Vincent Lourdhenathan Dominique and Lenin Anand @ Paquinadane Dominique vs Josephine Syla Dominique

P. Jyothimani, J.—This revision is directed against the order of the learned Principal Subordinate Judge, Pondicheery dated 27.11.2006

passed in O.S. No. 334 of 2000, rejecting the documents filed by the revision petitioners.

The defendants in the suit are the revision petitioners. The respondent has filed the suit in O.S. No. 334 of 2000 for partition and division of

1/3rd share in the suit property apart from recovery of an amount of Rs. 8,000/- towards past mesne profits and also for permanent injunction

against the defendants from causing any waste and damage to the properties.

The suit is laid on the basis that the father and mother of the plaintiff owned ""A"" and ""B"" Schedule properties comprising of houses, shops and

vacant sites and they died intestate leaving behind the plaintiff and defendants as their legal heirs. According to the plaintiff, the defendants have

attempted to partition the properties by allotting a small item of property of less value described in ""A"" schedule to the plaintiff, with the help of

local people and panchayatdars, which was not agreed by the plaintiff. It is the further case of the plaintiff that after prolonged negotiation, on

14.04.2000, the defendants have ultimately agreed for an amicable partition of movable and immovable properties described in ""A"" and ""B

schedules. According to the plaintiff, the plaintiff and the defendants have jointly submitted an application on 03.05.2000, for payment of the

amount lying in the Pondicherry State Co-operative Bank Limited under the said understanding and the same is still pending with the Bank. For the

months of April and May, 2000, the plaintiff and defendants have shared the rental incomes equally. When the plaintiff claimed for division of 1/3rd

share, the defendants resisted the same, which resulted in the issuance of legal notice on 29.07.2000. With the said pleadings the plaintiff has filed

the suit.

The defendants have filed a written statement. According to the defendants, when the dispute arose, the matter was taken to the panchayatdars

of local area and they settled the matter between the plaintiff and the defendants by a compromise. As per the compromise arrived at in the

presence of the panchayatdars, the plaintiff agreed to take item-1 of ""A"" schedule property towards her share and to leave other items towards the

shares of the defendants. It is the further case of the defendants that as per the said understanding, the agreement for partition was reduced into

writing on 21.05.1999 before the panchayatdars and signed by the plaintiff and defendants and they also agreed to register the partition deed in

future. The said agreement was signed by the panchayatdars as attesting witnesses. According to the defendants, the plaintiff, having agreed to take

the house property, viz., item-1 of ""A"" schedule property in full satisfaction of her entire claim, is estopped from going back from the said

agreement. During the trial of the said suit, the defendants have filed the proof affidavit, in which the defendants wanted to mark a deed of family

arrangement, which was objected to by the plaintiff.

The learned trial Judge, while deciding about the marking of the said document on the defendants'' side, has rejected the same on the ground

that the family arrangement produced by the defendants is a partition deed and unless it is stamped and registered in accordance with law relating

to Indian Stamp Act and Indian Registration Act, the same cannot be admitted as material evidence. It is, as against the said order of the learned

trial Judge, the defendants have filed the present revision petition.

Mr. Srinath Sridevan, learned Counsel for the revision petitioners would submit that the agreement entered on 21.05.1999 in the presence of

panchayatdars amounts to recognition of a division already taken place. Relying upon the last paragraph of the said agreement, wherein it is agreed

between the parties that the gold jewels and silver utensils belonging to the family have already been partitioned in the presence of panchayatdars,

he would submit that it should be treated that the partition has already taken place and it is only the factum of division that was entered in the family

arrangement on 21.05.1999. He would further state that the agreement was entered only to record the factum already happened. To substantiate

his contention, he would rely upon various judgements, viz.,

(i) 2001 (1) Law Weekly 257 (A.C. Lakshmipathy v. A.M. Chakrapani Reddiar and Ors.);

(ii) L.A.N.N. Alagappan Vs. P.S. Kalayanasundaram Iyer (Died) and Others, ;

(iii) 79 LW 222 (The Chief Controller Revenue Authority, Board of Revenue, Madras v. Mohammed Yoonus Sait); and

(iv) 61 MLJ 418 (Vikrala Ramachandracharyulu v. Vikrala Srimth Rangacharyulu and Anr.).

On the other hand, Mr. K. Vasu Venkat, learned Counsel appearing for the respondent would submit that a reference to the said agreement

sought to be marked by the defendants clearly show that it is a partition deed and it is not a family arrangement at all. According to him, the

decision to partition itself was arrived at only on 21.05.1999 in respect of the immovable properties. To substantiate his contention, he would rely

upon the Judgment of this Court in R. Deivanai Ammal (Died) and Anr. v. G. Meenakshi Ammal and Ors. 2005 (1) LW 343.

I have heard the learned Counsel for the petitioners as well as respondent and perused the entire records, including the order of the learned trial

Judge.

As rightly pointed out by the learned trial Judge, to decide about the nature of a document whether it requires to be stamped or to be registered,

it is the contents of the document, that are to be taken into consideration and not the nomenclature alone.

The law is well settled that in cases where partition among the joint owners had already taken place and the factum of the partition effected

earlier was put in writing on a later point of time and the properties are enjoyed as per the said partition, the same can be termed as a family

arrangement and need not be treated as a partition deed and therefore, the question of stamping and registering the same does not arise. On the

other hand, if an agreement itself creates a right for the first time as a document, then one has to consider the contents of the agreement, instead of

the nomenclature. As correctly found by the learned trial Judge, merely because it is stated in the said agreement dated 21.05.1999 that in respect

of the gold jewels and silver utensils the same have already been divided among the family members in the presence of panchayatdars, it does not

mean that all other immovable properties have also been divided already.

A reading of the said agreement sought to be marked clearly shows that the said agreement was entered on 21.05.1999 in the presence of

panchayatdars. It further states that some amounts from the Life Insurance Corporation and bank accounts standing in the name of the parents of

the plaintiff and the defendants are to be received by the second party to the said agreement, viz., the plaintiff in the suit. The second schedule to

the said agreement also shows that the tiled house situated in Uzhavarkarai Sub-district, Reddiarpalayam Revenue Village, bearing No. 126 Part,

re-survey No. 140/81 is to be enjoyed by the plaintiff. The properties mentioned in the third schedule to the agreement have been allotted to the

second defendant, who is the second petitioner herein. Therefore, a reading of the entire agreement clearly shows that there is no recital to the

effect that it is for recording the earlier partition which had already taken place the said agreement was entered. In that view of the matter, there is

absolutely no difficulty to come to the conclusion that the said agreement cannot be marked as a document, since it requires to be stamped and

registered so as to be admitted in evidence.

In the Judgment rendered in 2001 (1) LW 257 (A.C. Lakshmipathy v. A.M. Chakrapani Reddiar and Ors.), the Division Bench of this Court,

while construing a memorandum recording partial partition in the family which was sought to be marked, after elaborately discussing the entire

issues relating to the Indian Registration Act and the Indian Stamp Act and also the concept of estoppel, held that the document in question being

unstamped and unregistered cannot be looked into for any purpose. In this regard the Division Bench has summed up the legal position as under:

We hold that the document in question being an unstamped and unregistered, cannot be looked into for any purpose. Similarly, oral evidence

cannot be let it about the contents of the said document.

To sum up the legal position

I. 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 written.

V. However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and prepared s a record of what

had been agreed upon, in order that there are no hazy notions in future, need not be stamped or registered.

VI. Only when the parties reduce the family arrangement in writing with the purposes of using that writing as proof of what they had arranged and,

where 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 cannot claim

a right or 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.

As per the guidelines given by the Division Bench, by applying the same to the facts of this case and contents of the document which is sought

to be marked, there is absolutely no difficulty to come to the conclusion that this agreement is purported to create, declare, assign, limit and

extinguish right, title and interest over the immovable properties and therefore, the document is required to be properly stamped and duly registered

under the Indian Stamp Act and the Indian Registration Act.

The next Division Bench judgement, relied upon by the learned Counsel for the petitioners in L.A.N.N. Alagappan Vs. P.S.

Kalayanasundaram Iyer (Died) and Others, , has no application to the facts of the present case. That was a case, wherein a memorandum was

executed and sought to be marked which was in the following words:

I have borrowed from you the sum of Rs. 40,000 (Rupees forty thousand only) for business purposes and I confirm having already deposited with

you the available title deeds as collateral security for the due repayment of the amount due to you with interest.

The contents clearly show that it is for the deposit of title deeds and the factum of deposit of title deeds was recorded and that cannot be said to be

a document which created or extinguished any right. In fact, the Division Bench has held that the only important feature on which the Court should

pay its attention is that the deposit of title deeds had taken place earlier than the time of writing the memorandum. In other words, what had already

happened, viz., parting with the title deeds, was recorded subsequently and on the date of document, the deposit of title deeds was an existing fact.

The relevant portion of the Judgment of Division Bench is as follows:

The law on equitable mortgages had developed mostly from the facts and circumstances of each case. No particular yard-stick can even be laid

down with rigidity so as to bind cases under the subject uniformly, as each case has to be dealt with on its own merits and indeed has to be

adjudged with reference to the surrounding circumstances as well. The law, which has so far developed and is likely to develop hereafter, should

be confined to the particular facts of those cases. One telling principle which has emerged from the ratio of the decisions, however, is that if there is

evidence, either extrovert or introvert which would compel a Court to hold that under a single bargain the borrowing and the deposit of title deeds

were effected and that the intention is made clear and public only in such a contemporaneous transaction, then a memorandum evidencing such a

bargain needs registration. It may be that the memorandum contains a recital as to the quantum of the amount borrowed. That would not make the

memorandum any the less a non-registrable one, provided it is an independent transaction and not the sole bargain to evidence the deposit of title

deeds. The only important feature on which the Court should pay its concentrated attention is that the deposit of title deeds should have taken

place earlier than the time of the writing of the memorandum. If such a dissociation in point of time is apparent from the memorandum itself, or if it

could be discovered from the totality of the facts and appreciation of the surrounding circumstances, then the plaintiff can successfully pilot his case

on the foot of an equitable mortgage and obtain a mortgage decree. If, however, the Court is not satisfied about the earlier deposit of title deeds,

but if the memorandum projected is the only piece of evidence whereby the equitable mortgage is created, then notwithstanding the nicety of

expressions used therein, the Court has to hold that such a memorandum is not admissible in evidence for want of registration.

The term ''recording'' was construed by the Full Bench of this Court consisting of M. Anandhanarayanan, O.C.J., Srinivasan and Natesan, JJ.,

in 79 L.W. 222 (The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Md. Yoonus Sait)]. While holding that the document in

dispute in that case amounted to settlement and therefore, chargeable to duty as settlement, the learned Judges have referred to a passage in the

Judgment of the Special Bench of Lahore High Court in Choen and Moore v. Revenue Commissioners reported in 13 Lahore 270, which runs as

follows:

In my opinion ''recording'' as used in this article means committing to writing as authentic evidence of a matter having legal importance, evidence of

which is thus preserved and may be appealed to in case of dispute. It is not legally necessary that the matter and the record thereof should be

contemporaneous. There may be cases in which a fact is reduced to writing as authentic evidence thereof long after it came into existence.... The

document clearly indicates that the primary object...in executing it was to bring into existence documentary evidence of the adoption which may be

appealed to in case of any future dispute...."" This passage clearly indicates the scope of the expression ''recording'' and the purpose for which a

record is made.

The next case relied upon by the learned Counsel for the petitioners is the Judgment of this Court in Vikrala Ramachandracharyulu v. Vikrala

Srimath Rangacharyulu and Anr. 61 MLJ 418 which is also not applicable to the facts and circumstances of the present case. In fact, while dealing

with Section 17(2)(v) of the Indian Registration Act, Ramesam, J. has held as follows:

Three Hindu reversioners who were entitled to certain properties in equal shares filed a suit for recovering the same from person to whom they had

been improperly alienated by the widow in possession. During the pendency of the suit they executed an agreement according to which one of

them was to finance the litigation entirely and in consideration therefore was to get an extra share. In a suit for specific performance, held, the

agreement did not require registration. Though it did not expressly state that another document would be executed, as it did not by itself convey

any property there was an implied undertaking to execute a further document. The test in all such cases is not whether a document expressly

contemplated executed of another document, but whether by itself it created any right to immovable property.

Therefore, even as per the judgements referred to by the learned Counsel for the petitioners, on the factual situation of the present case, there

is no difficulty to come to the conclusion that the document sought to be marked by the defendants who are the revision petitioners herein has

created title and interest and cannot be treated as recording of the factum of division already taken place and therefore, the document requires

execution of the document on proper stamp papers and registration as per the Indian Registration Act. In fact, a Division Bench of this Court

consisting of P. Sathasivam, J. (as he then was) and S. Sardar Zackria Hussain, J. in R. Deivanai Ammal (died) and Anr. v. G. Meenakshi Amman

Ammal and Ors. 2005 (1) LW 343 relied upon the abovesaid Division Bench Judgment in 2001 (1) LW 257: 2001 (1) CTC 112 (cited supra) in

respect of various guidelines and held that one of the documents marked as Ex.B-28 called, Athatchi would come within the meaning of guideline

No. 3 enumerated in the Judgment of Division Bench cited supra and therefore it purports to create, declare/extinguish a right, title or interest in the

property and hence, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act respectively, in the

following words:

The document in our case, namely, Athatchi � Ex.B-28 comes within the legal position No. 3 pointed out above. As said earlier, Ex.B-28 is not

only a document of family arrangement reduced to writing, but it purports to create, declare/extinguish right, title or interest of the properties of

Ganapathy Moopanar. In such a circumstance, we hold that it must be properly stamped and duly registered as per the Indian Stamp Act and

Indian Registration Act respectively....

Therefore, looking at any angle, I have no hesitation to come to the conclusion that the decision of the learned trial Judge in rejecting the claim of

the defendants/revision petitioners to mark the agreement dated 21.5.1999 is in accordance with law and needs no interference and the same is

neither irregular or illegal. In view of the same, the C.R.P. fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.