1. The petitioner is the first defendant in O.S.No.418 of 1999 on the file of the Sub Court, Namakkal. It is a suit for partition filed by the respondent. Both the parties are brothers. When the defendant comes forward with a document captioned as "TAMIL", the plaintiff raised strong objection to mark the document stating that by virtue of the said document, the division purported to take place and hence it would attract Section 2 (15) of the Indian Stamp Act and Section 17 (1) (b) of the Indian Registration Act as well. It is contended by the petitioner that it is a mere agreement to divide the properties between the parties in a future date, which agreement came to existence in the presence of panchayatras and since it does not create any right by itself, there is no impediment to mark the document and to admit the same in evidence.

2. The learned Sub Judge, after hearing both sides, passed an elaborate order rejecting the contention of the petitioner and observed that the documents produced by the defendant is not admissible in evidence and posted the case for further evidence of defendant.

3. The learned counsel for the petitioner Mr.R.Subramanian laboured hard to convince this Court by taking this Court to the recitals contained in the said document and contended that the very reading of the document would show that in the presence of the panchayatras they accepted to divide the properties and to enter into the registered partition deed within three months from the date of the document and after the registration of the document, the partition suit has to be withdrawn by the plaintiff. In this context, it is profitable to extract the recitals with the property particulars as such;

(TAMIL)

4. The document is dated 06.12.2000. There are two portions in the documents which attract the attention of this Court. One is "TAMIL" (means in the presence of witnesses we have divided the properties). For the said division, the agreement has been executed, the next line reads.

5. However, both the parties agreed to get the agreement registered within three months. When both the recitals in the document are carefully scrutinized, the necessary corollary would be that by virtue of the document, they divided the properties and they also fixed specific portions to be taken by each of them and the other portion indicates that there is an agreement to get the registered document executed within three months and to divide the expenses for registering the document equally. In my considered opinion, the rights of the parties are created by this document in the properties divided in praesenti.

6.The learned counsel for the petitioner would place much reliance upon a Full Bench decision of this Court reported in AIR 1980 MADRAS 97 [The Board of Revenue, Madras v. M.Swaminatha Chettiar] wherein it is held that the document in question was neither an instrument of partition nor an agreement to divide the property in severalty but it was merely a record of an agreement with the avowed intention of executing documents in future so as to secure individual title over the properties in question and hence the document shall fall within Section 2 (15) of the Stamp Act. The Full Bench has also referred to an earlier judgment of this Court. The operative portion of the judgment goes thus:

2. The question therefore is whether such an instrument vests or divests in praesenti any title in property, immoveable or moveable, as between the contesting claimants. We have already expressed the view that the panchayatdars merely suggested a mode of division of the common properties and the parties themselves have voluntarily agreed to abide by the award of the Panchayatdars and they have also made it clear that "suitable documents will be executed in due course". This makes it clear that the intention of the parties at or about the time when they accepted the arrangement suggested by the Panchayatdars was that they were accepting the mode of division, bu