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P.Selvasundara Pandian v. The District Registrar - WRIT PETITION No. 11931 of 1998 AND WMP.No: 18171 OF 1998  RD-TN 205 (28 March 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE E.PADMANABHAN
WRIT PETITION No. 11931 of 1998 AND WMP.No: 18171 OF 1998 ....
P.Selvasundara Pandian ..Petitioner Vs.
1. The District Registrar Sub Registrar's Office
2. The Chief Controlling Revenue
Authority and Inspector General of
Registration, Santhome, Chennai-4 ..Respondent For petitioner:: Mr. P.Kadirvel and
For respondents: Mr.Kumaresh Babu
Petition filed under Article 226 of The Constitution of India praying for the issue of a writ of mandamus, as stated therein. : O R D E R
The petitioner prays for the issue of a writ certiorarified mandamus calling for the records of the 1st respondent in No.I.52/96 dated 9.5.1996 as confirmed by the 2nd respondent in Pa Mu No.41654/E.3/96 dated 21.1.1998 and quash the same and further direct the respondents to treat the Impugned document pending before the 1st respondent P. No.726/96 dated 22.4.1996 as an agreement and pass such further or other orders as this court may deem fit and proper.
2. The petitioner was a co-owner in respect of property comprised in T.S.No.164 and T.S.No.85/1, Egmore-Nungambakkam Taluk, nearly 342 0 sq.ft., of lands along with his brother C.Shanmugasundarapandian. Each brother is entitled to half share in the property. In the presence of mediators and with the help of one Sankaran, the two brothers divided the property among themselves. The division has been accepted by the two brothers and partition of the land was effected and the respective sharer is entitled to exclusive possession and enjoyment of the property since the date of partition, effected on 5th January, 1990. As per the oral partition, on the application of the parties, patta was also issued by the Revenue Authorities in favour of the petitioner for his share of land. The petitioner has also put up construction in his separate possession with his own funds. In order to acknowledge the previous oral partition, the petitioner and his brother executed a Memorandum dated 22.4.1996 affirming the oral partition and division and separate possession and presented the same for registration. The said Memorandum has been treated as an instrument of partition and the deficit stamp duty of Rs.31,000/= was levied. The first respondent issued a show cause notice on 25.4.1996, to which the petitioner made his objections to the effect that the memorandum entered is not a partition, nor it could be treated as a deed of partition or instrument of partition, nor it will fall under Article 23 or 45 of the Indian Stamp Act. Without reference to this objection, the proposal was affirmed by the Registering Authority. Being aggrieved, the petitioner preferred an appeal. The Appellate Authority has confirmed the same and hence he present writ petition.
3. A counter has been filed by the second respondent taking the stand that the memorandum presented for registration on 22.4.1996 before the first respondent is a deed of partition as defined in Section 2(15) of the Indian Stamp Act and therefore the petitioner has been rightly called upon to pay the deficit stamp duty. It is further pointed out that with a view to avoid payment of stamp duty, such a memorandum has been submitted for registration. According to the respondents, the document in question refers to a oral partition and it can only be classified as a deed of partition as per Section 2 (15) of the Indian Stamp Act and stamp duty is payable as such. The respondent has admitted the mutation in the revenue records much prior to the presentation of the memorandum, but yet it is contended that the memorandum recording the oral partition is a partition deed itself and therefore it has to be considered as a deed of partition and stamp duty is payable.
4. The points that arise for consideration are: (A) Whether the memorandum recording earlier oral partition is liable to be levied stamp duty as an instrument of partition? (B) Whether the disputed document is liable to be charged with stamp duty as a deed of partition?
(C.) To what relief, if any?
5. Section 2 (15) defines instrument of partition, which reads thus:-
"Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severality and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an Arbitrator directing a partition."
6. The essential elements of a partition are (1) existence of a property in co-ownership; (2) division of the property or presence of intention to divide between the co-owners either by way of suit or by way of an agreement. It is well settled law that in determining whether a document is an instrument of partition or not, the whole of the instrument has to be looked into and not merely the operative part of the instrument. The question whether the instrument is an instrument of partition or a memorandum of partition is one of fact.
7. In this respect the decision in Roshan Singh Vs. Zile Singh, reported in, AIR 1988 S.C 881, is relied upon and the Supreme Court held thus:-
"It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change or legal relation to the property divided amongst the parties to it, requires registration under S.17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow:(1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872. (2) Partition lists which are mere records o a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.
Even otherwise, the document Exh.P.12 can be looked into under the proviso to S.49 which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument.
Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore, if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore, the arrangement does not fall within the mischief of S.17 r/w. S.49 of the Registration Act as no interest in property is created or declared by the document for the first time".
8. While following the above pronouncement of the Apex Court, and on a consideration of the materials placed before this court, it is clear that the memorandum rcording earlier partition already effected and acted upon with respect to which mutation of permanent land register has already taken place and the parties are already in exclusive possession and enjoyment of their respective shares. As seen from the recitals in the memorandum, it is clear that no partition is being effected for the first time under the memorandum, but it is only a recording of the earlier events of a division which has been effected already and acted upon.
9. A translated copy of the memorandum has been placed before the court. The material portion of the memorandum reads thus:- "AND WHEREAS in order to avoid future differences of opinion between the parties, and for the convenient and better enjoyment of the landed property, both parties approached Mr.Shankar to divide and distribute the property between them.
AND WHEREAS the said Mr.Shankaran on 5th day of January 1990 in the presence of the parties divided the above said landed property into two shares. The first share is marked in Green Colour in the enclosed map and more fully described in the Item I of the schedule List and the same was allotted to First Party Mr.Selva Sundara Pandian. The second share is marked in RED colour in the enclosed map and more fully described in the Item 2 of the Schedule List and the same was allotted to the Second Party Mr.Shanmugasundara Pandian. AND WHEREAS both parties accepted the said division and partition of the landed property as final, conclusive and binding upon them. AND WHEREAS separate patta was also issued by the Revenue authorities in pursuant to the above said oral partition. The parties are in physical possession and enjoyment of their respective portion of the property allotted to them.
The First party has also put up construction by investing his own funds, in the Item I of the List after the above said oral partition. Where for this memorandum of Oral Partition is drawn up before the parties and he said Mediator who have subscribed their signature in order to accept and acknowledge the previous oral partition and also to signify the correctness of the facts mentioned above."
10. This memorandum, in my considered view is just record the earlier oral partition by which a division has already been effected, the share allotted has already been put in occupation of the respective sharer and there has been a transfer of patta in favour of the respective allottees. The very document itself provides that already at the instance of the mediator, the division has been effected, the respective parties have been inducted into possession and there has been mutation of patta on that basis. Therefore oral partition has already been effected by the two sharers and it is also clear that the document in question is not a deed of partition falling within the definition of Section 2 (15) of The Indian Stamp Act.
11. The document in question being a memorandum recording the earlier division already effected, it need not be stamped as an instrument of partition falling under Schedule I Entry 45. If an instrument of partition effecting division under the very document or agreed to divide on a future date is leviable with the stamp duty, but not a memorandum which records the earlier oral partition, division, allotment and exclusive occupation for a considerable period long prior to the present instrument which is submitted for registration. Therefore, the document in question not being a deed of partition, shall not be levied with stamp duty and the orders of respondents 1 and 2 suffers with illegality and they proceed on a misdirection. Being a memorandum of partition already effected and acted upon, the document in question will not fall under the definition of Section 2(15), nor it is liable to pay stamp duty as ordered by the respondent as sought to be canvassed by the counsel for the respondent in this writ petition.
12. That apart, there is no justification to keep the instrument or memorandum without even completion of registration, merely because it has been referred to the Deputy Collector for adjudication. In terms of the earlier judgement of this Court, the document which has been presented for registration should be returned without delay and any delay will be viewed strictly. Yet, the respondents have not chosen to release the document. This attitude of the respondents cannot be appreciated. Even assuming that deficit stamp duty is payable, it is open to the respondents to take appropriate action in this regard to recover of deficit stamp duty payable on the instrument in question. This is not the case here. The respondents action is illegal, suffer with error apparent on the face of the record, besides it suffers with material irregularity.
13. In the circumstances, the writ petition is allowed. The impugned proceedings of the respondents 1 and 2 are quashed and there will be a direction to the respondents to release the memorandum of partition as prayed for within four weeks from the date of communication of this order or production of a copy of the petitioner. Consequently, the connected W.M.P is closed. No costs. Internet:yes
1.The District Registrar
Sub Registrar's Office
2. The Chief Controlling Revenue
Authority and Inspector General of
Registration, Santhome, Chennai-4
W.P.No: 11931 of 1998
Pronounced on 28-03-2002
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