BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2010 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P(PD)(MD)No.182 of 2010 and M.P.(MD).No.1 of 2010 1. Murugan 2. Sivakumar 3. Rajee 4. Samundeswari 5. Shanthi .. Petitioners/Defendants 2 to 5 Vs 1. Ramaiah alias Ramasamy .. First respondent/Plaintiff 2. Velu .. Second respondent/Defendant No.1 PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India against Fair and Decretal Order passed in I.A.No.405 of 2008 in O.S.No.172 of 2007 on the file of the Additional District Munsif Court, Ambasamudram dated 14.10.2009. !For Petitioners ... Mr.K.Srinivasan :ORDER
The defendants 2 to 5 in O.S.No.172 of 2007, on the file of the
Additional District Munsif Court, Ambasamudram are the Revision Petitioners.
2. The first respondent in this revision filed the above suit for
partition. Trial has commenced and proof affidavit of P.W.1 was also filed. The
first respondent/plaintiff wanted to mark the Yadhasthu, dated 15.04.2007,
executed by the second and third defendant/first and second petitioner herein
and that was objected by the defendants stating that document requires
registration and as it is not registered and not duly stamped, the said document
cannot be marked. Therefore, the first respondent filed I.A.No.405 of 2008 in
O.S.No.172 of 2007, for marking the said document stating that the document,
dated 15.04.2007 executed by the second and third defendants is only an
agreement and no division of property had taken place under that document and no
property was allotted to anybody and hence, it does not require registration or
stamp duty. That petition was objected by the revision petitioner herein
stating that the document cannot be marked as it is not registered and not duly
stamped. The learned District Munsif allowed the application stating that by
marking the document no prejudice will be caused to the defendants and to prove
the plaintiff case, the document is required to be marked. Aggrieved by the
same, this revision is filed by the defendants 2 to 5.
3. It is submitted by the learned counsel for the revision petitioners
Mr.K.Srinivasan that a reading of the document would make it clear that the
document requires registration and it is not duly stamped and title has been
passed under the document and document cannot be treated as an agreement as
contended by the first respondent . He also relied upon a decision of the
Division Bench of this Court in R.Deivanai Ammal(Died) and another .vs.
G.Meenakshi Ammal and others reported in 2004(4) CTC 208 and submitted that, in
that case, a similar document, namely, Ex.B.28 was considered by the Hon’able
Division Bench and held that the documents required registration and stamp duty
and hence, the document cannot be marked.
4. To appreciate the contention of learned counsel for the petitioners we
will have to see contents of the document which reads as follows:
ghf cld; gof;if
mk;ghrKj;jpuk; jhYfh, MH;thh;Fwpr;rp BgUuhl;rp fy;ahzp bjUtpy; 42k; ek;gh;
tPl;oy; trpf;Fk;, Byl; nrf;fpMr;rhhp Fkhuh;fs;, E.KUfd;Mr;rhhp
E.rptf;Fkhh;Mr;rhhp. ehA;fs; nUtUk; Brh;j;J Fk;gBfhzk; vA;fs; jhj;jh uhikah
Mr;rhhp mth;fSf;F, vGjp bfhLj;j ghf cld;gof;if vd;dbtd;why; vA;fs; nUtUf;Fk;
bghJthf cs;s nlj;jpy; Vw;fdBt tPLfl;otpl;lgoahy; &. nlj;jpd; ghjp vd;d mst[,
tUfpwBjh mBj mstpw;F jhA;fSf;F MH;thh;Fwpr;rp BgUuhl;r;rpapy;, uapy;Bt
!;Blrd;f;F fpHf;Bf, VjhtJ xU fhypkidia thA;fpjUfpBwhk;, kidf;F cs;s
fpuaj;bjhifia ehA;fs; fl;o tpLfpBwhk;, rhh;gjpthsh; mYtyfj;jpy; MFk; bryit,
uhkrhkp Mr;rhhp Mfpa ePA;fs; Vw;Wf;bfhs;s Btz;Lk;. ne;j cld;gof;ifia 2007k;
tUlk; $`d; khjk; 30 jPf;Fs; Koj;J jUfpBwhk;. &. Bjjpf;Fs; Koj;J ju jtwpdhy;
vA;fs; nUtUf;Fk; ghj;jpag;gl;l (uhkrhkp Mr;rhhp, KUfd; Mr;rhhp, rptf;Fkhh;
Mr;rhhp) nlj;jpy; rhpghjp kidia ju rk;kjpf;fpBwhk;.
5. It is seen from the said document that the executant E.Murugan Asari,
E.Sivakumar Asari have agreed to purchase the land east of Alwarkurichi Railway
Station and agreed to pay the sale consideration for the land and also bear the
registration expenses. It was further stated that they would purchase the
property before 30.06.2007 and in case of default, their property can be divided
into equal shares and 1/2 share can be taken by the grand-father Ramaiah Asari.
The above said document was executed by E. Murugan Asari, E. Sivakumar Asari in
favour of their grand-father Ramaiah Asari. A perusal of the said document and
the recitals made therein, make it clear that the executant agreed to buy some
property in the name of their grand-father Ramaiah Asari at a particular place,
on before a particular date, failing which, they agreed to give 1/2 share in
their property. Therefore, under this document no right, title is created in
favour of the Ramaiah Asari nor the executants relinquished their rights in
favour of Ramaiah Asari. The executants have only agreed to purchase some
property in the name of Ramaiah Asari, failing which, they have agreed to give
1/2 share in their property. Therefore, this document cannot be construed as a
partition deed nor any right or title is transferred under the document. Hence,
in my opinion, the document does not require any registration and being an
agreement, it requires stamp duty. In the reported Judgment cited by the
learned counsel for the petitioners, under the document the parties have
relinquished their right. Hence, it has been held in the Judgment that it is
clear from Ex.B.28 and evidence let in that in lieu of their share in the
properties of Ganapathy Moopanar, the plaintiff and first defendant received the
cash and jewels and relinquished their rights. It is seen from that document
only on the date of execution, the plaintiff and the first defendant received
the cash and jewels and relinquished their right in the property of Ganapathy
Moopanar. In that context only, the Hon’able Division Bench of this Court held
that the document required registration.
6. Here, the facts are different and as per the contents of the document
it does not create any right or title in any of the properties in favour of
anyone and no relinquishment had taken place under the document. Hence, the
lower Court has rightly allowed the application and marked the document on the
side of the plaintiff. According to me, the said document does not require
registration and the lower Court has correctly marked the document. Hence, I do
not find any reason to interfere with the order of the lower court and the Civil
Revision Petition deserves to be dismissed.
7. In the result, the Civil Revision Petition is dismissed. Consequently,
connected Miscellaneous Petition is dismissed. No costs.
skn/vsn
To
The Additional District Munsif,
Ambasamudram.