THE HON‘BLE SRI JUSTICE B. CHANDRA KUMAR
CIVIL REVISION PETITION No.4950 OF 2011
Lakkoji Mohana Rao, S/o. late Annayya, Aged 58 years, Cultivation,
R/o.Kottapalli Village, Kotabommali Mandal, Srikakulam District
1. Lakkoji Viswanadham, S/o.late Annayya, Aged 75 years, Cultivation.
2. Siva Kantha Rao, S/o. late Jogulu, Aged 50 years, Cultivation.
3. Simma Narasimhulu, S/o.late Jogulu, Aged 34 years, Cultivation.
4. Bommali Chandrayya, S/o.late Rajappadu, Aged 37 years, Cultivation.
(All are R/o.Kottapalli village, Kotabommali mandal, Srikakulam district)
Counsel for Petitioner: Sri P. Raj Kumar
Counsel for Respondents: Sri G. Surapu Naidu
? Cases referred :
1. 2004 (4) ALD 84.
2. AIR 1969 AP 242.
3. AIR 1988 SC 881.
4. 1998 (5) ALT 704.
5. 2004 (3) ALD 66.
6. 2010 (2) ALD 847.
7. (2008) 8 SCC 564.
8. 2011 (6) ALT 299.
9. 2010 ALT (2) 648.
10. 1977 (4) SCC 60.
Being aggrieved by the order dated 21-09-2011, passed in I.A. No.115 of
2011 in O.S. No.55 of 2005 on the file of Junior Civil Judge, Pathapatnam,
Srikakulam District, the present Civil Revision Petition is filed.
3. The brief facts of the case are as follows : The petitioner herein is the
elder stepbrother of the first respondent-plaintiff. The petitioner herein, his
mother and his elder sister filed O.S. No.87 of 1976 on the file of Principal
Senior Civil Judge, Srikakulam against the first respondent herein and his elder
sister for partition of the family land and the house property, the said suit
was decreed. In the Appeal i.e. in A.S. No.163 of 1978, the District Court,
allowed the Appeal in part and accordingly final decree was passed in I.A.
No.450 of 1978 and in terms of the said final decree, the properties were
partitioned and possession was delivered to each of the parties in E.P. No.61 of
1983, since then, the parties are in possession of their respective allotted
shares. The first respondent herein filed O.S. No.55 of 2005 alleging that the
petitioner herein has been attempting to trespass into the land allotted to him.
The petitioner herein has admitted about passing of the decree in O.S. No.87 of
1976 and also about the execution proceedings, but his main version is that
there was no actual delivery of the properties as per the proceedings in E.P.
No.61 of 1983, though it was only a paper delivery. His main case is that after
conclusion of the E.P. proceedings, the parties were not satisfied and the
disputes were not ended, then both the parties approached the elders and as per
the advice of the elders, the properties were again partitioned on 14-03-2004
and since then the petitioner herein is in possession and enjoyment of those
4. The further case of the petitioner is that the settlement entered into
before the elders was reduced into writing in the month of March, 2004 and
signed by both the parties and attested by elders. It is also his case that the
present case has been filed on the evil advice of one Guntamukkala Malati Rao of
Chatlathandara village without any cause of action. In the above circumstances,
the petitioner filed I.A. No.115 of 2011 under Order VIII Rule 3 C.P.C. to
receive the document dated 14-03-2004 and mark the same as an exhibit on his
behalf. His main case is that he could not file the said document when he was
examined as it was misplaced and that the said document is highly essential for
just determination of the case.
5. The first respondent-plaintiff opposed the marking of the said document.
His case is that the parties have partitioned their properties long back and the
first respondent-plaintiff is in possession and enjoyment of the plaint schedule
properties and that the alleged partition deed, dated 14-03-2004 is forged one
and created for the purpose of this case. It is also his case that the said
document requires registration and it is not stamped, so it cannot be looked
6. The lower Court dismissed the said petition holding that the said document
cannot be marked since it is neither stamped nor registered and the same is
inadmissible in evidence for any purpose under Section 35 of the Indian Stamp
Act, 1899 and also under Section 49 of the Registration Act, 1908.
7. Sri P. Raj Kumar, learned counsel for the petitioner, submits that the
petitioner could not file the document when he was examined as the document was
misplaced and that the document is necessary for the just conclusion of the
case. It is also submitted that the petitioner filed the said document only for
the purpose of proving his possession over the suit schedule property and not
for the purpose of proving his title. It is also argued that since the suit is
for bare injunction the lower Court ought to have allowed the application and
received the document for collateral purpose to enable the petitioner to prove
8. The learned counsel for the petitioner has relied on the case between
Khaja Habeebuddin Vs. Md. Ibrahim and others1 wherein, a suit for partition was
filed in the year 2001, the defendants pleaded that there was prior partition
way back in the year 1957, they filed the partition deed dated 15-07-1957 and an
award dated 16-08-1957, it was held that the documents can be received in
evidence for collateral purpose i.e. to show the severance of status and nothing
more. For the same proposition he has relied on the case between
Chinnappareddigari Pedda Muthyalareddy V. Chinnappareddigari Venkatareddy and
others2. Reliance is also placed in the case between Roshan Singh and others V.
Zile Singh and others3 wherein it was held that a mere agreement to divide does
not require registration. He has also relied in the case between Smt. Kaheeda
Moin and others Vs. Md. Iqbal Ali and others4 wherein it was held that
unregistered partition deed can be admitted in evidence for collateral purpose
for proving the factum of partition and nature of possession of the parties. He
has also relied on the case between Amangenti Prameela and another Vs. P. Venkat
Reddy by LRs and others5 wherein it was held that a Xerox copy can be admitted
as secondary evidence. Reliance is also placed on the case between Pariti
Suryakanthamma and another V. Saripalli Srinivasa Rao and another6 in support of
his contention that an unregistered and unstamped document can be received in
evidence for collateral purpose. For the same proposition, he has relied on the
case between K.B. Saha and Sons Private Limited V. Development Consultant
9. Sri G. Surapu Naidu, learned counsel for the first respondent-plaintiff
submits that the suit in O.S. No.55 of 2005 filed by the first respondent was
decreed long back and the parties were put in possession of the property in E.P.
No. 61 of 1983 long back and since then the first respondent has been in
possession of the same property. It is also his submission that the alleged
document filed at a belated stage cannot be received unless valid reasons are
shown for not producing the document along with the written statement, in
support of which he has relied on the case between Voruganti Narayana Rao V.
Bodla Rammurthy and others8 and also relied on the case between Pariti
Suryakanthamma and another Vs. V. Saripalli Srinivasa Rao and another9 wherein
it is held that when the purpose of filing of the document is not for any
collateral purpose, the same cannot be received and when it is unstamped, the
same cannot be received for main purpose under Section 35 of the Indian Stamp
10. The simple case of the petitioner is that the alleged partition deed dated
14-03-2004 was misplaced and therefore he could not file the same along with his
written statement. The case of the first respondent is that the document is
forged, unregistered and unstamped one, which is inadmissible in evidence,
therefore cannot be received. The facts are not in dispute. The petitioner
herein filed the suit in O.S. No.87 of 1976 on the file of Principal Senior
Civil Judge, Srikakulam and the said Suit was decreed and subsequently an Appeal
was filed in A.S. No.163 of 1978 on the file of District Judge, Srikakulam and
the said Appeal was allowed in part and a corresponding final decree was passed.
It is also not in dispute that E.P. No.61 of 1983 was filed and in pursuance of
the said E.P., the shares of the parties’ were allotted to them and possession
was delivered to them in terms of the final decree and the final decree
proceedings came to an end.
11. Now the specific case of the petitioner is that though a final decree was
passed and documents revealed that possession was delivered to the parties, but
in fact, it was only on paper and no such delivery of property had taken place.
It is also his case that subsequently petitioner and the first respondent have
settled the matter before elders and accordingly partitioned their properties on
12. A reading of recitals of the document makes it clear that the parties have
partitioned their properties on 14-03-2004 and that they have been enjoying the
lands allotted to them with absolute rights, list of the properties allotted to
each of the party have been mentioned in the said document. Thus, the document
is a clear document of partition creating absolute rights and title in the
properties allotted to the parties to the said document i.e. the petitioner and
the first respondent herein.
13. Therefore, the question that arises is whether a document, which creates a
right title in the properties allotted to the parties by virtue of a partition,
can be admitted when it is unstamped and unregistered?
Section 35 of the Indian Stamp Act, reads as follows :
“No instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties, authority to receive
evidence, or shall be acted upon, registered or authenticated by any such person
or by any public officer, unless such instrument is duly stamped”.
In view of the bar as referred in Section 35 of the Indian Stamp Act stated
supra, it is clear that the disputed document becomes inadmissible in evidence
for any purpose.
Section 2 (15) of the Indian Stamp Act defines ‘instrument of partition’ as
“‘Instrument of Partition’ means any instrument whereby co-owners of any
property divide or agree to divide such property in severalty, and includes also
a final order for effecting a partition passed by any revenue authority or any
civil Court and an award by an Arbitrator directing a partition (and a
memorandum regarding past partition)”.
Section 17 of the Registration Act reads as follows :
“Documents of which registration is compulsory –
(1) The following documents shall be registered, if the property to which they
relate is situate in a district in which, and if they have been executed on or
after the date on which, Act No. 1864 (XVI of 1864), or the Indian Registration
Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the
Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force,
(a) instruments of gift of immovable property;
(b) other non- testamentary instruments which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding
one year, or reserving a yearly rent;
(e) 1[non- testamentary instruments transferring or assigning any decree or
order of a Court or any award when such decree or order or award purports or
operates to create, declare, assign, limit or extinguish, whether in present or
in future, any right, title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in immovable property:] Provided
that the State Government may, by order published in the Official Gazette,
exempt from the operation of this sub- section any leases executed in any
district, or part of a district, the terms granted by which do not exceed five
years and the annual rents reserved by which do not exceed fifty rupees”.
Section 49 of the Registration Act reads as follows :
“Effect of non-registration of documents required to be registered : No document
required by Section 17 or by any provision of the Transfer of Property Act, 1882
(4 of 1882) to be registered shall –
affect any immovable property comprised therein, or
confer any power to adopt, or
be received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required
by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered
may be received as evidence of a contract in a suit for specific performance
under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of
any collateral transaction not required to be effected by registered
14. As per the decision of Khaja Habeebuddin (1st supra), relied upon by
learned counsel for the petitioner, the facts of the said case are that the
defendant in the said case had taken a plea that there was a prior partition way
back in the year 1957 and he filed a partition deed dated 15-07-1957 and an
award dated 16-08-1957. When the admissibility of the said document came up for
consideration, this Court held that the document in question did provide for
extent of shares of various individuals. This fact can be brought in evidence
only through a registered document. Therefore, the documents in question are
inadmissible to establish the factum of partition of the property by mets and
bounds. It was further observed that as far as the severance of status and
nature of possession of the various sharers are concerned; the document could be
received for the collateral purpose of severance of status and nothing more.
15. Reliance is also placed on the decision of Chinnappareddigari Pedda
Muthyalareddy (2nd supra), wherein the Full Bench of this Court has elaborately
dealt with the issue of admissibility of an unregistered document i.e. three
lists were prepared, when the parties prepared lists to denote the properties
which have fallen to the share of each in the partition which was effected about
a fortnight, before this the partition had already taken place and after about a
fortnight three lists were prepared and each party was given one list showing
the property which had been fallen to their respective shares.
This Court held as follows :
“Where a partition takes place, the terms of which are incorporated in an
unregistered document, that document is inadmissible in evidence and cannot be
looked for the terms of the partition. It is in fact the source of title to the
property held by each of the erstwhile coparceners. That document, though
unregistered, can however, be looked into for the purpose of establishing
severance in status, though that severance would ultimately affect the nature of
the possession held by the members of the separated family who from thence
onwards, hold it as co-tenants. It was also observed that for severance in
status, all that is required is a communication to the other members of the
joint family, of an unequivocal intention to separate and this communication of
intention could be done orally or by a notice in writing to the other
coparceners or by other means depending upon the facts and circumstances of the
case and if the intention is expressed by reducing the same to writing such a
document, though unregistered, is admissible and can be looked into, as long as
it is not the source of any title of the properties which each of the erstwhile
coparceners hold as a result of that partition”.
16. Reliance is placed on the decision of Reliance Singh (3rd supra) wherein
it was held that mere agreement to divide does not require registration but if
the writing itself effects a division, it must be registered.
17. Reliance is placed on the decision of Smt. Kaheeda Moin (4th supra wherein
the plaintiffs contended that the suit property was jointly purchased under
registered sale deed and all of them continued to be in joint possession and
enjoyment of the said property that subsequently there was a partition of the
properties effected on 17-02-1983 in the presence of elders and that in the said
partition the suit properties fell to their shares. They filed the suit for
declaration of title and for recovery of possession, objection was raised for
marking of the said document on the ground that it is an unregistered partition
deed. Holding that it is clearly mentioned therein that the partition of the
properties between the parties was effected and thus the properties were
allotted to their respective sharers and when the parties had taken possession
of their respective shares on the date of the document itself and in view of the
clear terms and conditions of the disputed document, the said document since
created and declared the rights of the respective parties, it is compulsorily
registrable under Section 17 of the Registration Act. It was further held that
the document can be admitted in evidence for the limited purpose of proving the
factum of partition and nature of possession of the parties.
18. Reliance is also placed in the decision of Amangenti Prameela (5th supra)
wherein the suit for partition and separate possession was filed when the first
defendant was being cross-examined, it was elicited through him that a partition
took place among various members of the family on 12-01-1980 and two sets of
documents were executed evidencing the said partition. It was also elicited
from him that one of the documents was kept with him and the other with one Mr.
Pratap Reddy. Then the petitioners got issued a notice to DW.1 calling upon to
produce original document, dated 12-01-1980 before the Court and there was no
representation from him. Then the petitioners secured Xerox copy of the said
document and filed the same. Then this Court held that Xerox copies can be
received as secondary evidence under Section 65 (a) of the Evidence Act. This
Court observed that the petitioners are not responsible for not impounding the
document and it can be received for collateral purpose as held in the decision
cited 4th supra.
19. Reliance is also placed on the decision of Pariti Suryakanthamma (6th
supra) wherein the petitioners in that case filed a suit for declaration of
title and for permanent injunction. The defendants wanted to mark the partition
list contending that the said document is only a partition list and not a
partition deed and therefore does not require any stamp duty or registration.
This Court taking into consideration the definition of ‘instrument of partition’
under Section 2 (15) of the Indian Stamp Act and Section 35 of the Stamp Act
held that the document cannot be received in evidence since the main purpose was
to prove the alleged title to the suit property.
20. Reliance is also placed on the decision of K.B. Saha and sons (7th supra)
wherein the alleged memo dated 30-03-1976 was in dispute as per the terms of the
said memo, the existing tenant had no right to allot the suit premises to
another employee after it was vacated by the tenant. M/s. K.B. Saha and Sons
Private Ltd., was the owner of the premises which was leased out to M/s.
Development Consultants Limited for the residential accommodation of a
particular officer, Mr. Keshab Das and after the said Officer vacated the suit
premises, the respondent wanted to allot the same to another employee, for which
the appellant objected; whether an un-registered document was admissible or not
was the question that came up for consideration therein.
From the principles laid down in the various decisions of this Court and
the High Courts, as referred to hereinabove, it is evident that :
1. A document required to be registered, if unregistered is not
admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of
collateral purpose as provided in the proviso to Section 49 of the Registration
3. A collateral transaction must be independent of, or divisible from,
the transaction to affect which the law required registration.
4. A collateral transaction must be a transaction not itself required
to be effected by a registered document, that is, a transaction creating, etc.,
any right, title or interest in immovable property of the value of one hundred
rupees and upwards.
5. If document is inadmissible in evidence for want of registration,
none of its terms can be admitted in evidence and that to use a document for the
purpose of proving an important clause would not be using it as a collateral
21. In the decision reported in Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs.
Appasaheb Tulja Rama Rao Nimbalkar and others10, it is observed as follows :
“A coparcenary is purely a creature of Hindu Law; it cannot be created, or re-
created after disruption, by the act of parties, save insofar that by adoption a
stranger may be introduced as a member thereof, or in the case of reunion”.
Thus the well settled legal position is that once there is a disruption of
joint family and partition has taken place and parties have allotted separate
shares, coparcenary cannot subsequently created. A coparcenary as observed by
the Apex Court, is purely a creature of Hindu law and it cannot be subsequently
created by any agreement or settlement between the parties.
22. As seen from the facts of this case, the facts and circumstances of this
case are peculiar. It is not in dispute that the petitioner himself had earlier
filed O.S. No. 87 of 1976 and the said suit was decreed and properties were
partitioned and delivery of possession was affected in E.P. No.61 of 1983 in
pursuance of the final decree passed in the said suit. The case of the
respondent is that the parties have been enjoying their respective allotted
shares since the date of delivery of possession to them as per the partition.
The specific case of the petitioner is that though the Execution Proceedings
reveal that the possession has been delivered but it was only on paper and no
actual delivery had taken place and that the parties subsequently approached the
elders and as per the advise of the elders the properties have again partitioned
on 14-03-2004. The petitioner herein though referred to the said partition deed
but did not specifically give the date of that partition date in his written
statement when he was examined as DW.1. He deposed that in the year 2004 the
elders of the village advised him and others and allotted shares but not in
accordance with the final decree. He further submitted that prior to 2004 the
elders never interfered and never allotted the shares to them. He further
admitted that he cannot say the day and month when the said partition had taken
place. He further admitted no document was reduced into writing at the time of
partition. He further admitted the details of the alleged partition deed were
not mentioned in his pleadings. He further admitted that he did not state in
his chief-affidavit that 25 cents of Item No.3 was allotted to the plaintiff by
23. It may not be appropriate to comment on the merits of the case basing upon
the past evidence, but one thing is sure if the parties are allowed to deny the
Court proceedings particularly allotment of respective shares as per the final
decree proceedings in execution proceedings or execution of any decree, there
will be no end to the litigation; that too after a period of more than 22 years
as occurred in this case. The parties approached the Court and after a long
litigation they obtained decree and the fruits of the decree would be available
to them only after it is successfully executed and possession has been
delivered. Normally, the parties do not enter into any settlement contra to a
decree passed in their favour. Parties may settle the disputes during the
pendency of the proceedings but it would be most unnatural and most improbable
to say that after the shares have been allotted in Execution Proceedings and
possession has been handed over, the parties again sat together and
repartitioned the properties that too under an unregistered, unstamped partition
deed creating right in the properties allotted to them. Rights and title cannot
be transferred to any other party except by way of a registered document. No
right in any immovable property which is of worth more than 100 rupees can be
neither created nor extinguished except through a registered document and the
document must be scribed on the required stamp paper otherwise, the very purpose
of the relevant provisions of the Registration Act, Stamp Duty will be defeated.
24. As discussed above, the document sought to be filed is nothing but a
partition deed creating right and title in the lands said to have been allotted
to the parties. It is settled law that registration of document which is to be
required under Section 17 (1) (b) of the Registration Act makes the document
inadmissible in evidence. Under Section 49 (c) of the Registration Act, no
document required by Section 17 to be registered shall be received as evidence
of any transaction affecting the said property unless it has been registered.
Of course the proviso says that an unregistered document affecting immovable
property and required to be registered, may be received as evidence of a
contract in a suit for specific performance or as evidence of part performance
of a contract for the purpose of section 53-A of the Transfer of Property Act or
as evidence of any collateral transaction not required to be affected by
registration of instrument.
25. The A.P. Amendment Act 17 of 1986 came into force with effect from 16-08-
1986 and definition of ‘instrument of partition’ under Section 2 (15) of the
Indian Stamp Act has been amended. As referred in the above paragraphs even a
memo recording past partition is also brought within the definition of
‘instrument of partition’ by virtue of the said amendment. Thus, the argument
that a document is merely a record of family arrangement, settlement or
acknowledgment of prior partition and admissible for collateral purpose is no
more available after the above amended provisions of Indian Stamp Act came into
force. Section 35 of the Indian Stamp Act is very clear and creates a clear bar
and therefore unstamped document is inadmissible in evidence for any purpose.
Admittedly the alleged document i.e. partition deed is chargeable with duty. In
view of the settled legal position i.e. the bar engrafted under Section 35 of
the Indian Stamp Act is an absolute bar and therefore the document cannot be
used for any purpose unlike the bar contained in Section 49 of the Registration
26. Now it is argued that the petitioner was ready and even prepared to pay
the deficit stamp duty to take the said document into consideration; whenever
any unstamped document is sought to be admitted on the same day, when it is
filed before the Court, the parties file such document and take steps to pay the
stamp duty or the deficit stamp duty but not at a subsequent stage when the
issue of admission of that document comes or when it is objected by the other
side. Collateral purpose means not for the purpose of proving the partition or
allotment of shares or creating of any right. For example, in a case the
Parties have partitioned their properties in 07-01-1953 and after some time they
prepared the lists of properties allotted to the parties or prepared a memo of
family arrangement and a suit for partition is filed in the year 1960 and the
party who leads that partition had taken place on 07-01-1953 proves his
possession by filing documentary evidence that he has been in exclusive
possession of the properties allotted to him and that there was a severance of
joint family and his status is no more as a member of Joint Hindu family and his
status has changed. Then in such circumstances only for the purpose of proving
that his possession commenced from 1953 on wards or that his status is not as a
member of joint Hindu Family, for that purposes a family arrangement which was
reduced into writing as the lists prepared alone amounts after the actual date
of partition could be received for collateral purpose. If the said document
cannot be proved to show that the partition had taken place on 07-01-1953 or
that the properties were allotted to those parties in pursuance of the said
partition on 07-01-1953, thus it is clear that a document for the purpose of
proving the terms of such document cannot be admitted in evidence. Thus the
document cannot be received to say that it created or declared assigned or
limited or extinguished a right to immovable properties. The term collateral
purpose would not permit the parties to establish any of these facts from the
deed. In the name of collateral purpose, no document can be received nor any
right said to have been created, declared or assigned or limited or extinguished
can be inferred from such document.
27. It is our experience that though document is received or marked for
collateral purpose but when it is before the Court and at the time of
appreciating the evidence, many Courts are not taking into consideration for
what purpose the said document could be considered.
In view of the above discussions, I hold that there no merits in the
Revision and accordingly, the Civil Revision Petition is dismissed. No order as
However, it is made clear that the lower Court without being influenced by
any of the observations made supra, may appreciate the evidence in proper
perspective and dispose of the suit. Before parting with this judgement, it is
necessary to caution the parties not to sign on blank papers or on stamped
papers under any circumstances, may be while obtaining private loans or loans
from chit fund companies, money lenders or even from Banks because our
experience shows that there are several instances where innocent persons who
signed on white papers or on stamped papers, on blank receipts or blank pronotes
and blank cheques etc., while taking loans have been subsequently cheated. It
is also desirable to mention that the learned Advocates who are dealing with the
noble profession should instruct their clerks and parties to see that signatures
or thumb impressions of parties are not obtained on any blank papers or stamped
papers because the risk of the same being misused by any unscrupulous persons or
by any person in future cannot be ruled out. Since the files cannot be with the
same Advocate always and they will be moving into the hands of several others
persons. Therefore, whenever unstamped papers and unregistered documents are
presented before the Court, the Court must examine the same cautiously and
should not admit them in a routine manner in the name of using them for
B. CHANDRA KUMAR, J