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2010(3) JLJ 16
A.K. Shrivastava and Piyush Mathur, JJ.
Guljarilal Jain
Versus
Ravikant Shirke
Writ Petition No.5383 of 2009 Decided on 19.1.2010.
It is well settled in law that the document which itself does not effect a partition, but merely records the nature acknowledging the earlier partition, does not require any registration because by executing the said document no rights are created, declared, assigned, limited or are extinguished and, therefore, according to us, the nature of this document would not come within the purview of clause (b) and clause (c) of section 17 of the Indian Rgistration Act, 1908. Apart from this, if sub-section (2) of section 17 of the Indian Registration Act is taken into consideration into proper perspective and particularly 2(v), since by the document, EX.P-2 (Annexure P-3) itself any right, title or interest creating, declaring, assigning, limiting or extinguishing title or interest of the value of one hundred rupees or upwards to or in the immovable property are not conferred in the parties, but by this document mere a right to obtain another document which will, when executed may create, declare, assign, limit or extinguish any such right, title or interest in the property has been conferred and, therefore, clause (b) and (c) of sub-section (1) to section 17, according to us, would not apply and, we have no scintilla of doubt that the document in question, Ex.P-2, is not at all require any registration. AIR 1976 SC 807 and AIR 1988 SC 881 followed. [Para 11
(2) Stamp Act, 1899 -- S.2(15)( iii) and Schedule l-A, clause 43 -partition -- voluation of property which fell in share of each coparcener -- not mentioned in the document -- stamp duty is not chargeable. [Para 14
(3) Civil P.C., 1908 -- O.13 R.3 -- application under by defendant after closure of plaintiffs evidnce -- it was to linger on the trial -- trial Court rightly rejected the application. [Para 15
¼1½ jftLVªhdj.k vf/kfu;e] 1908 & /kkjk 17¼1½¼[k½¼x½ rFkk 17¼2½¼v½ && iwoZrj ekSf[kd foHkktu dks vfHkLohd`r djrk gqvk nLrkost && bldk foHkktu ij izHkko ugha gksrk gS && ekSf[kd foHkktu igys&gh gks x;k && mDr nLrkost dks jftLVj fd, tkus dh vko‘;drk ugha gSA ;g fof/k dh n`f"V esa lqLFkkfir gS fd nLrkost ftldk Lo;a foHkktu ij izHkko ugha gksrk gS cfYd ftlesa iwoZ foHkktu dks vfHkLohd`r djus okyh izd`fr dk vfHkys[k ek= gksrk gS] ds fdlh jftLVªhdj.k dh vko‘;drk ugha gksrh gS D;ksafd mDr nLrkost ds fu"iknu }kjk dksbZ vf/kdkj l`ftr] ?kksf"kr] leuqnsf‘kr] lhfer ;k fuokZfir ugha gksrs gSa rFkk] blfy, gekjs vuqlkj] bl nLrkost dh izd`fr Hkkjrh; jftLVªhdj.k vf/kfu;e] 1908 dh /kkjk 17 ds [kaM ¼[k½ rFkk ¼x½ ds {ks= ds Hkhrj ugha vk,xhA blds vfrfjDr] ;fn Hkkjrh; jftLVªhdj.k vf/kfu;e dh /kkjk 17 dh mi/kkjk ¼2½ rFkk fof‘k"V :i ls 2¼5½ ij mfpr ifjizs{; esa fopkj fd;k tk,] D;ksafd nLrkost] izn‘kZ ih&2 ¼mikca/k ih&3½ }kjk Lo;a LFkkoj laifRr ds fy, ; esa ,d lkS :i;s ds ewY; dk gd ;k fgr l`ftr] ?kksf"kr] leuqnsf‘kr] lhfer ;k fuokZfir djrk gqvk dksbZ vf/kdkj] gd ;k fgr i{kdkjksa dks iznr ugha fd, x, gSa] cfYd bl nLrkost }kjk nwljk nLrkost] tks tc fu"ikfnr fd;k x;k laifRr esa dksbZ ,slk vf/kdkj] gd ;k fgr l`ftr] ?kksf"kr] leuqnsf‘kr] lhfer ;k fuokZfir dj lds] izkIr djus dk vf/kdkj ek= iznRr fd;k x;k gS blfy, gekjs vuqlkj] /kkjk 17 dh mi/kkjk ¼1½ ds [kaM ¼[k½ rFkk ¼x½ ykxw ugha gksaxs rFkk] gesa yo&ys‘k Hkh lansg ugha gS fd iz‘uxr nLrkost] izn‘kZ ih&2 dks fdlh jftLVªhdj.k dh fdafpr vko‘;drk ugha gSA , vkb vkj 1976 ,l lh 807 rFkk , vkb vkj 1988 ,l lh 881 vuqlfjrA ¼iSjk 11½ ¼2½ LVkai vf/kfu;e] 1899 && /kkjk 2 ¼15½ ¼rhu½ rFkk vuqlwph 1&d] [kaM 43 && foHkktu && laifRr tks izR;sd lgnkf;d ds fgLls esa vkbZ dk ewY;kadu && nLrkost esa mfYyf[kr ugha && LVkai ‘kqYd izHkk;Z ugha gSA ¼iSjk 14½ ¼3½ flfoy izfdz;k lafgrk] 1908 && vk-13 fu- 3 && oknh dk lk{; can gksus ds i‘pkr~ izfroknh }kjk vkosnu && ;g fopkj.k esa foyac djus ds fy, Fkk && fopkj.k U;k;ky; us vkosnu Bhd&gh ukeatwj fd;kA ¼iSjk 15½
Shrivastava, J. -- 1. Feeling aggrieved by the order dated 8.9.2009 by which an application under Order XIII rule 3 CPC filed on behalf of defendant-petitioner has been rejected, the defendant has knocked the doors of this Court by preferring this petition under Article 227 of the Constitution of India.
2. Sans unnecessary detail, the facts lie in narrow compass, suffice it to say that a suit for declaration and injunction has been filed by plaintiff respondent for eviction of the defendant-petitioner from the tenanted premises on the relationship of the landlord and tenant on the grounds envisaged under section 12(1) of the M.P. Accommodation Control Act, 1961. The defendant -petitioner by filing written statement refuted the plaint averments and prayed that the suit be dismissed. The learned trial Court framed necessary issues and the plaintiff-respondent after examining his witnesses, closed his evidence.
3. According to the averments made in the memorandum of Writ petition, when the case was listed by learned trial Court for the evidence of defendant-petitioner, an application under Order XIII rule 3 CPC was submitted by him praying therein that the document (Ex.P-2) be held to be inadmissible in evidence-and the evidence adduced in respect to Ex.P2 may be rejected and may not be read in evidence. The crux of the application on the basis of which the relief in it has been claimed is that the document (Ex.P-2) has been executed on a paper not having proper stamp duty and the same is also not a registered document, although the document is for partition of the property having valuation more than Rs.l00/-.
4. The application has been opposed by the respondent-plaintiff by filing written reply and in the reply it has been contended that the document (Ex.P-2) is nothing but an acknowledgment of the earlier oral partition effected during the life time of Awa Ji Rao. The said document cannot be said to be a deed of partition and, hence, the memorandum of partition acknowledging the earlier partition is not at all required to be registered or any stamp duty is required on the said document and, therefore, the application be dismissed.
5. The learned trial Court by the impugned order has dismissed the application.
6. In this manner, the present petition has been filed by the defendant petitioner.
7. Shri M.B. Mangal, learned counsel for the defendant-petitioner, by hammering the impugned urder of learned trial Court on the touchstone and anvil of sub-section (15) of section 2 of me Indian Stamp Act, 1899 as amended by M.P. Amended Act, has contended that even the memorandum of partition ackowledging the earlier partition is required to be reduced in writing on the stamp according to the stamp valuation which has been envisaged in Schedule I-A of the Stamp Act as amended by the M.P. Amended Act and in this regard, learned counsel has invited our attention to clause 43 and has contended that the instrument of partition is to be executed on the paper having the same stamp duty as for a Bond (No.12) for the amount of the market value of the separated share of shares of the property and because the document (Ex.P-2) is not having the requisite stamp duty, the same is inadmissible in evidence.
8. It has also been put forth by the learned counsel that if the document (Ex.P-2) is taken into consideration in proper perspective, since, it is a document of partition having value more than Rs.100/-, the same is compulsorily registrable according to section 17 of the Indian Registration Act and for this another reason, the document (Ex.P-2) is inadmissible in evidence. On these premised submissions, it has been argued by learned counsel that by allowing this petition the impugned order of learned trial Court be set aside and the application filed under Order XIII rule 3 CPC be allowed and It may be held that the document (Ex.P-2) is inadmissible in evidence.
9. Combating the aforesaid submission of learned counsel for the petitioner-defendant it h
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