Madhya Pradesh High Court

Kunti Bai vs Chandrabhan on 24 January, 2025

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

       1                                                                     M. P. No. 2722/2024

           IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                                       BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                        ON THE 24th OF JANUARY, 2025

                  MISCELLANEOUS PETITION No.2722 of 2024

                         SMT. KUNTI BAI AND OTHERS
                                  Versus
                        CHANDRABHAN AND OTHERS
...................................................................................................................................................................
Appearance:
     Shri Jaideep Sirpurkar, Advocate for petitioners.
     Shri Sanjay Kumar Malvi, Advocate on caveat for respondent 1.
..............................................................................................................................................................

                                       ORDER

           This    miscellaneous     petition has        been   preferred   by   the

petitioners/defendants         1-2   challenging the impugned order dtd.

24.04.2024 passed by 1st Additional Judge to the Court of 1st Civil Judge

Senior Division, Chhindwara in RCS No.62A/2015 whereby objection

raised by the petitioners to the admissibility of partition deed, has been

turned down with the liberty to the respondent 1/plaintiff to mark exhibit

on partition deed for collateral purpose.

2. Learned counsel for the defendants 1-2/petitioners submits that in

the suit filed for declaration of title and partition of the agricultural land,

the plaintiff at the time of evidence, sought to mark exhibit on the

notarized partition deed dtd.21.05.2008, which was objected by the

defendants 1-2/petitioners on the ground that partition deed being

compulsorily registrable in view of Section 17(1)(b) of the Registration

Act, 1908, is not admissible in evidence and cannot be marked exhibit,

even for collateral purpose, but trial Court illegally turned down objection

of the petitioners and permitted the plaintiff to mark exhibit on the

partition deed for collateral purpose. He submits that previously trial

Court vide order dtd.25.08.2022 deferred the same objection to be

decided at the time of final arguments, which was challenged in Misc.

Petition No. 4151/2022, which was allowed on 20.11.2023 with direction

to trial Court to decide the question of admissibility of partition deed in

absence of registration and then to proceed in accordance with law.

Learned Counsel for the petitioners submits that despite holding the

document to be partition deed, trial Court has committed illegality in

holding it to be admissible in evidence for collateral purpose, as requisite

stamp duty/penalty has already been paid by the plaintiff. In support of

his submissions, learned counsel placed reliance on the decisions in the

case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009)2

SCC 532; K.G. Shivalingappa (Dead) by LRs. and Others Vs. G.S.

Eswarappa and Others, (2004)12 SCC 189 & Gangashankar Dubey Vs.

Sindhu Bai and Others, 2022(1) MPLJ 315 and prays for setting aside

the impugned order.

3. Learned counsel appearing on caveat for the respondent 1/plaintiff

supports the impugned order and prays for dismissal of miscellaneous

petition with the contention that trial Court has not committed any

illegality in holding the partition deed to be admissible in evidence for

collateral purpose, even if it is not registered.

4. Heard learned counsel for the parties and perused the record.

5. Perusal of document in question shows that it is a partition deed

and has been held so by trial Court also, whereby parties shown therein

have partitioned the land/property. The counsel appearing for respondent

1/plaintiff has also not disputed this fact that the document is a partition

deed and is not a document of previous partition.

6. In the case of K.G. Shivalingappa (Dead) by LRs. and Others Vs.

G.S. Eswarappa and Others, (2004)12 SCC 189, Hon'ble Supreme Court

has held as under:-

"13. In Nani Bai v. Gita Bai Kom Rama Gunge (AIR 1958 SC 706), it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under S. 17(l)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of S. 17(1)(b) of the Indian Registration Act. This decision was followed in Shiromani and others v. Hem Kumar and others, AIR 1968 SC 1299 and Roshan Singh v. Zile Singh, AIR 1988 SC 881. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Ambadas Bukate, 1996 (6) SCC 373, after analysing the Judgments, referred to above, this Court observed :

"Partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act, 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge (AIR 1958 SC 706) and it has been held that

though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted {by partition) and thus the document would fall within the mischief of S. 17(l)(b) of the Registration Act under which the document is compulsorily registrable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar (AIR 1968 SC 1299) and Roshan Singh v. Zile Singh (AIR 1988 SC 881)."

7. For holding the partition deed to be admissible in evidence for

collateral purpose, trial Court has placed reliance on a decision of

Hon'ble Supreme Court in the case of Sitaram Bhama vs. Ramavtar

Bhama, (2018) 15 SCC 130. Relevant paragraphs of which are as under :-

"13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yellapu Uma Maheswari and another v. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, is appropriate. In the above case also admissibility of documents Ext. B-21 dated 05.06.1975 a deed of memorandum and Ext. B-22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1-plaintiff and appellant No.1-defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B-21 and B-22 held that they require registration. In paragraph 15 following was held:

"15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the

considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition."

14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellant-defendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down:

"16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v.

Chinnappareddigari Venkata Reddy(AIR 1969 AP 242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.

17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy."

15. Following the law laid down by this Court in the above case, we are of the opinion that document dated 09.09.1994 may be admissible in evidence for collateral purpose provided the appellant get the document impounded and to pay the stamp duty together with penalty as has been directed in the above case.

16. In the result, this appeal is partly allowed in the following manner:

The order of the trial court as well as the High Court holding that the document dated 09.09.1994 required compulsory registration is upheld. Following the aforesaid view of this Court in Yellapu Uma Maheswari (supra), this appeal is partly allowed holding that deed dated 09.09.1994 is admissible in evidence for collateral purpose subject to payment of stamp duty and penalty."

8. A careful reading of the decisions in the case of Avinash Kumar

Chauhan (supra); K.G. Shivalingappa (supra); & Gangashankar Dubey

(supra) relied upon by learned Counsel for the petitioners, makes it clear

that in none of the decisions, question of admissibility of partition deed

for collateral purpose after making payment of requisite duty and penalty,

was involved, therefore, all the three decisions do not help to the

petitioners.

9. As has been observed in the impugned order that requisite stamp

duty and penalty has already been paid on the partition deed and this fact

has not been disputed by counsel for the petitioners and even no ground

in that regard has been raised in memo of petition, therefore, in the light

of decision of Hon'ble Supreme Court in the case of Sitaram Bhama

(supra), it is held that unregd. partition deed is admissible in evidence for

collateral purpose subject to payment of stamp duty and penalty, if not

paid already.