By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
12 Family arrangement or partition deed :
For the purpose of stamping & Registration the contents of document are to be
taken into consideration and not nomenclature — Transfer of Property Act; S. 5,
Stamp Act, S. 35.
The father and mother of the plaintiff owned properties
comprising of houses, shops and vacant sites and they died intestate leaving
behind the plaintiff and defendants as their legal heirs. The defendant
attempted to partition the properties with the help of local people and
panchayatdars which was not agreed to by the plaintiff. After prolonged
negotiation the defendants ultimately agreed for an amicable partition of
movable and immovable properties. When the plaintiff claimed for division of
ard
share the defendants resisted the same and the plaintiff filed the suit.
According to the defendant the agreement for partition was
reduced to writing before the panchayatdars and signed by the plaintiff and
defendants. The trial judge rejected the document produced by the defendants on
the ground that it was a partition deed and unless it is stamped and registered
the same cannot be admitted.
The Court held that to decide about the nature of a document
whether it requires to be stamped or to be registered, it is the contents of the
document, that are to be taken into consideration and not the nomenclature
alone.
The law is well settled that in cases where partition among
the joint owners had already taken place and the factum of the partition
effected earlier was put in writing on a later point of time and the properties
are enjoyed as per the said partition, the same can be termed as a family
arrangement and need not be treated as a partition deed and therefore, the
question of stamping and registering the same does not arise. On the other hand,
if an agreement itself creates a right for the first time as a document, then
one has to consider the contents of the agreement, instead of the nomenclature.
Merely because it is stated in the agreement that in respect of the gold, jewels
and silver utensils the same have already been divided among the family members
in the presence of panchayatdars, it does not mean that all other immovable
properties have also been divided already. A reading of the entire agreement
clearly showed that there was no recital to the effect that it was for recording
the earlier partition which had already taken place that the said agreement was
entered into. In that view of the matter, the said agreement cannot be marked as
a document, since it requires to be stamped and registered so as to be admitted
in evidence.
In this regard the Hon’ble Court relied on the Division Bench
decision in case of A.C. Lakshmipathy v. A. M. Chakrapani Reddiar & Ors.,
2001 (1) Law Weekly 257 wherein the legal position is summed up as under :
(a) “I. A family arrangement can be made orally.
(b) If made orally, there being no document, no question of
registration arises.
(c) If the family arrangement is reduced to writing and it
purports to create, declare, assign, limit or extinguish any right, title or
interest of any immovable property, it must be properly stamped and duly
registered as per the Indian Stamp Act and Indian Registration Act.
(d) If the family arrangement is stamped but not
registered, it can be looked into for collateral purposes.
(e) A family arrangement which is not stamped and not
registered cannot be looked into for any purpose in view of the specific bar
in S. 35 of the Indian Stamp Act.” and applying the above guidelines to the
facts of the case and contents of the document which is sought to be marked,
concluded that the agreement was purported to create, declare, assign, limit
and extinguish right, title and interest over the immovable properties and
therefore, the document was required to be properly stamped and duly
registered under the Indian Stamp Act and the Indian Registration Act.
Therefore, the document requires execution on proper stamp papers and
registration as per the Indian Registration Act.
[Vincent Lourdhenathan Dominique v. Josephine Syla
Dominique, AIR 2008 (NOC) 1173 (Mad.)]
