IMPORTANT POINT
An oral partition by metes and bounds later on reduced in writing as a memorandum of partition not requires to be registered.

A.K. Shrivastava, J.—By this writ petition filed under Article 226 of the Constitution of India, petitioners are seeking following reliefs:—

It is therefore prayed that the petition may kindly be allowed. The order impugned dated 02.11.2010, passed by the Board of Revenue Gwalior, (Annexure-P11), order dated 19.01.2010 passed by the Commissioner Rewa Division Rewa (Annexure, P9) and order dated 20.09.2007 passed by the Collector of Stamps Satna (Annexure-P7) may kindly be set aside. The case may kindly be remanded to the Collector of Stamps Satna.

2. The contention of learned counsel for petitioner is that an oral partition took between the members of Hindu Undivided Family on 31.03.1996 and accordingly erstwhile Hindu Undivided Family which was existing in the name of Ram Vishal Agrawal was partitioned by metes and bounds. The share in the immovable property, assets and liabilities were allotted to each Coparcener in the oral partition. To avoid any future misunderstanding and to maintain peace in the family on the basis of the oral partition which took place on 31.03.1996, a document of memorandum of partition based on earlier oral partition dated 21.03.1996 was prepared on 10.04.1996. On the basis of memorandum of partition the petitioners applied to get their names mutated in the Municipal record. However, the Municipality Nagore instead of mutating the names of petitioners in the Municipal record referred the matter to Collector (Stamps). The Collector (Stamps) vide its order dated 25.09.2004 (Annexure-P2) directed to pay deficit stamp duty and penalty. This order was assailed by the petitioners by filing an appeal before the additional Commissioner Rewa which was allowed on 07.11.2006 and the matter was remanded to the Collector (Stamps). Thereafter vide Annexure-P7 dated 20.09.2007 the Collector again passed an order to pay the stamp duty and duty penalty in terms of the order. This order was assailed before the Additional Commissioner, Rewa Division, Rewa by filing an appeal which was time-barred, but the delay was not condoned although there was an application to condone the delay. The appeal was dismissed on 19.01.2010, and thus order of Commissioner was assailed before the Board of Revenue, who dismissed the appeal of petitioners by affirming the order of learned Additional Commissioner.

3. In this manner this petition has been filed by the petitioners.

4. The contention of learned counsel for petitioners is that it is well settled in law that a memorandum of partition acknowledging the earlier partition which effected by metes and bounds, is not required to be registered and therefore the order of’ Collector (Stamps) dated 20.09.2007 (Annexure-P7) is illegal, without jurisdiction and de hors to Section 17(1)(b) of the Indian Registration Act, 1908 (in short “the Act”).

5. On the other hand, Shri Sudesh Verma, learned Govemment Advocate argued support of impugned order and submitted that the Collector (Stamps) did not commit any error in directing the petitioners to pay deficit stamp duty and duty penalty.

6. Having heard learned counsel for parties, I am of the view that this petition deserves to be allowed.

7. On going through the document of memorandum of partition (Annexure-P1) dated 10.04.1996 it is gathered that erstwhile Hindu Undivided Family which was existing in the name and style ‘Ram Vishal Agrawal’ was partitioned since, the oral partition took place in the family on 31.03.1996. The total assets and liabilities of the said Hindu Undivided Family was partitioned by allotting the share to each party on 31.03.1996. In order to lay-down the terms and conditions of oral family partition which took place on 31.03.1996, a memorandum of partition (Annexure-P1) was prepared which was signed by the parties. The factum of earlier oral partition by metes and bounds and allotment of share in the immovable property to each coparcener separately including the liabilities and assets is not disputed by the partie