Proof of certain documents in Partition Suits
- A partition between coparceners or co-owners partakes the character of a release and conveyance, and it cannot be said to be either a sale or an exchange. No writing would, therefore, be necessary for a partition. Ref. AIR 1962 Mad 153
A partition is a word used in legal sense of property to describe an act, by a court judgment or otherwise, for division of property into separate portions representing the proportionate interests of the owners of the property. It is often termed as ‘force sale’. In recent times, in sub-ordinate courts, most of the old matters are only partition suits. To solve and settle partition suits speedily, judicial officers and advocates need the relevant upto date case law and principles of law relating to suit for partition. This article would be more useful and impactful with a couple of end-end examples and relevant case-laws that demonstrate some important principles working together in this short piece of writing. Every judicial officer and practicing lawyer are aware of the fact that while dealing with a partition suit, certain documents with nomenclature such as ‘partition deed’, ‘partition list’, ‘family arrangement list, ‘family settlement deed’ etc would be a big question for marking as other party strongly objects to mark such documents raising one or other reason. It is illustrious that under the Evidence Act marking of a document is one thing. Proving the contents of a document is a different thing.
- To partition of properties, registration is necessary?
The Transfer of Property Act, which requires a registered instrument in the case of transfer of immoveable properties, does not require that a release, surrender, or partition of immoveable properties should be effected by a registered instrument, or even by a writing although in one sense each of them involves a transfer of property. A partition between coparceners or co-owners partakes the character of a release and conveyance, and it cannot be said to be either a sale or an exchange. No writing would, therefore, be necessary for a partition. If however the parties to a release, surrender or partition embody the transaction in writing, the question of registerability would arise under the provisions of Sec. 17 of the Registration Act. Ref: Velusami And Anr. vs Velusami Konar And Ors., AIR 1962 Mad 153.
Significantly enough, it was observed in A. Sarojamma vs A. Parvath Reddy (Died) per LR, the nature of rights that accrue to individuals, in a partition, cannot be equated to transfer.
Before going to discuss admissibility of certain documents relating to partition suit, it is very important to know some fundamentals marking of documents in light of Stamp Act, Registration Act and Civil Procedure Code,1908.
”In Rex V. Daye (1908) 2 King Bench at page 333, ti is held that a document is any writing or printing capable of being made evidence, no matter on what material it may be inscribed.”
”Nomenclature” is not the deciding factor:-
” That the document as a whole has to be considered for the purpose of deciding the nature of the document. Mere nomenclature is not the deciding factor for determining the true nature of a document. Court has to look into the entire text of the document and must come to a definite finding about the admissibility of an unregistered family arrangement.” See. K.Veerabadran and another V. K.Venugopal and 4 others, 2010 (3) CTC 761, at page 762.
The conventional plea in law is that an objection must be raised before the document is admitted during the course of the trial. Howbeit, if a document which cannot be admitted into evidence because of the impediment in law but the same is admitted into evidence without objection, always it is open to a Court of Law to arrive at a finding that the said document is legally inadmissible one.
Section 3 of the Indian Evidence Act, 1872 mentions that ‘Document’ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. Also,Section 29 of the Indian Penal Code speaks of the term ‘Document’ in a similar fashion, by satisfying the explanation 1 and 2 therein
Have a look at Order 13 Rule 3 CPC:-
An objection that the mode of proof is irregular or initial should be taken before the document is admitted. When a document is exhibited before the trial Court, a party against whom it is being brought on record is entitled to question it on the ground of its inadmissibility if after the admission of a particular document it is later on found to be an irrelevant or inadmissible one, in the eye of law, it may be rejected at any stage of the suit as per Order 13 Rule 3 of Civil Procedure Code.
It is the duty of a Court of Law to exclude all irrelevant or inadmissible evidence even if no objection has been taken by the opposite side.
A question as to the admissibility of a document:-
“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.
What does Section 35 of the Indian Stamp Act say?
As per Section 35 of the Indian Stamp Act dealing with instruments not duly stamped inadmissible in evidence etc., a Court of Law has an independent liability to decide the question of stamp duty, even if the parties fail to take up the point as was pointed out in Gita Devi Shah Vs. Chandra Moni Karnani, AIR 1993 Calcutta 280, 284. In Vasudevan Mullan V. Krishna Ramnath ILR (1953) Trav-Co 739 : 1953 Ker LT 533, it is held that the jurisdiction of the Court to decide the question of stamp duty under section 35 is only incidental to the reception of the document in evidence.
Once a document has been marked as an exhibit, Section 36 of the Stamp Act comes into operation.
Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction. AIR 1957 Raj 47, Reversed.” See. Javer Chand and Ors. Vs. Pukhraj Surana, AIR 1961 Supreme Court 1655. As a matter of fact, only when a document is formally proved and admitted in evidence be marked as an exhibit Section 36 of the Indian Stamp Act comes into operative play which enjoins that such an admission shall not be called into question at any stage as was held in Kuppammal Vs. Pethanna, AIR 1956 Madras 250.
1. Mahadeo Ghose Vs. Antariyani Das, 37 Cut LT 839 : 1971 (2) CWR 191, it is held that ‘once a document has been marked as an exhibit in the case and the trial has proceeded all along on the basis that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witness, section 36 of the Stamp Act comes into operation.’
2. Is there any exception to section 36 of Stamp Act?
The bar contemplated by section 36 of the Indian Stamp Act is not applicable where an instrument has been rejected as an inadmissible in evidence on account of a wrong order of the Court. Indeed, section 36 of the Indian Stamp Act cannot be construed in such a fashion as to override the ingredients of Section 105 of the Civil Procedure Code, as per decision Mannalal V. Sitambernath, 1961 Jab LJ 851 : 1961 MPLJ 169.
A document is already exhibited. How could the mode of proof be questioned? What is the legal position?
Order 13 Rule 1 and 3 of Civil Procedure Code does not debar a Court from reopening the question of admissibility of the document already exhibited and further that the mode of proof could not be questioned. See. Prabhu Dayal Vs. Suwa Lal and Anr, AIR 1994 Rajesthan 149.
‘Objection is mode of proof of document shall be taken when it is exhibited by trial Court and not in appeal for the first time.’ This was held in Dhruba Sahu (dead) and after him Nalumoni Sahu and Anr Vs. V.Paramananda Sahu, AIR 1983 Orissa 24 at page 25.
If after admission of a document which is subsequently found to be irrelevant or otherwise inadmissibility, what is its effect?
In Kissen Vs. Ram, 12 WR at page 13, it is held that ‘if after admission of a document which is subsequently found to be irrelevant or otherwise inadmissibility, it may be rejected at any time under the rule.’ Even an erroneous omission to object to an inadmissible evidence does not make it admissible, if the evidence per se is inadmissible under the Indian Evidence Act .See.Miller V. Madho 23 IA 106.
Endorsements on documents. (O.13, rule 4):-
Order 13 Rule 4 speaks of endorsements on documents admitted in evidence which ought to be strictly complied with, as opined by this Court. However, it is to be noted that the ingredients of Order 13 Rule 4 has nothing to do with the question whether a particular document has been admitted in evidence to admit a document in evidence, the endorsement as per Order 13 Rule 4 is quite sufficient and no express order as per Section 61 (1) of the Indian Stamp Act is not necessary as per decision Jageshar V. Collr, AIR 1966 A 392 FB.
In law, the marking of a document as an exhibit on the side of one party does not dispense with its proof as per decision Sait Tarajee Vs. V.Yelamarti, AIR 1971 SC 1865. Even the unproved documents cannot be regarded as proved merely because an endorsement has been made by stamp as per decision Firoz V. Nawabkhan, A 1928 L 342. A mere omission to make the formal endorsement does not render a document duly proved and exhibited the inadmissible as per decision Gopal Vs. Sri Thakurji, 1943 PC 83.
Document sought to be marked. No difficulty to come to the conclusion:- In Vincent Lourdhenathan Dominique and another Vs. Josephine Syla Dominique, 2008 (1) CTC 308 wherein it is held as follows:
“As per the guidelines given by the Division Bench, by applying the same to the facts of this case and contents of the document which is sought to be marked, there is absolutely no difficulty to come to the conclusion that this agreement is purported to create, declare, assign, limit and extinguish right, title and interest over the immovable properties and therefore, the document is required to be properly stamped and duly registered under the Indian Stamp Act and the Indian Registration Act.”
Document is neither stamped nor registered. (Sec. 35 Stamp Act)
In R.Deivanai Ammal (deceased by Labour Court) and Anr Vs. G.Mennakshi Ammal and Ors, AIR 2004 Madras 529, it is held that ‘Athakshi, a document of family arrangement reduced to writing relinquishing plaintiff’s right, interest and share in immovable properties of her father by accepting cash and jewels. The said document which is neither stamped nor registered cannot be relied upon in view of the specific bar under Section 35 of the Indian Stamp Act.’
Unregistered document viz., Receipt etc.
In P.Shanmugasamy Vs. Kausalya alias Krishnaveni, 2004 (4) CTC 324, it is held that ‘Unregistered document viz., Receipt for a sum of Rs.3,000/- cannot be received as evidence as it is not registered.’
Decide objection first:
In M.Chinnappan Vs. M.Ranganathan and anr, AIR 2005 Madras 105, it is held that ‘when an objection has been taken by the other party that a document is insufficiently stamped, then, it is incumbent on part of Court to decide objection first and then to proceed further’.
Objections regarding admissibility. How to deal?
The Hon’ble Supreme Court of India gave certain guidelines in Bipin Shantilal Pachal Vs. State of Gujarat and another, AIR 2001 SC 1158 which are useful to deal with such situations whenever any objection is raised regarding admissibility of any material in evidence.
1. “It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection.
2. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally.
3. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court.
4. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh.
5. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
I till now explained the relevant provisions for marking a document in the light of provisions of registration Act, Stamp Act and the Code of Civil Procedure,1908. Now, I will now show some important rulings to as documents relating to suit for partition.
An instrument of partition:-
In Roshan Singh & Ors vs Zile Singh & Ors, AIR 1988 SC 881. the Supreme Court while considering the necessity to effect registration of an instrument of partition held in paragraph 9:
“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 Section 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 Section 91 of the Evidence Act, 1872. Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.
(2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition”
Unregistered partition deed:-
Non-registration of a document which is required to be registered under Sec. 17(1) (b) of the Registered Act makes the document inadmissible in evidence under Cl. (cf) of Sec. 49 of the Registration Act, even though such a document can be used for a collateral purpose and that oral evidence can be adduced to establish that there was as disruption in status of the joint family.See. Chinnappareddigari Pedda vs Chinnappareddigari, AIR 1969 AP 242. In this case, it was further observed that it has been held in a series of decisions that an unregistered partition deed can be looked into for the purpose of finding out whether there has been severance in status. It is unnecessary to refer to all of them in view of the categorical pronouncement of the Supreme Court in Naini Bai Vs. GIta Bai.
Effect of unregistered partition deed:- The effect of unregistered partition deed and held that an unregistered partition deed is inadmissible in evidence and cannot be looked into for the terms of partition but can be looked into for the purpose of establishing a severance in status. See. Chinnappareddigari Pedda Muthyalareddy vs Chinnappareddigari Venkata Reddy, AIR 1969 AP 242. Latest ruling of 2017, Moghal Sardar Hussain Baig vs Syed Farveej Begum, CRP.No. 1115 of 2017,dated 1207-2017.
Family arrangement: How to prove it?
1. If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
2. If the family arrangement is stamped, but not registered, it can be looked into for collateral purposes. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purpose.
3. A family arrangement which is not stamped and not registered, cannot be looked into for any purpose, in view of the specific bar in Section 35 of the Indian Stamp Act. A document must be read as a whole.
4. As to the nature of transaction under the document, it cannot be decided by merely seeing the nomenclature. Mere usage of past tense in the document should not be taken indicative of a prior arrangement.
The expression collateral purposes is vague one:
The expression collateral purposes is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it collateral purpose, a party cannot use the unregistered document in any legal proceeding to bring about indirectly the effect which it would have had, if it is registered.
When the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is, then that it would be a document of title declaring for future what rights in what properties the parties possess.”
A family arrangement can be arrived at orally. The terms in the family arrangement may be recorded in writing as a memorandum of what has been agreed between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there be no hazy notions about it in the near future. It is only when the parties reduce the family arrangement in writing with an object of using that writing as proof of what they have arranged and, where the arrangement has been brought about by the document as such, that the document would require registration as it is then that it will be a document of title declaring for future what rights in what properties the parties possess.
A document is a record of a family arrangement:
In A.C.Lakshmipathy Vs. A.M.Chakrapani Reddiar, (2001) 1 MLJ 1 at page 7, it is held that where the document is nothing but a memorandum of what had taken place and as such, it is not a document requires compulsory registration as per Section 17 of the Registration Act. In Audesh Singh V. Sirtaji kuar AIR 1937 Oudh 347 at page 349, it is held that where a document is a record of a family arrangement, it is not liable to compulsory registration because it is based upon the recognition of a pre-existing right.
A family settlement:-
In Mahadei kunwar V. Padarath Chaube AIR 1937 All. 578 at page 579, 580, it is observed that there may be a family settlement in which there is some transfer of property as well along with the settlement of dispute, which to the extent of such transfer would stand on a different footing. By and large, a document styled as family arrangement is not immune from registration, in the considered opinion of this Court. However, it is a question of fact where a family arrangement requires compulsory registration or not, to be determined in each case based on the contents and interpretation of the document and the surrounding circumstances of the case, by taking into consideration whether the document in question itself creates title or it only acknowledges antecedent title to the property. If the family arrangement involved a declaration of right, then, it requires registration. See. Chandreshwar Singh Vs. Ramchandra Singh, AIR 1973 Pat. 215 at p.223.
”A transfer of property or deed of partition”
The essential requirements of the Indian Stamp Act, Indian Registration Act, 1908 and the Transfer of Property Act have to be complied with, where the transaction is intended to operate as a transfer. These Acts cannot be evaded by the parties merely describing the document as a family settlement or arrangement when, in truth and substance it is either a transfer of property or deed of partition as was observed in Raghubir Datt Pandey Vs. Narain Datt Pandey, AIR 1930 All. 498 (2).
A memo of partial partition:-
In Kalaivani @ Devasena and another V. J.Ramu and 8 others, 2010 (1) CTC 27, it was observed as follows:
“In a partition Suit, plaintiff sought to mark a document styled as a memo of partial partition. Objection to the marking of the said document was raised on the ground that rights were created under the same and therefore it is inadmissible in evidence. The Trial Court accepted the objection and rejected the document. However High Court held that though the document is unregistered and unstamped, it can be looked into for collateral purposes, provided the deficit stamp duty along with penalty is paid upto date.”
In Bapayya Vs. Ramakrishnayya, 1938-1 Mad L J 582, AIR 1938 Mad 568, it was held that where unregistered partition list were sought to be put in evidence for the purpose of providing a partition between the parties, the question to be decided was whether the documents constituted the bargain between the parties, or they were merely the record of an already completed transaction, the question being whether there was a sufficient dissociation of the transaction. See also. Roshan Singh & Ors vs Zile Singh & Ors, AIR 1988 SC 881. Ambati Durgamma And Ors. vs Pericherla Jagapathiraju, 2005 (1) ALD 607, 2005 (1) ALT 357.
Partition lists containing a list of the properties:
In Gnanamuthu Nadan v. Velukanda Nadathi, 19 Mad LW 494: (AIR 1924 Mad 542), the partition lists containing a list of the properties which fell to the share of a sharer in a partition, though they were signed by the co-sharers and duly attested, were held not to require registration when they contained no words which could be construed as creating partition of status. In that case the heading of that document gave the name of the particular sharer and set out various items as his share. The list was signed and attested, and it bore a date. It was found in evidence that the lists were drawn by lots in the names of individuals, to whose share the items fell. The learned Judges held that the written deed could be treated only as minutes of agreement and not a completed partition and that, though unregistered, could be admitted in evidence.
Whether a document is a partition deed or it is only a memorandum of partition/family settlement, the recitals as well as the surrounding circumstances of the document are to be looked into. A Court of law is expected to dissect the transaction, scrutinise its legal implications and the legal consequences which follow. Please see ruling of His Lordship Hon’ble Sri Justice M.Venu Gopal, Madras High Court in Manickam vs Chinnasamy, C.R.P.PD.No.58 of 2010 and M.P.No.1 of 2010 decided on 28 July, 2011
Where the settlement is clearly of a nature which purports or operates neither to create, to assign or extinguish any title or interest, in present or future, in immovable property, nor does it ‘declare’ any such right, title or interest, it need not be registered. The nature of such a document is described as an acknowledgement of an antecedent title, as per decision of Privy Council, Khunnilal V. Govind Krishna Narain (1911) M.W.N. 432: 21 M.L.J. 645 (P.C).
Recognition of a pre-existing right:
Where a document is a record of a family arrangement, it is not liable to compulsory registration because it is based upon the recognition of a pre-existing right. Held in 1937, Audesh Singh Vs. Sirtaji Kaur, AIR 1937 Oudh 347:
In Smt. R. Seethamma @ Seetha vs M. Thimma Reddy, Appeal Suit No.349 of 2016, Judgment dt.27-04-2017, it was observed that the expression instrument of partition, as originally defined in section 2 (15) of the Indian Stamp Act, 1899 did not include a Memorandum recording past partition. This is despite the fact that a memorandum would also come within the definition of the word instrument. Realizing that this created a loophole in the law relating to Stamp Duty, the State of Andhra Pradesh made an amendment to the Indian Stamp Act, 1899 by A.P. (Amendment) Act 17 of 1986, w.e.f., 16.08.1986. By this amendment, the words and a memorandum regarding past partition was inserted in the definition of the expression instrument of partition under Section 2 (15) of the Indian Stamp Act, 1899.
The essential requirements of the Indian Stamp Act, Indian Registration Act, 1908 and the Transfer of Property Act have to be complied with, where the transaction is intended to operate as a transfer. These Acts cannot be evaded by the parties merely describing the document as a family settlement or arrangement when, in truth and substance it is either a transfer of property or deed of partition It is generally to be decided by a Court of Law then and there when an issue crops up before it as to the admissibility of a document whether it requires compulsory registration or not under the Indian Registration Act or whether it has not been stamped or has not been properly stamped as per Indian Stamp Act. Indeed, the admissibility or otherwise of a document is to be decided when the same is ushered in evidence during the conduct of trial of the suit.
A Court of law is expected to dissect the transaction, scrutinise its legal implications and the legal consequences which follow.
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