Allowed

Bijjala Tulasi Reddy, v. Bijjala China Bali Reddy

Telangana HC30 Nov 2012CRP/3080/2007

Case brief

AI extract

What is this about?

This common order dismissed an infructuous petition and allowed three civil revision petitions. The court held that a trial court must decide objections regarding the correctness of stamp duty and penalty on a disputed partition deed before examining witnesses or proceeding with the suit final disposal.

What did the court decide?

The impugned order allowing witness examination and final disposal proceedings is allowed to the extent of quashing it, with a direction to the trial court to first decide the objection regarding stam

Bijjala Tulasi Reddy, Vs Bijjala China Bali Reddy — Partition | Telangana HC (2012)

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THE HON'BLE SRI JUSTICE N. RAVI SHANKAR

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CIVIL REVISION PETITION Nos.2363, 3076, 3079 and 3080 of 2007

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COMMON ORDER:

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All these four revisions arise out of the same suit i.e. O.S.No.19 of 2002 on the file of the Court of the Additional Senior Civil Judge, Nandyal (trial court). To decide the controversy in these revisions, the circumstances under which they came to be filed and the respective contentions of the parties should be noted and consequently an elaborate order has become necessary.

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2. The suit O.S.No.19 of 2002 was brought for cancellation of a registered gift settlement deed dated 04.01.2002 said to have been executed by the first defendant in favour of defendants 2 and 3 as not binding on plaintiff with regard to his 1/4^th undivided share in the plaint schedule property and also for partition and separately possession of his 1/4^th share in the said property. Defendants 1 and 2 in the said suit are parents of the plaintiff and defendants 4 to 7, while defendant No.3 is the son of defendant No.6. Defendant No.7 is said to be sister of plaintiff and defendants 4 to 6.

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3. According to the plaintiff himself and defendants 4 to 6 and their father constituted a coparcenery and initially they partitioned their properties through a registered partition deed on 15.09.1957. At that time, according to the plaintiff, himself and defendants 4 to 6 were minors and therefore they were represented by their maternal uncle. The plaint also contains a mention about the shares allotted to them in that partition. It is the case of the

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plaintiff that even subsequent to the partition after they grew up himself, his father and brothers had purchased some properties in their names till 1983 through registered sale deeds.

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4. The version of the plaintiff is that in addition to the other properties purchased by them and his brothers all had also jointly purchased the plaint schedule property on 12.04.1977 with their joint amounts and kept it in the name of the first defendant with an intention to partition it at a later date. It is the further version of the plaintiff that they had all thrown their properties purchased from 1957 to 1983 into joint hotchpotch and again partitioned the properties in 1983 and partition lists have been drawn up 15.06.1984 with regard to the division of the properties and signed by all.

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5. The plaintiff’s case is that in the partition list dated 15.06.1984 he got 1/4^th share in the plaint schedule property. The plea of the plaintiff is that the first defendant taking undue advantage of the fact that he was allowed to enjoy the rents from the plaint schedule property has executed illegally the present settlement deed on 04.01.2002 giving life estate to the first defendant’s wife and the vested remainder to the third defendant who is the son of the 6^th defendant. It is also alleged that the 6^th defendant instigated the first defendant to execute that settlement deed. His plea is it is not binding on him.

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6. The plaintiff brought the suit for setting aside the above settlement deed and to recover his 1/4^th share in the suit property. The other details are mentioned in the plaint. The controversy in the suit has to be decided in the suit and not in

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these revisions.

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7. The trial commenced. In the course of trial, the plaintiff introduced the partition document dated 15.06.1984 to be marked as an exhibit. That was unstamped and unregistered. The plaintiff’s counsel sought to introduce that document in evidence on the ground that even if it is held to be compulsorily registerable it can be looked into for a collateral purpose or transaction for showing division in status and therefore it should be admitted in evidence. The trial court however by its separate order dated 03.11.2006 held that the above document dated 15.06.1984 is a partition deed falling within the meaning of Section 2(15) of the Stamp Act and was exigible to stamp duty and penalty. It then held that the partition list though compulsorily registerable, could be admitted in evidence for a collateral purpose/transaction as urged by the plaintiff, but as stamp duty and penalty are not paid, it cannot be admitted even for that purpose. It is questioning this order, the plaintiff filed CRP No.2363 of 2007 insofar as it related to payment of stamp duty and penalty.

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8. Subsequently, the plaintiff filed three interlocutory applications i.e. I.A.Nos.188, 189 and 190 of 2007 in the suit to delete certain observations made by the trial court in the depositions of P.Ws.3 and 4 who are the witnesses of the plaintiff. The trial court partly allowed I.A.Nos.189 and 190 of 2007 by its common order dated 28.06.2007 and as a consequential order it allowed I.A.No.188 of 2007 which was filed for reopening the suit. The other details are not necessary. In the common order dated 28.06.2007 of the trial court referred to supra, it is mentioned that after the order dated 03.11.2006 which is questioned by the

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plaintiff in his CRP No.2363 of 2007 the plaintiff paid the stamp duty and penalty on his partition list dated 15.06.1984 and whether it is correct or not has to be decided by the trial court but it did not decide it.

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9. In view of the payment of the stamp duty and penalty by the plaintiff as calculated by the office of the trial court after filing of the plaintiff’s CRP, it follows that the said CRP can be said to have become infructuous inasmuch as in the order dated 03.11.2006 the trial court held that the said partition list can be looked into for a collateral transaction as pleaded by the plaintiff and this is already referred to supra. Thus that portion of the order holding that the partition list is admissible for a collateral transaction can be said to have become final inasmuch as defendants 3 and 6 did not question it. The plaintiff cannot have any grievance on that aspect.

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10. In the course of arguments in the CRPs earlier, the above aspects regarding payment of stamp duty and penalty were not brought to my notice. The matter was reopened to to get clarification on that aspect. Sri Veera Reddy, the learned counsel appearing for the plaintiff admitted the payment of stamp duty and penalty and therefore CRP No.2363 of 2007 is dismissed as infructous. The other three CRPs filed by the defendants 3 and 6 have to be decided on merits now.

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11. Now coming to the said three CRPs, as already mentioned, the plaintiff filed I.A.Nos.189 and 190 of 2007 to expunge certain observations made by the trial court in the depositions of P.Ws.3 and 4. Those observations relate to a concession said to have been made by the plaintiff’s counsel with regard to the present

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partition list relied upon by him and the cross-examination of P.Ws.3 and 4 by the counsel for defendants 3 and 6 with regard to the said partition list. The trial court in its common order dated 28.06.2007 refused to expunge the said remarks, but directed the counsel for defendants 3 and 6 to cross-examine P.Ws.3 and 4 with regard to the partition list relied upon by the plaintiff by holding that all their objections with regard to the admissibility of the partition list in evidence can be decided at the time of final disposal of the suit including the nature of the document. Defendants 3 and 6 are aggrieved by this portion of the common order dated 28.06.2007. Thus they filed the said CRPs separately questioning the order in I.A.Nos.189 and 190 of 2007 and the separate order passed in I.A.No.187 of 2007.

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12. The objection of defendants 3 and 6 is that the trial court in its order dated 03.11.2006 already held that the partition list is exigible to stamp duty and penalty and even though the plaintiff paid stamp duty and penalty as calculated by the office of the trial court subsequently, that is not correct stamp duty and penalty and much more has to be paid as the plaintiff has undervalued the properties in the partition list and the trial court ought to have decided their objection first before proceeding with the suit further. The trial court took the view that this objection including the nature of the document can be decided at the time of disposal of the suit and Sri Veera Reddy says that it can be a proper course, whereas Sri Veera Swamy, the learned counsel for the defendants 3 and 6 says that it ought to be decided first. This is the controversy in these three CRPs.

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13. I am of the opinion that the above objection raised by

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defendants 3 and 6 has to be sustained for the following reasons.

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14. To repeat, as already mentioned, the trial court in its order dated 03.11.2006 held that the partition list sought to be introduced on behalf of the plaintiff is in fact a partition deed falling within the meaning of Section 2(15) of the Stamp Act and it is exigible to stamp duty and penalty as such. Thereupon, the plaintiff paid the stamp duty and penalty as calculated by the office of the trial court. This is admitted by Sri Veera Reddy also. Further the order dated 03.11.2006 would also show that the plaintiff advanced a contention that even if the partition list, assuming for a moment, is compulsorily registerable, it can be admitted in evidence for the collateral transaction of showing division in status as contemplated under the Proviso to Section 49 of the Registration Act. The trial court rightly observed that once a document is found to be exigible to stamp duty and is not stamped, it cannot be looked into for any purpose including a collateral purpose or transaction unless the stamp duty and penalty are paid. This is consistent with Section 35 of the Stamp Act which says that no instrument chargeable with duty shall be admitted in evidence for any purpose by a Court unless such instrument is duly stamped.

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15. It may be noted that once a court orders payment of stamp duty and penalty and that is paid even as per calculation of the office of that court, but where the opposite party raises an objection that the stamp duty and penalty paid are not correct having regard to the finding of the court regarding the nature of the document, the court has to decide that objection and answer it. It cannot postpone the decision on that objection saying that it can be decided or will be decided at the time of disposal of the suit.

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There are two compelling reasons which support this view. The first is if that objection of the opposite party (defendants 3 and 6 in this case) is upheld and the plaintiff fails to pay the requisite stamp duty and penalty as determined by the court, the document has to be rejected as not admissible. In such a situation, the plaintiff will have an opportunity to adduce other evidence in support of his case or even to make a request for ending the document to the concerned authorities under the Stamp Act for determination of the correct stamp duty and penalty to be paid or pay to stamp duty and penalty as determined by it. The second is if the objection of the opposite party is rejected, the said party can pursue its remedies against such a view of the court.

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16. Now if the trial court proceeds to decide the above objection of defendants 3 and 6 at the time of final disposal of the suit which can be only in the judgment which is passed in the suit, then the aggrieved party cannot have any opportunity to pursue its remedies against the decision of the trial court and they may even be prevented from leading additional evidence in appeal also. The above situation which may result if the view of the trial court is upheld would only have the consequence of denying proper opportunity to the aggrieved party in pursuing the suit or contesting the suit properly and this cannot be said to be contemplated under law. The plaintiff’s counsel could not cite any legal provision or any decided case to take a different view. His contention that the said objection can be decided even at the time of disposal of the suit, cannot be accepted for the aforesaid reasons.

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17. For the aforesaid reasons, it follows that the objection of

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defendants 3 and 6 with regard to the correctness of stamp duty and penalty paid must be directed to be decided by the trial court having regard to its earlier order dated 03.11.2006 and pass necessary orders on the same in accordance with law in the first instance before taking up the suit for disposal including the crossexamination of P.Ws.3 and 4 by the counsel for defendants 3 and 6. It may also be noted that marking a document subject to objection does not amount to admitting a document in evidence. Thus the impugned order in these three CRPs can be said to suffer from an illegality which calls for interference.

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18. Accordingly, these three CRPs are allowed with the above direction. No costs.

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______________________ N. RAVISHANKAR, J

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30^th November 2012 CVRK/TJMR

Bijjala Tulasi Reddy, v. Bijjala China Bali Reddy

Case brief

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Bijjala Tulasi Reddy, v. Bijjala China Bali Reddy

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