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2007 Supreme(Mad) 3948

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI
Vincent Lourdhenathan Dominique & Another
Versus
Josephine Syla Dominique
Civil Revision Petition No.3273 of 2007 And Connected Miscellaneous Petition
Decided On : 04-12-2007

Advocates:
For the Petitioners:Srinath Sridevan, Advocate. For the Respondent:K. Vasuvenkat, Advocate.

Headnote:A. PARTITION DEED - Stamp duty and Registration -Suit for partition - Application for permanent injunction restraining defendants from causing any waste and for damages for mense profits - Plea by defendants before trial court, of compromise recorded between parties to effect and register partition deed - Marking of deed of family arrangement by defendant not entertained by trial court - Finding of trial judge and arrangement was a partition deed which could not be admitted in evidence, unless properly stamped and registered.

       CRP filed - finding of trial judge upheld - HELD, to decide about requirement of stamp or registration for a document, contents of document are to be taken and not nomenclature alone (para 9)

       Reading of entire agreement shows that there is no recital to the effect that said agreement was entered for recording earlier partition which had already taken place. Purported to create, declare, assign, limit and extinguish right title and interest over immovable properties - Hence document wanting proper stamp and registration, cannot be admissible in evidence purported to create, declare, assign, limit and extinguish right, title and interest over immovable properties. (Para 10, 14)

       B. FAMILY ARRANGEMENT - Stamp duty and Registration - Law is well settled that in cases where partition among joint owners had already taken place and factum of earlier partition was put in writing on later point of time, and properties are enjoyed as per partition HELD, same can be termed as family arrangement and need not be treated as a partition deed - Hence question of stamp and registration does not arise (Para 10)

       C. EVIDENCE - Document, marking of - See. Family arrangement-877

       D. PARTITION & FAMILY ARRANGEMENT - Oral and/or in writing - Features - See Partition deed - 877

       E. WORDS & PHRASES - ’Recording’ - means committing to write as authentic evidence of a math having legal importance (Para 15).

Judgment :-

This revision is directed against the order of the learned Principal Subordinate Judge, Pondicheery dated 211. 2006 passed in O.S.No.334 of 2000, rejecting the documents filed by the revision petitioners.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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







































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