Back
IN THE HIGH COURT OF ALLAHABAD
Agarwala, J.
MT.THEKURA - Appellant
Versus
SUKHRAJ SINGH - Respondents
Second Appeal 116 Of 1947
Decided On : 11/04/1952
PARTITION - CHITTHA - STAMP ACT - REGISTRATION ACT - ADMISSIBILITY - COLLATERAL PURPOSE - STAMP DUTY - REGISTRATION.
Fact of the Case:
Plaintiff filed a suit for possession of a portion of plot and demolition of a building constructed by the defendant on the ground that one co-sharer had no right to give permission to make constructions on a pint piece of land.
Finding of the Court:
The court held that the partition chittha was admissible in evidence, that neither stamp duty was payable on it nor did it require registration and that, in any case, even if it required registration but no stamp duty, it was admissible in evidence for the collateral purpose of showing the nature of Jagannaths possession.
Issues: Whether the partition chittha required to be stamped under the Stamp Act and to be registered under the registration Act.
Ratio Decidendi: The court held that the partition chittha in question was not an "instrument of partition" as defined in the Stamp Act and, therefore, did not require to be stamped. The court further held that the chittha required registration under Section 17, Clause (b) of the Registration Act, as it declared a particular cosharer's right in a particular lot allotted to him at a particular partition. However, the court also held that even if the chittha required registration, it could be used for the collateral purpose of showing the nature and character of possession of the party concerned, as per Section 49 of the Registration Act.
Final Decision: The appeal was allowed, the order of the lower appellate Court was set aside, and that of the trial Court was restored.
( 1 ) THIS is a defendants appeal arising out of a suit for possession of a portion of plot no. 278b in mahal Chitta Singh and demolition of a building erected on it by the defendant-appellant. The plaintiff and one Jagannath were co-sharers in Mahal Chitta Singh. Jagannath gave permission to the defendant-appellant in construct a building on the plot in suit. In pursuance of the permission, the defendant-appellant raised a construction on the plot. The plaintiff-respondent filed a suit, which has given rise to this appeal, for demolition of this construction and for possession of the plot on the ground that one co-sharer had no right to give permission to make constructions on a pint piece of land.
( 2 ) IN defence, it was urged that there was a private partition between the cosharers in the mahal and the plot in suit had fallen to the lot of Jagannaths prodecessor-in-title. In support of this plea a partition chithi showing the plots which had been allotted to Jagannaths predecessor-in-title was produced by the defendant-appellant. Relying on this document, as also on other documents, the trial Court held in favour of the defendants and dismissed the suit. The lower appellate Court, however, held that the chittha was an instrument which required stamp and also registration and that not being stamped nor registered it was not admissible in evidence even for a collateral purpose, namely, for the purpose of showing the nature of possession of Jagannath or his predecessor-in-title. The lower appellate Court, therefore, decreed the suit for possession and demolition.
( 3 ) IN this second appeal it has been urged on behalf of the defendant-appellant that the parti-tion chitthi was admissible in evidence, that neither stamp duty was payable on it nor did it require registration and that, in any case, even if it required registration but no stamp duty, it was admissible in evidence for the collateral purpose of showing the nature of Jagannaths possession.
( 4 ) UNFORTUNATELY, the respondent is not represented before me--his counsel having intimated to this Court that he had no instructions in the case.
( 5 ) THE partition chittha, EX. A-4/dwi is in the following terms :
"chitthi (that is, memorandum) of private partition, mahal Chatta Singh, ten annas pukhtaadri, mauza Mandoli, pargaua Mahona, tahsil Malihabad, zila Lucknow, relating to the lot of sheomangal Singh wa Jadunath Singh wa Rameshwar Bux Bingh, corresponding to 1336 Fasli. "
Then follow the numbers of the plots with their description and at the end there is a total of the area and the revenue of the whole lot. The document is signed by Shoo Mangal Singh and bhag-wan Bux Singh. Bhagwau Bus Singh was the other cosharer. The questions are whether this document required to be stamped under the Stamp Act and to be registered under the registration Act. The Stamp Act defines an "instrument" as follows : " instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. " ex. A4/dwi is certainly a document which records the fact that certain property was allotted to the lot of certain persons at a private partition. It is signed by two of the co-sharers. It is, therefore, clearly a document by which a right or liability is purported to be "recorded". But every instrument is not required to be stamped under the Stamp Act. The Stamp Act requires only certain kinds of instruments to be stamped. Unless EX. A4/dwi is an instrument of partition, it does not seem to fall under the category of any other instrument liable to be stamped under Schedule I, Stamp Act. Can it be called "an instrument of partition"? An "instrument of partition" has been defined as meaning "any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any civil Court and an awar
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
