2009 Supreme(Mad) 5854

High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE M. VENUGOPAL
S.G. Mahaboob Basha (Died) & Others
Versus
Tmt. Najumunnissa
A.S.NO.580 of 2002 & C.M.P.No.6655 of 2002
Decided on : 30-12-2009

Ratios
a. Document showing the past gift and signed by the witnesses, if it is intended to be an evidence of the transaction, it requires registration.
b. Normally, the Court of law should not venture to compare the signatures available in the admitted documents with disputed signature and such comparison has to be left to an expert.
c. In a suit for partition, the plaint allegations are deciding factors as regards the payment of court fee.
d. In a case of joint family properties, the rule is that ad valorem fee is payable.

Headnote:(A)Muslim Law-Registration Act, 1908(16 of 1908)-Sec.17-Indian Evidence Act, 1872(1 of 1872)-Sec.73-Tamil Nadu Court Fees and Suit Valuation Act, 1955(14 of 1955)-Sec.37-Hiba-Memorandum-Registration-Validity-Document-Signature-Comparison-Partition-Court fee-Valuation-When the plaintiff had prayed for share in the properties stood in the name of her mother, defendants pleaded that while the mother was alive, she had, as per Muslim law, orally gifted them to the defendants and later executed a memorandum to evidence them and so the plaintiff was not entitled for any share in them-When the trial Court had disbelieved the hiba alleged by the defendants and decreed the suit, defendants preferred appeal-While the appellant contended that the hiba was valid, respondent contended that as it was used to evidence the hiba, it required registration and in the absence of registration, the document could not be marked in evidence-Held, the content of the document, signing by the witnesses etc. indicated that the document of hiba was executed as evidence of the transaction and not as a memorandum of past transaction and so it required registration-In the absence of registration, it could not be relied on by the appellant-As the plaintiff was not in possession of certain properties, she was bound to pay court fee on the value of those properties and the appellant should also pay similarly on appeal-Appeal was dismissed, judgment and decree of the trial Court was confirmed and the parties were directed to pay the balance of Court fee as directed.

       (B)Muslim Law-Registration Act, 1908(16 of 1908)-Sec.17-Indian Evidence Act, 1872(1 of 1872)-Sec.73-Hiba-Memorandum-Registration-Validity-Document showing the past gift and signed by the witnesses, if it is intended to be an evidence of the transaction, it requires registration.

       Therefore, the entire writing of recitals of Ex.B1 and B2 documents shows Mrs.Ameena Bee’s intention in regard to the execution of the two documents in issue and the two documents have been attested by five witness in Ex.B1 and four witnesses in Ex.B2 and consequently, these two documents have been duly attested by minimum number of two witnesses as required under section 123 of the transfer of Property Act. As such, the prime aim and desire of the executant Mr.Ameena Bee in regard to execute Ex.B1 and B2 Memorandum of Declaration is to serve as evidence of the Gift and not as a memorandum of past transaction and in that view of the matter this Court comes to the inescapable conclusion that Ex.B1 and B2 Memorandum of Declaration comes within the purview of section 17 of the Indian Registration Act, and therefore they are chargeable to duty as gift deed and they are required to be compulsorily registrable under Section 17 of the Indian Registration Act inasmuch as the two immovable properties worth admittedly more than Rs.100/-. Para 61

       (C) Indian Evidence Act, 1872(1 of 1872)-Sec.73-Document-Signature-Comparison-Court-Expert evidence-Normally, the Court of law should not venture to compare the signatures available in the admitted documents with disputed signature and such comparison has to be left to an expert.

       It is true that the Court of Law cannot be an expert and base its conclusion merely of comparison of signature by itself. But in the instant case on hand, the trial Court had definitely compared the signatures in the light of other admitted evidence on record and therefore, the said action of the trial Court cannot be found fault with since by Section 73 of the Evidence Act. A Court of Law is well within its power to compare the disputed writings of the person with other writings which are admitted or proved to be the writings. Though, generally, a Court of Law will be hesitant to use its own eyes and merely on the basis of comparison decide an issue between the parties centering round in writing or signature of a person. Para 73

       (D)Tamil Nadu Court Fees and Suit Valuation Act, 1955(14 of 1955)-Sec.37-Plaint-Partition-Court fee-Valuation-In a suit for partition, the plaint allegations are deciding factors as regards the payment of court fee-In a case of joint family properties, the rule is that ad valorem fee is payable.

       Also, it is well settled that in a suit for partition, the plaint allegations are deciding factors as regards the payment of court fee and indeed, the plaint should be carefully examined to see whether the substance of the plaint allegation amounts to ouster of the plaintiff from all any of the joint properties. In a case of joint family properties, the rule seems to be that Ad valorem fee is payable only whether the plaintiff has no possession of any part of the family properties and his right as a co-parcener has been denied by the Manager or other members in possession. There cannot be exclusion in respect of particular items by reason of other members claiming them as their exclusive and separate properties. Para 76