Andhra Pradesh High Court - Amravati
Kolli Seetharamaiah vs Kolli Nageswara Rao on 25 November, 2024
APHC010130442022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3460]
(Special Original Jurisdiction)
MONDAY, THE TWENTY FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO: 586/2022
Between:
Kolli Seetharamaiah ...PETITIONER
AND
Kolli Nageswara Rao and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. SREENIVASA RAO VELIVELA
Counsel for the Respondent(S):
1. DODDALA YATHINDRA DEV
The Court made the following:
2
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO.586 of 2022
ORDER:
1. The present Civil Revision Petition is filed questioning the
Order dated 07.03.2022 in I.A.No.159 of 2021 in O.S.No.308 of 2015
passed by the Senior Civil Judge, Mangalagiri, Guntur District.
2. The Petitioner is the Plaintiff. A suit was filed for partition of
plaint schedule properties into 4 equal shares and to allot one such
share to the Plaintiff by metes, bounds and for mesne profits.
The Plaintiff and Defendants are the brothers. As per the plaint, they
had jointly purchased item Nos.1 & 2 of the plaint schedule
properties on 12.07.1984 vide document bearing No.2140/1984 and
possession of item Nos.1 & 2 of the plaint schedule properties was
delivered to the Plaintiff and the Defendants on the same day. It was
further pleaded that the Plaintiff and Defendants jointly purchased
item No.3 of the plaint schedule properties on 07.06.1984 vide
document bearing No.1629 of 1984 and as such the Plaintiff has
1/4th share in the plaint schedule properties. In view of the
differences between the parties, the suit was filed seeking for
partition.
3. In the course of trial, the Defendants filed I.A.No.69 of 2021 in
I.A.No.159 of 2021 seeking to file as many as '24' documents under
Order 8, Rule 1 CPC. In the Affidavit filed in support of I.A, it was
pleaded that the documents were not readily available at the time of
drafting of the Written Statement and those documents are
necessary for proper adjudication of the suit and hence sought the
documents to be received.
4. In the course of arguments before trial court, the learned
counsel for the Petitioner specifically objected with regard to an
unregistered Partition Deed dated 07.06.1991 on the ground that the
said document requires to be registered and only then said
document can be received in evidence. A number of citations were
referred to in support of the said plea. The trial Court following the
Judgment of the Hon'ble Supreme Court in Korukonda Chalapathi
Rao and Another vs. Korukonda Annapurna Sampath Kumar 1
rejected the objections of the Petitioner. Hence, the Civil Revision
Petition is filed.
5. Heard Sri Sreenivasa Rao Velivela, learned counsel for the
Petitioner and Sri Doddala Yatindra Dev, learned counsel for the
Respondents.
6. The learned counsel for the Petitioner submitted that the
objection of the Petitioner is only with regard to the un-registered
Partition Deed dated 07.06.1991 and he is not objecting with regard
to receipt of remaining documents. The counsel for the Petitioner
contended that the un-registered Partition Deed requires stamp duty
and registration. It is his contention that the said document apart
from referring to past partition amongst the parties also refers to
allotment of 'E' schedule property to their mother.
7. The counsel for the Petitioner contended that Section 2(15) of
the Stamp Act was amended w.e.f. 16.08.1986 and as per the said
provision an instrument of Partition includes a memorandum
2021 SCC OnLine SC 847
regarding past partition. Reliance was also placed on Article 40
Schedule (1)(a) of the Indian Stamp Act.
8. The counsel for the Respondent contended that the document
only refers to a past partition and the document does not create any
new rights and therefore such a document need not be stamped or
registered. It is his contention that the partition was effected prior to
the amendment to Section 2(15) of the Stamp Act. As the document
refers to partition prior to amendment of Section 2(15)(a) w.e.f.
16.08.1986, the document is exempt from the stamp duty and
registration. The Judgments of the Hon'ble Supreme Court cited
before the trial Court were relied on.
9. It is the contention of the Petitioner that unless stamp duty is
paid, the document cannot be received in evidence and cannot be
looked even for collateral purpose.
10. The Section 2(15) of the Stamp Act reads as under:-
(15) "Instrument of Partition":- "Instrument of partition" means any
instrument whereby co-owners of any property divide or agree to
divide such property in severally, 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 1[and a
memorandum regarding past partition;]
11. The corresponding stamp duty for the instrument of partition is
provided under Article 40 of Schedule (1)(a) of the Indian Stamp Act.
The term "Memorandum regarding past partition" was specifically
introduced vide A.P (Amendment) Act 17 of 1986 dated 16.08.1986.
in the definition of "Instrument of partition" under Section 2(15) of the
Act. As per the revised definition, the partition documents when they
are reduced into writing after 16.08.1986 are liable for stamp duty
and come within Section 2(15) of the Stamp Act. The document in
question refers to past partition among the parties thereto and
undoubtedly qualifies as a memorandum regarding past partition
and would be liable for stamp duty under Article 40 of Schedule
(1)(a) of the Indian Stamp Act.
12. The Judgment of the Hon'ble Supreme Court relied on by the
counsel for the Petitioner referred supra was more in the context of
Registration Act and the effect of Section 2(15) of the Stamp Act as
applicable to the state of Andhra Pradesh did not fall for
consideration in the said judgement. Notwithstanding the non-
applicability of the Registration Act, the stamp duty cannot be
avoided, as the document comes within the definition of the
'Instrument of Partition' as defined under Section 2(15) of the
Stamp Act.
13. Therefore, the impugned order of the trial court is set aside
and the Civil Revision Petition is allowed. The document styled as
unregistered Partition Deed dated 17.06.1991 shall be marked in
evidence only on payment of necessary stamp duty. There shall be
no order as to costs. As a sequel, pending applications, if any, shall
stand closed.
_________________
NYAPATHY VIJAY, J
Date: 25.11.2024
IS
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO.586 of 2022
Date: 25.11.2024
IS
