Direction given to trial court to ascertain stamp duty and penalty.

The above Civil Revision Petition is filed against the fair and decretal order dated 1. 2005 made in I.A.No.258 of 2004 in O.S.No:152 of 2000 by the learned Subordinate Judge, Arni, dismissing the I.A., filed by the plaintiff under Order 13 Rule 3 CPC to reject the Koorchit dated 15. 1997, sought to be marked by the respondents/defendants on the ground that it is an unregistered document.

2. The revision petitioner/plaintiff filed the suit for partition of the suit schedule properties into 4 equal shares and to allot one share to him. The respondents are contesting the suit. It is the case of the respondents that their father died in the year 1994, after his death they entered into an understanding about the sharing of the joint family properties on 6. 1996, thereafter to give effect to the understanding reached, they entered into a family arrangement (Kootchit) on 15. 1997 with regard to the suit schedule properties. In continuation of understanding reached on 6. 1996, they reduced he same into writing about the sharing of properties with its descriptions and they are in enjoyment of their respective shares. It is the case of the respondents that the plaintiff being the eldest son is keeping the original koorchit and the plaintiff has filed the suit falsely after 4 years of the said family arrangement.

.3. During trial, the defendants marked Photostat copy of the said koorchit dated 16. 199 which is unregistered. The plaintiff filed the I.A., to reject the said document. The respondents resisted the said I.A., stating that the very existence of the said Koorchit has been admitted by the plaintiff in his evidence. The learned Subordinate Judge, Arni on a consideration of the pleadings and submissions of the respective counsels, dismissed the said application holding that the document can be marked as an exhibit recording the objection raised by the plaintiff and also to frame an additional issue with regard to the admissibility of the said document. Aggrieved of the same, the present revision is filed.

4. Learned counsel for the revision petitioner/plaintiff contended that since right of an immovable property has been transferred by the Koorchit in question, the same requires stamp duty and registration. Further the said Koorchit is sought to be introduced after the examination of the parties are over and at the time when the matter is posted for arguments. It is also contended that the admissibility of the document should be tested at the time of production of the document under Section 35 of the Stamp Act and not at a later stage.

5. On the contrary, it is contended by the learned counsel for the respondent that the family arrangement is a matter of fact and evidence on record that the plaintiff and the defendants divided the property and are in possession and enjoyment of their respective shares for all these years and in act the petitioner has sold some trees that fell in his share and also gave no objection for transfer of the patta and Electricity connection to be obtained by the third defendant.

6. It is also contended by the learned counsel for the respondents that oral partition and subsequent family arrangements reduced into writing are admissible and they have the same effect of a registered deed. Learned counsel also relied on the judgment of the Apex Court in 2004 (4) CTC 143 to the effect that after partition deed when the parties have independently dealt with the properties by effecting sales and effected mutation and also paid assessment separately, the partition deed though unregistered does not require registration and the admissibility of the document can be looked into only at the time of trial. The decision of this court reported in 2004 (3) CTC 481 is also relied on for the proposition of law that the question regarding the time at which documents were produced are to be tested in trial after marking the same.

.7. In 2003 (3) MLJ 45 (Balakrishnan & another Vs. Chandrasekharan), this co