list of partition as a result of award passed by panchayatdars on 12th August 1918 in favour of Mayileri Udayan, son of etc. From this no doubt it may be inferred that there was an intention to divide at this date. For evidence of actual division the rest of the document would be necsssary,........ but that portion evidences a transaction affecting immovable property and being unregistered is inadmissible.

Subsequently, in China Surya Rao v. Suryachandra Rao, AIR 1937 Mad 633 it was held that unregistered partition lists which were required by law to be registered under S. 17 were not admissible in evidence by virtue of Sec. 49 of the Act for proving the necessity for execution of a promissory note which was concerned in that case. But, there the question did not arise as to whether it was admissible for the purpose of proving division in status and what had to be proved there was the terms of the partition.

The decision in Veerappan alias Palaniappan Chetti Vs. Mylai Udayan, was of the a Division Bench of the Madras High Court which came to the conclusion after considering earlier decisions on the point including the decision in 30 Mad LJ 404 : (AIR 1916 Med 709 (1)). Therefore, the contention that the document can be used for proving the division in status though it is not admissible for proving the actual partition appears to be good law and tenable.

In this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in AIR 1946 51 (Privy Council) their Lordships of the Privy Council held that the words ''for any purpose'' in S. 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms.

In the result, I agree with the learned Munsif-Magistrate that the document is ''an instrument of partition'' under Sec. 2 (15) of tile Indian Stamp Act and it is not admissible in evidence because it is not stamped But I further held that if the document becomes duly stamped, then it would be admissible in evidence to prove the division in status but not the terms of the partition. To this extent, I allow the revision petition. In the circumstances of the case, I direct each party to bear his own costs.