Allowed

Ranchhod Dharamdas Mali v. Laxman Dharamdas Mali and Others

Bombay HC8 Dec 2017LPA/44/2013

Case brief

AI extract

What is this about?

The High Court allowed the Letters Patent Appeal, holding that while an unregistered family arrangement can be used for collateral purposes, it must be properly stamped. Since the Single Judge failed to consider stamp duty requirements, the impugned judgment was quashed, and the document must be impounded and stamped before use.

What did the court decide?

Impugned judgment of Single Judge and Trial Court quashed; appellant directed to use document for collateral purpose only after impounding and paying proper stamp duty.

Ranchhod Dharamdas Mali Vs Laxman Dharamdas Mali and Others — Property and Title | Bombay HC (2017)

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( 1 ) lpa44.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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LETTERS PATENT APPEAL NO. 44 OF 2013 IN WRIT PETITION NO. 2705 OF 2012 WITH

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CIVIL APPLICATION NO.3353 OF 2013

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Ranchhod Dharamdas Mali

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..Appellant

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Versus

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Laxman Dharamdas Mali & Ors.

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..Respondents

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Mr.J.R. Shah, Advocate for the appellant.
Mr.P.V. Barde h/f. Mr.N.L. Choudhari, Advocate for the
respondents.

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CORAM : S.V.GANGAPURWALA &
S.M.GAVHANE,JJ.
DATED :08.12.2017

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P.C. :-

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1.The order of the learned Single Judge dismissing
the writ petition is assailed.

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2.Mr. Shah, learned Counsel submits that the document

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in question “Partition-Deed” is unregistered and is also not
properly stamped. In view of that the document is
inadmissible in evidence. Learned Single Judge has failed to

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consider the aspect of the document being insufficiently
stamped in its correct perspective. Learned Counsel relied
on the provision of section 34 of the Bombay Stamp Act.

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3.Mr. Barde, learned advocate submits that present
LPA is not maintainable and order is passed under Article 227
of the Constitution of India as learned Single Judge was
exercising the jurisdiction under article 227 of the
Constitution of India and relied upon judgment of Division
Bench of this Court in the case of Mansaram Sampat Patil &
Ors. Vs. Sambhu Harchand Chaudhary & Ors., 2004(4)
Mh.L.J.1105.

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4. Learned Advocate further submits that the document
which is in the nature of family settlement and is a
memorandum of partition, does not require compulsory
registration. Learned Advocate relied on the judgment of
Apex Court in the case of Kale and Others Vs. Deputy Director
of Consolidation & Ors., AIR 1976 SC 807 and another judgment
of the Apex Court in the case of Amteshwar Anand Vs. Virender

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Mohan singh & Ors., AIR 2006 SC 151.

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5.Mr.Shah, learned advocate for the appellant relies
on the judgment of Full Bench of this Court in the case of
Advani Oerlikon Ltd. Vs. Machindra Govind akasare & Ors.,
2011(2) Mh.L.J.916to contend that it is open to the Court

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while dealing with the petition filed under Articles 226 or
227 of the Constitution of India or LPA under clause 15 of
the Letters Patent arising from the judgment in such petition
to determine whether the facts justify parties in filing the
petitioner under Articles 226 and 227 of the Constitution of
India.

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6.With the assistance of learned counsel for the
respective parties, we have gone through the judgment
delivered by learned Single Judge of this Court.

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7.Learned Single Judge of this Court relied upon
observations made in the case of Kale & othersreferred

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supra, holding that the document is dated 08.01.1985 and the
arrangement agreed in the said group has been worked all
these years till the date and on such count the learned

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Single Judge has observed that the contentions that the said
document is not registered or is required to be registered or
the defendant is required to pay stamp duty before the same
is received in evidence deserves no consideration and further

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it has been observed that the said document produced on
record is allowed to be exhibited only for collateral purpose
and as such upheld the order of the Trial Court.

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8.The trial Court has directed to exhibit the
document styled as “partition deed”. The Trial Court

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observed that the parties can use the said document for

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collateral purpose. If the document requiring compulsory
registration is not registered, then the document can be used

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for collateral purpose in view of section 49 of the
Registration Act. There would be no bar to refer said
document for collateral purpose. However, even if the
document is used for collateral purpose, the document is

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required to be stamped properly. Unless and until the
document is stamped the document cannot be admitted in

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evidence. Reference can be made to section 34 of the Bombay
Stamp Act. Reading the document, it appears that the

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document effects partition amongst the parties in front of

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panchas. In view of that even if said documents is used for
collateral purpose, the document will be required to be
stamped. It appears that while deciding the matter, learned
Single Judge did not consider section 34 of the Bombay Stamp
Act. As relevant provision was not considered by the learned
Single judge, we are inclined to exercise our jurisdiction
under Letters Patent.

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9.The judgment in the case of Kale and others(Supra)
relied upon by the learned advocate for the respondent is on
the point that family arrangement need not be registered so

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also the judgment in the case of Amteshwar Anand(Supra) is
regarding consent decree and effect of non-registration of
consent decree. In the present matter, the document in
question appears to be partition deed. The partition is
effected under the document “partition-deed”. As such same is
required to executed on the stamp duty as required under the
provisions of the Stamp Act.

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10.In the light of above, the impugned judgments of
the learned Single Judge and learned Trial Court are quashed
and set aside.

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11.In case the respondent desires to use said document

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of collateral purpose, then it may do so after impounding the
document on payment of proper stamp duty.

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12.The letters patent appeal is allowed. No costs.

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13.In view of disposal of the Letters Patent

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Appeal, Civil Application also stands disposed of.

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snk/2017/DEC17/ lpa44.13

Ranchhod Dharamdas Mali v. Laxman Dharamdas Mali and Others

Case brief

What is this about?

What did the court decide?

Ranchhod Dharamdas Mali v. Laxman Dharamdas Mali and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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