K. Pattabiraman vs K. Banumathi and 4 others

First defendant in O.S.No.57 of 1996 on the file of Prl. Subordinate Judge, Virudhachalam, aggrieved by the order in I.A.No.592 of 2000

dated 12.07.2000, has filed the above revision.

The respondents 1 to 4 herein filed civil suit, in O.S.No. 57 of 1996 on the file of Subordinate Judge, Virudhachalam for partition and separate,

possession. The first respondent herein is the brother of the petitioner''s wife and respondents 2 to 4 are his children. The petitioner herein has filed

a written statement and resisted the suit inter alia contending that the suit items had already been apportioned and there is no necessary for the suit.

The plaintiffs have let in evidence. When the petitioner herein - first defendant was in the witness box filed a document purported to be a partition

deed dated 29.8.1978, this was objected by the plaintiffs that it is an unregistered document and could not be admitted. It is the case of the

petitioner that the document could not be registered, since it is only a record of past and present transaction and though not registered, required

stamp duty has been paid. It is also stated that it could be used for collateral purpose. By the impugned order dated 12.7.2000, the learned

Subordinate Judge refused permission to file the said document,, against which the, petitioner filed the above revision.

In spite of service of notice on all the respondents, none of them have chosen to contest the above revision by engaging a counsel.

Heard Mr. N. Mani Narayanan, learned counsel for petitioner.

The only point for consideration is, whether the unregistered partition schedule dated 29.8.1978 is admissible in evidence and the Court below

is right in rejecting the said document and dismissing I.A.No.592 of 2000?

The learned counsel appearing for the petitioner has produced xerox copy of partition schedule dated 29.8.1978. It is the contention of the

learned counsel for petitioner that though the said document has not been registered as per the provisions of the Registration Act, since necessary

stamp duly and the penalty have been remitted under Indian Stamp Act, the said document cannot be relied on to prove the factum of partition, but

the same may be used for collateral purpose, namely to prove possession of the properties in question. The letter of the Revenue Divisional

Officer, Chidambaram in K.Dis.No.7308/96 dated 29.10.1996 addressed to the petitioner K. Pattabiraman clearly show that the document dated

29.08.1978 have fully been stamped and validated. By pointing out the above fact that the required stamp duty and penalty have been paid under

the Stamp Act, the said document may be considered for a limited purpose. There is no dispute that it is well established proposition that

unregistered document cannot be a basis for proving title, however the same can be looked into for deciding nature and character of possession.

Mr. Mani Narayanan, learned counsel appearing for the petitioner has very much relied on the decision of mine in the case of M.K. Narayanan

and 2 others Vs. The State of Tamil Nadu and another, and the Division Bench decision of this Court in the case of reported in A.C.

Lakshmipathy v. A.M. Chakrapani Reddiar, 2001 (2) CTC 112 : 2000 (2) T.L.N.J. 315. After referring the earlier decisions of this Court as well

as relevant provisions from the Registration Act, in M.K. Narayanan and 2 others Vs. The State of Tamil Nadu and another, ,1 have already held

that the unregistered document can be looked into for the purpose of finding of any division in status or not. In the case of Booraswami Vs.

Rajakannu and Others, , the Division Bench of this Court has held that unregistered partition deed can be looked into for the purpose of finding

whether there was a division in status or not. This fact of unregistered partition deed or family arrangement has been considered elaborately in the

latest Division Bench decision reported in A.C. Lakshmipathy v. A.M. Chakrapani Reddiar, 2001 (2) CTC 112 : 2000 (2) T.L.N.J. 315

Speaking for the Bench, A.S. Venkatachalamoorthy, J., after referring the relevant provisions from the Indian Registration Act, 1908 , Indian

Stamp Act, 1899 as well as earlier decisions of this Court and the Supreme Court summed up the legal position.

(1) A family arrangement can be made orally.

(II) If made orally, there being no document, no question of registration arises.

(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any

immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of

the nature of phraseology of the writing and the circumstances in which and the purpose, with which it was writien.

(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a

record of what had been agreed upon, in order that there are no hazy notions in nature, it need not be stamped or registered.

(VI) 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,

whether the arrangement 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.

(VII) if the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not

claim a right of title to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35

of the Indian Stamp Act.

Among the clauses referred to above, clause VII is applicable to the facts of our case. I have already observed that the document, namely partition

schedule in question though not registered, is stamped in accordance with the provisions of the Indian Stamp Act. This is evident from the

proceedings of the Revenue Divisional Officer dated 29.10.1996, annexed with the xerox copy of partition schedule dated 29.08.1978. In such a

circumstance, I am of the view that the petitioner is right in relying on clause VII referred to in the Division Bench decision. In the case of

Venkatachala Moopar (died) & Others v. Balasubramanian, 2001 (1) T.L.N. J. 191 P. Thangavel, J., has also held that unregistered document

though cannot be the basis for proving title can be looked into for deciding Ihe nature and character of possession.

In the light of the legal position referred to above, more particularly the Division Bench decision of this Court in the case of A.C. Lakshmipathy

v. A.M. Chakrapani Reddiar, 2001 (2) CTC 112 : 2000 (1) T.L.N. J. 315, I am of the view that clause VII therein is applicable to our case;

accordingly partition schedule dated 29.08.1978 can be looked unto for collateral purpose. The contrary View expressed by the Court below is

liable to be set aside. Accordingly, the order passed by the Prl..Subordinate Judge in I.A.No.597 of 2000 dated 12.07.2000 is hereby set aside.

The civil revision petition is allowed. No costs. Since the suit is of the year 1989, the learned Subordinate Judge is directed to dispose of the same

within a period of three months from the date of receipt of a copy of this order.

In view of the disposal of the main revision petition, connected CMP., is closed.