Whether mother can transfer her exclusive property to sons by partition deed?

 The suit property is the property which was given to Renubai. It is also not in dispute that, it was given in lieu of maintenance to her for lifetime prior to 1956. Under those circumstances, by virtue of Section 14(1) of Hindu Succession Act, 1956, she had become exclusive owner of the said property, i.e. in other words, it was her absolute property. It cannot be disputed that, after it had become her absolute property, she had every right to dispose of the said land as per her wish. The defendants No. 1 and 2 have come with a case that, Renubai had executed a partition deed on 17-05-1962 i.e. Exhibit 61 and by virtue of that document they have become owner of 1/2 portion each. Here the said document Exhibit 61 is a unregistered document. It is also executed on deficit stamp. No doubt it appears that, the defendants have deposited the deficit stamp with penalty as contemplated under the then, Section 33 of Bombay Stamp Act, 1958. Now the question is whether after payment of deficit stamp duty (impounding of document) whether that document can be said to be admissible and whether defendants No. 1 and 2 can get any kind of benefit or title from that document. The first and the foremost fact that is required to be borne in mind that when Renubai became absolute owner of the suit property by virtue of Section 14 of the Hindu Succession Act, defendants No. 1 and 2 cannot be said to be her co-sharers. Therefore, when she was transferring the title to them, it could not have been as 'Vatni Patra' or partition deed. Defendants No. 1 and 2 had no existing right in the suit property along with Renubai so that she can partition the said land. By that document she was creating right or title in favour of defendants No. 1 and 2, and therefore, that document was a compulsorily registrable document as contemplated under Section 17 of the Indian Registration Act. Admittedly the value of the suit property even at the time when Exhibit 61 was executed was more than Rs. 100/-, and therefore irrespective of the nomenclature, it was a compulsorily registrable document. Though one of the defect in respect of that document was tried to be cured by defendants No. 1 and 2 by paying the penalty as well as requisite stamp duty, yet the said document cannot be said to be admissible for 'any purpose'. Transfer of title can be made by exclusive owner either by sale-deed or gift-deed, mortgage-deed etc.. For partition, the other party should also have title or share in that property. When as aforesaid Renubai was creating right or share of defendants No. 1 and 2 in the said property, then such document becomes 'inadmissible', when it is unregistered under Section 17 of the Indian Registration Act. Section 35 of Bombay Stamp Act prohibits use of such document even for collateral purpose. It cannot be used for "collateral purposes" also under Section 49 of the Registration Act. In Avinash Kumar Chauhan Versus Vijay Krishna Mishra, reported in MANU/SC/8502/2008 : AIR 2009 SC 1489, wherein it has been observed that,

"The Parliament has, in Section 35 of the Stamp Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions."

"The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act."

"The plea that the document was admissible for collateral purpose would not be tenable. Section 35 of the Act rules out applicability of provisions of Section 49 of Registration Act. As it is categorically provided therein that a document of this nature viz. unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purpose."

No doubt in the above cited case, it was an unregistered deed of sell but here in this case as aforesaid though it was styled as 'Vatni Patra', in fact it could not have been partition deed as the defendants No. 1 and 2 were not the co-sharers with Renubai. Defendants No. 1 and 2 cannot take dual stands by contending at one place that Renubai had become exclusive owner by virtue of Section 14 of the Hindu Succession Act and then at the another breath they can say that she was entitled to execute partition deed.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 173 of 2003

Decided On: 08.04.2019

Manikrao Vs. Gangabai and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 210

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Whether court can decree the suit if written statement is not filed?

 Applying the said position of law to the facts of the present case would show that the appellant has relied heavily on a document termed as Partition Deed. Even in the absence of written statement on behalf of the respondents specifically denying the claims made by the appellant, the burden was on the appellant to prove the aforesaid document in terms of the requirements of law, in order to successfully claim the relief of declaration and other ancillary reliefs sought in the suit filed by him. The Courts below have found that the appellant failed to produce the original Partition Deed and that only a photocopy of the same was placed on record. It was stated in the evidence of the appellant that the original of the said document was with respondent No. 1, but, no efforts were taken by the appellant in terms of law to ensure that the original document was brought before the Court.

13. In the absence of the most crucial piece of evidence in support of the claims made by the appellant being brought on record, merely producing alleged witnesses to the said document before the Court was of no avail. In fact, the trial Court specifically records this aspect while rejecting the claims made by the appellant.

14. In the absence of written statement on behalf of defendants and deemed admissions by them, as claimed by the appellant, the law laid down by the Hon'ble Supreme Court places greater responsibility on the trial Court to ensure that the appellant has been able to prove his case to the hilt. In the present case, on the basis of material on record it is evident that the appellant, being the plaintiff, had miserably failed to produce cogent evidence on record to prove his case, even in the absence of written statement filed on behalf of the respondents. The view taken by the trial Court in this context cannot be found faulted with and the appellate Court has also confirmed the same by correctly applying the position of law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 476 of 2015

Decided On: 10.04.2018

 Martand Vs.  Dilip Namdeorao Gotmare and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5) MHLJ 674

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Whether court can consider documents which were not part of pleading and in respect of which issues are not framed?

 We have perused the written submissions filed by the Appellant in-person. The Appellant has relied upon the Partition Deed dated 6th December, 1937 and the Deed of Settlement dated 6th August 1942. According to the Appellant, the Deed of Partition dated 6th December, 1937 was entered into between her grandfather late Shri Appavu Gounder and his two sons late Shri Karunappanan Gounder (Defendant No. 1) and late Shri Athappa Gounder. The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his land. According to the said Settlement Deed dated 6.8.1942, the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents, we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings.1

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9558-9559 of 2018 

Decided On: 17.09.2018

 L. Ponnayal Vs.  Karuppannan (Dead)

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: (2019) 11 SCC 800

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Whether partition deed which is not stamped is admissible in evidence for collateral purpose?

 The trial Court has directed to exhibit the document styled as "partition deed". The Trial Court observed that the parties can use the said document for collateral purpose. If the document requiring compulsory registration is not registered, then the document can be used for collateral purpose in view of section 49 of the Registration Act. There would be no bar to refer said document for collateral purpose. However, even if the document is used for collateral purpose, the document is required to be stamped properly. Unless and until the document is stamped the document cannot be admitted in evidence. Reference can be made to section 34 of the Bombay Stamp Act. Reading the document, it appears that the document effects partition amongst the parties in front of panchas. In view of that even if said documents is used for collateral purpose, the document will be required to be stamped. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

L.P.A. No. 44 of 2013 in W.P. No. 2705 of 2012 and Civil Appln. No. 3353 of 2013

Decided On: 08.12.2017

Ranchhod Dharamdas Mali Vs. Laxman Dharamdas Mali and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Citation: 2018(3) MHLJ 775

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Whether unregistered partition deed is admissible in Evidence?

 In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this
Court was considering the admissibility of an unregistered partition deed. It was
held thus:
“……Section 17(i)(b) lays down that a document for
which registration is compulsory should, by its own
force, operate or purport to operate to create or declare
some right in immovable property……Two propositions
must therefore flow:12
(1) A partition may be affected orally; but if it is
subsequently reduced into a form of a document and that
document purports by itself to effect a division and
embodies all the terms of bargain, it will be necessary
to register it. If it be not registered, S.49 of the Act
will prevent its being admitted in evidence. Secondary
evidence of the factum of partition will not be admissible
by reason of S.91 of the Evidence Act, 1872.”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD AND ORS.

S.ABDUL NAZEER, J.
Dated:July 02, 2018.
Citation: (2018) 7 SCC 646

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Whether registered partition deed is required for effecting mutation entries?

 Learned Counsel Shri Deshpande further states that the joint family property received by the coparcener in the partition is not a transfer and for this purpose, the learned Counsel is relying on the judgment of the Apex Court in The Commissioner of Income Tax, Gujarat v. Keshavlal Lallubhai Patel,. Similarly, it is further contended that since it is not the transfer, it is not necessary to register the deed of transfer. In support of this contention, reliance is placed by the learned Counsel on the judgment of the Apex Court in Digambar Adhar Patil v. Devram Girdhar Patil (died) and Anr.,

4. In view of above referred decisions of the Apex Court, it is clear that the property received by the coparcener in the partition of joint Hindu family property is not a transfer and, therefore, registration of transfer deed is not necessary. We direct the respondents to dispose of the application of the petitioner for mutation according to law, without insisting for registration of the document. With these observations, the petition is disposed of."

8. Based on the conclusions of this Court in the case of Arvind Deshpande (supra), the competent authority issued a circular dated 10/05/2006 clearly indicating that when undivided Hindu family members desire to partition the land and seek mutation entries on the basis of such partition deed, the Revenue Authorities shall not insist on the partition deed being registered as a pre-condition for considering it as a foundation for effecting mutation entries. By the said circular, clauses 1 and 3 of the earlier circular dated 26/05/1995 were set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 703 of 2014

Decided On: 15.06.2017

Manikchand Hiralal Nahar and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2018(1) MHLJ 379

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Whether coparceners will be denied rights in coparcenary property if their names are not mentioned in partition deed?

    Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:
       MR. JUSTICE A.HARIPRASAD

                29TH DAY OF SEPTEMBER 2016

                              RSA.No. 996 of 2009 
KALI AMMAL
V
VALLIYAMMAL,

                   Citation: AIR 2017 (NOC) 211 Ker

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Whether rights of coparceners will be affected if ancestral property is not mentioned in partition deed as coparcenary property?

  Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants. In this case,

another contention is that Ext.B1 release deed, taken from the defendants

3 and 5 by Veluchami and his two wives, also probabilises the case of the

appellants that deceased Veluchami himself had acknowledged the nature

of property as one belonged to a coparcenary.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                     PRESENT:

                             MR. JUSTICE A.HARIPRASAD

                29TH DAY OF SEPTEMBER 2016

                                               RSA.No. 996 of 2009 
 KALI AMMAL ,
Vs
       VALLIYAMMAL, 

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Whether court can supply a word while interpreting a deed which is not used by author of document?

 In the case of “Mula Sahakari Sakhar Karkhana
Ltd.”(supra), the Hon'ble Apex Court has held that a document,
as is well known, must primarily be construed on the basis of the
terms and conditions contained therein and that it is also trite
that while construing a document the Court shall not supply any
words which the author thereof did not use. It has been further
held that surrounding circumstances are relevant for construction
of a document only if any ambiguity exists therein and not other
wise. Therefore, it is evident from the above provisions of law that
nothing can be added to the Deed of Partition by way of oral
evidence. The said document at Exhibit PW1/A-colly speaks for
itself. No doubt, there were no survey numbers as mentioned in

paragraph 2A, at the time of said Deed of Partition. But the said
Deed of Partition, in itself, does not show that the property was
divided into various plots, of various dimensions, lying at
particular places, and that some such plots were allotted to the
plaintiffs and some to the defendants. In the circumstances
above, the first substantial question of law gets answered in the
negative, since truely, the said Escritura de Divisao (Deed of
Partition) at Exhibit PW1/A-colly is merely a declaratory
document.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 57 of 2004
 Mr. Lateran Max Francisco Vaz,

Versus
 Mrs. Volvetta Gomes,




CORAM :- U. V. BAKRE, J.

Pronounced on : 13 th June, 2014 .
Citation; 2015(3) ALLMR594 Goa high court

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Whether copy of document can be impounded by court?

Family - Wills and Probates - Grant of succession certificate - Validity of partition deed - Determination there of - Application under Section 276 of the Indian Succession Act, 1925 was made requesting grant of probate - Trial Court did not determine questions of ownership of or title - Hence the appeal - Whether the Trial Court was required to decide on the regard to the validity of the partition deed in a probate application - Held, Court dealing with issue of grant of succession certificate, is not required to decide ownership or title to the property. Validity of partition deed is not required to be decided by Trial Court. Partition deed fell under category of documents which were to be compulsorily registered under Section 17(1)(b) Registration Act, 1908. Non-registration would not be received as evidence of any transaction affecting such property or conferring such power. Only such documents which were sufficiently stamped and registered was admissible in evidence. SC in Hariom Agrawal v. Prakash Chand Malviya, observed that impounding for payment of stamp duty and penalty are related only to instrument and not copy of the document as under Section 33 of Bombay Stamp Act, 1958. Photocopy of document cannot be termed as instrument under Section 2(14) of Indian Stamp Act, 1899 or Section 2(l) of Bombay Stamp Act, 1958. Trial Court rightly turned down request of Petitioner. Determination of question relating to entitlement of deceased to property was of a secondary character. Trial Court was justified in rejecting application tendered by Petitioner. No interference required. Civil Revision Application dismissed.

Bombay High Court

Gayabai Hemlal Jadhav vs 2 Sow Sayabai Latkan Jadhav on 5 May, 2011

Bench: R. M. Borde

Citation: 2011(4)ALLMR249, 2011(6)BomCR412, 2011(113)BOMLR1972, 2011(4)MhLj798

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Whether insufficiently stamped partition deed is admissible in evidence?

Civil - Admissibility of documents - Learned Civil Judge permitted Defendants to mark document as an exhibit on premise that said document was only a partition list and not a partition deed and, therefore it did not required any stamp duty or registration - Hence, this Petition - Held, document was both insufficiently stamped and unregistered - Defendants sought to produce and rely on disputed document not for any collateral purpose but for main purpose of proving their alleged title to suit property and thereby non-suit Plaintiffs - Therefore, document was inadmissible in evidence both in view of bar contained under Section 35 of Indian Stamp Act as being insufficiently stamped, and also in view of Section 49 of Registration Act -Thus, admission of document into evidence was held unsustainable and same was accordingly set aside - Petition allowed.

ALLAHABAD HIGH COURT
THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY          
Civil Revision Petition No.5375 of 2009

DATED:08-02-2010 

Pariti Suryakanthamma and another  V Saripalli Srinivasa Rao and another
Citation: 2010(2)ALD847, 2010(2)ALT648

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When partition deed can be declared as void ab initio?

Land & Property - Suit for partition - Injunction - Validity - Plaintiffs/appellants filed suit for partition, separate possession, to declare documents created by respondents/defendants i.e.., Partition Deed and Sale Deeds created by defendant nos. 1 to 4 in pursuance of Partition Deed in favour of third parties were void ab initio - Trial Court dismissed suit - Hence, instant appeal - Whether plaintiffs were entitled to a share in suit properties - Held, having shown plaintiff as a party in Partition Deed, defendant nos. 1 to 4 should have obtained signature of plaintiff in Partition Deed - Therefore, it was clear and evident that plaintiff was kept in dark and document was executed behind his back by defendant nos. 1 to 4 - When it was not case of defendant Nos. 1 to 4 that plaintiff no. 1 was mentally unsound, Trial Court erroneously found that plaintiff no. 1 was mentally unsound and said finding was without any basis or material - Since it had been held that Partition Deed was invalid, null and void document and that alienations made pursuant to Partition Deed by defendant Nos. 1 to 4 in favour of defendant Nos. 5 to 8 were invalid and void ab initio - Therefore, plaintiff no. 1 was entitled to 18/40th share, plaintiff no. 2 was entitled to 10/40th share and defendant Nos. 1 to 4 were entitled to 3/40th share - Further, it was found that alienations made to defendant Nos. 5 to 8 were invalid, void ab initio and also that plaintiffs had proved their possession by oral and documentary evidences, it was clear that they were in possession of suit property - On contrary, defendant Nos. 5 to 8 had not produced any documents to prove their possession and plaintiffs were entitled for a decree for permanent injunction as against defendant Nos. 5 to 8 - Thus, impugned judgment of Trial Court was set aside.1

Deeds and Documents – Partition Deed – Validity of – Partition Deed executed by female heirs of joint 

family property – However, daughter of grandfather, who was entitled to 1/4th

Deed – Grandson, who was Karta of family though made a party of Deed, signatures not obtained on Deed from him 

on account of alleged unsoundness of mind – allegation of son being of unsound mind, not proved – Held, Karta of 

family kept in dark and Partition Deed executed behind his back – Partition Deed not including necessary parties, 

held, invalid, null and void document – All Sale Deeds entered into between parties pursuant to said Deed also void 

ab initio.

2013(2)CTC160

IN THE HIGH COURT OF MADRAS

A.S. No. 504 of 2010 & M.P. No. 1 of 2010

Decided On: 28.01.2013

Appellants: Pugazhenthi and Another
Vs.
Respondent: Sundari Ammal and Others

Hon'ble Judges/Coram:M. Duraiswamy, J.

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