Family Arrangement Document not compulsorily Registrable – Memorandum of family arrangement – Admissible in evidence without being registered or stamped:

The plaintiffs instituted a suit for declaration and cancellation of a registered sale deed dated 11-08- 2004 and mutation No. 1216 dated 20-08-2004 in favour of Bithaldas and consequential injunction. It was the claim of the plaintiff that the suit property was ancestral in nature and hence their predecessor Ballabhdas, arrayed as defendant No. 1 in the suit, had no right to execute the release deed dated 11-08-2004 in favour of Bithaldas defendant No. 3 in the suit.

The plaintiff claimed that this document was a partitition deed and for want of stamp and registration was inadmissible in evidence. According to the plaintiff, from the language of this document, it clearly emerged that it was not a recording of a past event but partition was effected through the document itself and hence as per the provisions of the Stamps Act and Registration Law, the document ought not only to be liable to be properly stamped but registered as well and as the document fell short of both these mandatory requirements, it was inadmissible for all purposes.

The defendant claimed that the document in question was not a partition deed but merely a memorandum of family arrangement and hence was neither required to be stamped nor registered and was admissible for all purposes. It was further contended that the family arrangement had already been acted upon and consequently a second family arrangement was executed and hence the plaintiff cannot challenge the validity of the document dated 23-09-1972.

The court observed that for a document, to be termed as an instrument of partition, leviable to be stamp duty it must be a document effecting transfer. The title to the property in question has to be conveyed under the document. The document has to be a vehicle for the transfer of the right, title and interest. The document has to be the sole repository for the ascertainment of the rights. Each and every document involving the fact of partition cannot be included within the expression ‘instrument of partitition’. A paper, which is recording a fact or attempting to furnish evidence of an already concluded transaction under which the title has already passed, cannot be treated to be such an instrument.

In the instant case, the writing in question was merely a memorandum of family arrangement and not an instrument of partititon requiring levy of stamp duty or required to be compulsorily registered. The property involved was the joint family property of ‘B’ and his three sons and the said fact was admitted in the writing. So, the rights of sons were not created for the first time through this document. The document was not the vehicle for transfer of rights. By the mere fact that the document contained the word like ‘today’ does not make it an instrument of partition, therefore, the writing has held to be a memorandum of family arrangement and admissible in evidence without it being stamped or registered.