Mahendra Singh vs Dhirender Singh

Arun Bhansali, J.—This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner aggrieved against order dated 20.03.2014 passed by the trial court, whereby, the application filed by defendant No. 2 under Order XIII, Rule 3 read with Section 151 CPC, Section 17 of the Registration Act, 1908 (''Registration Act'') and the Rajasthan Stamp Act, 1998 (''Stamp Act'') has been allowed and the document, which has been termed as Sahamati Patra has been rejected as inadmissible in evidence.

The petitioner-plaintiff filed a suit for cancellation of sale deed and permanent injunction against transferor his brother Dhirendra Singh and transferee Gopal; in the affidavit in evidence filed by the plaintiff, a document titled Sahamati Patra was marked as Exhibit-1.

An application was filed by defendant No. 2-Gopal, inter alia, raising objection that the document was not properly stamped and registered and, therefore, the same cannot be admitted in evidence and the same be ordered to be deleted from the evidence affidavit and be ordered to be put in Part-D.

A reply was filed by the plaintiff alleging that the application has been filed for prolonging the litigation; the document was not a deed of partition but was family arrangement; the parties had took possession of their respective shares as per agreement even before execution of the document, whereafter their father, as a memorandum of oral agreement, executed the same as family arrangement, registration whereof was not necessary; the nature of the document cannot be determined at this stage and the same could only be determined after the evidence was over.

The trial court after hearing the parties and on considering various clauses of the document, came to the conclusion that it cannot be said that the document was family arrangement only and/or the same was memorandum of settlement and, therefore, it cannot be said that no stamp duty was leviable; if the document was a partition deed, the same should bear stamp according to law and the same was unstamped and in view of the provisions of Section 39 of the Stamp Act, the insufficiently stamped document is not admissible in evidence for any purpose and, therefore, the document was inadmissible in evidence; the trial court further came to the conclusion that in terms of Section 17(1)(b) of the Registration Act, the registration of the document was also necessary and under Section 49 of the Registration Act also the document was inadmissible.

It is submitted by learned counsel for the petitioner that the trial court committed grave error of law in coming to the conclusion that the document was unstamped and unregistered and, therefore, the same was not admissible in evidence; it was submitted that the nature of document is such that neither any stamp duty is payable nor the registration was compulsory and, therefore, the provisions of Section 39 of the Stamp Act and/or Section 49 of the Registration Act are not attracted and, consequently, the order passed by the trial court deserves to be quashed and set aside.

I have heard learned counsel for the petitioner and have perused the copy of the document, which has been placed on record of this writ petition by learned counsel for the petitioner.

A bare look at the document reveals that the same bears signatures of father Inder Singh and the four brothers; further, the document starts with the narration that "the executants agree regarding the partition of the property as under" and whereafter exhaustive details have been indicated in the document regarding partition of the property, which includes a house at Chandpole Chowk and another house at Ratanada, Jodhpur.

Besides the above, the document also provides and restricts the right of transfer, inasmuch as, the same provides for pre-emptory right of brothers; the document also contains a sketch indicating the partition of the property; nowhere in the document there is any reference to any past transaction and that the said transaction was being reduced to writing, rather the language of the document seeks to partition in present by way of said document.

''Instrument of partition'' has been defined under Section 2(xx) of the Stamp Act, which reads as under:-

"(xx) "instrument of partition" means any instrument whereby co-owners of any property divide, or agree to divide such property in severalty, and includes,-

(i) a final order for effecting a partition passed by any revenue authority or any Civil Court,

(ii) an award by an arbitrator directing a partition, and

(iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners;"

A bare look at the said definition clearly reveals that the same not only includes any instrument whereby co-owners of any property divide or agree to divide such property in severalty but also, inter alia, includes any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners.

In view of the above definition of instrument of partition, irrespective of the fact as to whether the document in question pertains to effect the partition and/or records the agreement between the parties, in either of the circumstance, the document was liable for payment of stamp duty as envisaged by the Stamp Act.

Further, from the fact that by the said document right of the executants to deal with their share of the property has been restricted, in view of the provisions of Section 17(1)(b) of the Registration Act, which provides that 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, to or in immovable property is compulsorily registrable, the document executed by the plaintiff is also compulsorily registrable.

In view of the above, the trial court was justified in coming to the conclusion that the document was inadmissible in evidence under Section 39 of the Stamp Act and Section 49 of the Registration Act.

Consequently, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs.