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Judgment
Arun Bhansali, J. - These writ petitions have been filed by the petitioners aggrieved against the orders dated 5.8.2015 passed by the Trial Court in various suits, whereby on applications filed by the petitioners under sections 35 and 39 of the Rajasthan Stamp Act, 1998 (''the Act of 1998''), the Court came to the conclusion that the document in question appears to be a memorandum of family settlement and as the document is dated 5.9.1994 and the Act of 1998 came into force on 27.5.2004, which is not retrospective, rejected the application filed by the petitioner.
The respondent plaintiff filed a suit for eviction based on termination of tenancy under section 106 of the Transfer of Property Act, 1882 (The Act of 1882). It was, inter alia, indicated that the property was in the tenancy of the defendant for over 40 years and the defendant was depositing the rent in a joint account of petitioner along with his brothers. Where after it was, inter alia, averred in the plaint that in the partition of the family property, the shop in question came in the share of the respondent plaintiff and based on the said averments eviction was sought.
On an application filed by the petitioner under Order 11, Rule 12 , C.P.C., the document of family settlement was produced by the respondent-plaintiff where after the petitioner filed an application under sections 35 and 39 of the Act of 1998, inter alia, indicating that the document was insufficiently stamped, allegations were also made that the document also required registration.
No reply to the application was filed, however, after hearing the parties, the Trial Court came to the conclusion that the document was only a memorandum of family settlement and did not require registration. It also came to the conclusion that as the provisions of the Act of 1998 were not retrospective, no stamp duty was payable.
Learned Counsel for the petitioner submits that a bare look at the document reveals that the same is a document of partition, wherein all the parties have signed the same and, therefore, besides the fact that the same required registration, the same was clearly insufficiently stamped, it was further submitted that the finding of the Trial Court that the Act of 1998, which came into force on 27.5.2004 was not retrospective and, therefore was not applicable is wholly baseless as prior to coming into force of the Act of 1998, the document was governed by the Rajasthan Stamp Law (Adaptation) Act, 1952 (the Act of 1952), which aspect has been totally ignored.
Learned Counsel for the respondent supported the order impugned. It was submitted that the document being a memorandum only did not require registration and was bearing sufficient stamp duty and, therefore, die order impugned does not call for any interference.
I have considered the submissions made by learned Counsel for the parties and have perused the material available on record.
At the outset, it may be noticed that the various instruments executed in and out of the State of Rajasthan were governed by Indian Stamp Act, 1899 (the Act of 1899), which was made applicable by the Act of 1952 subject to other provisions of the Act of 1952. Various adaptations were indicated in section 3 of the Act of 1952, which inter alia inserted the II Schedule and since then stamp duty payable on various instruments in relation to matters within the competence of Central and State Legislature is governed by the rates indicated in the I and II Schedules respectively.
The II Schedule was amended from time to time by various Rajasthan Finance Acts. Where after, the Act of 1998 was passed by the State of Rajasthan, however, the said act was to come into force on the date to be notified and which was notified as 27.5.2004 and, therefore, the Act of 1998 came into force w.e.f. 27.5.2004. the II Schedule of the Act of 1998 contained all the rates, articles and instruments, which were applicable as per the II Schedule of the Act of 1952, however, the amendment, which took place between 1998 and 27.5.2008, were incorporated in the Act of 1998 by way of amendment in the Act of 1998 by Act 5 of 2004. As such the various article, which provided for payment of stamp duty on various document and instruments as indicated in the II Schedule were in existence since the coming into force of the Act of 1952 and it cannot be said that the stamp duty became applicable for the first time on 27.5.2004. Therefore, finding of the Trial Court in this regard is absolutely baseless and incorrect.
The Trial Court placed reliance on judgment of this Court in Birju Singh v. Additional District Judge (Fast Track) No. 1, Jhunjhunu and another, 2015 (2) DNJ (Raj) 513 The said judgment pertained to power of the Collector to stamp instrument impounded under section 44 of the Act of 1998, which power existed with the collector under the Act of 1899 under section 40. The determination in the case of Birju Singh (supra), holding that as the Act of 1998 came into force w.e.f. 27.5.2004, the provisions of section 44 had no application, can only be termed as sub silention as the provisions of the Act of 1899 as adapted by the Act of 1952 as applicable prior to coming into force of the act of 1998 have not been adverted to.
So far as the nature of document is concerned, the relevant part of the document reads as under :
"ge ikapksa i{kdkjku us LosPNk o LoLFk cq)h ls ijLij izse orZeku esa o Hkfo"; esa dk;e j[kus dh bPNk ls gekjh iSr`d la;qDr fgUnw ifjokj dh py vpy lEifRr dk foHkktu dqVqEch le>kSrk }kjk fuEu izdkj ls djrs gSaA tks ge ikapksa izfrKksa vkSj gekjs /kkoh mRrjkf/kdkfj;ksa dks ges''kk iw.kZ :i ls ekU; gksxk rFkk vifjorZu''khy gksxkA"
Section 2 (xx) of the Act of 1998 defines instrument of partition as under:
(xx) "instrument of partition" means any instrument whereby co-owners of any property divide, or agree to divide such properly in severalty, and includes :
(i) a final order for effecting a partition passed by any revenue authority or any Civil Court.
(ii) an award by an arbitrator directing a partition, and
(iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners."
A bare look at the said definition would reveal that even when a partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the said document would be included in the instrument of partition. Besides the meaning, which has been given in the Act of 1998 i.e. instrument, whereby co-owners of any property divide or agree to divide such property in severalty.
A bare look at the recital noticed hereinbefore clearly indicates that the respondent along with his brothers have agreed to divide the property of which they were the co-owners and, therefore, the document in question can safely be termed as an instrument of partition.
As the document has been found to be an instrument of partition, the same is liable for payment of stamp duty under Article 42 of the II Schedule attached to the Act of 1998 and the document in question is on its face insufficiently stamped.
The view thereof, the same is liable to be dealt with under the provisions of 39 of the Act of 1998 in hight of procedure laid down by Hon''ble Supreme Court Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpale and another, (2001) 4 SCC 197 and this Court in Indralal and another v. Saligram and another, 2011 (2) CDR 894. and followed by this Court in Smt. Suntta v. Municipal Council, Bhilwara and another, S.B. Civil Writ Petition No. 9977/2013, decided on 10.4.2015.
So far as the registration of the document is concerned, Mulla on the Registration Act (Twelfth Edition) p. 74, indicated stages of partition and extent of reliance of the respective stages through unregistered document, which reads as under :
"In the case of express completed partition, there are three different stages:
(1) the stage of effecting a division in status ;
(2) the stage of dividing the properties by metes and bounds ;
(3) the stage of parties taking possession of the properties allotted to them.
In respect of stages 1 and 3 even if there is a document it need not be registered, as the said stages cannot be said to "declare, assign, limit or extinguish" any right, title or interest to or in immovable property. It is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members, if it is reduced to writing, it requires registration under section 17 (1) (b) of the Registration Act. An unregistered partition deed, though not admissible to prove the terms of the partition, can be admitted in evidence for proving the stage (1) and (3), namely, the division in status and the nature and character of the possession of the shares, there being collateral purposes."
Further in Mallappa Durgappa Mayannavar and Others v. Durgavva and others, AIR 1982 Kant 214 it has been held that where a Instrument recorded both the severance of status of the joint family and partition of properties by metes and bounds, the same is admissible in evidence for the purpose of showing that there was severance of status and that the family no longer remained as undivided family or as coparcenary.
In view thereof, though the document in question requires, the same can be utilised for showing severance of status, which looking to the nature of suit would suffice as far as plaintiff is concerned.
In view of the above discussion, the writ petitions are allowed, the orders dated 5.8.2015 passed by the Trial Court are set aside to the extent that it has held document as admissible despite being insufficiently stamped.
The Trial Court is directed to deal with the document in question regarding insufficiency of stamp duty in light of observations and directions contained herein before. Petitions Allowed.