BOMMAGUNI RANGAIAH Vs. BOMMAGUNI RANGASWAMY

JUDGEMENT

(1.) The respondent herein filed O.S. No.1 of 1963 on the file of the Subordinate Judge's Court, Nalgonda for partition of certain properties. The petitioner herein is the second defendant in that suit. He and the fourth defendant relied upon a document executed by one Lakshmakka. In that document which was styled as a will it was recited that certain lands mentioned therein were given to her eldest grandson, the second defendant and to Butchaiah the fourth defendant by making a division thereof between them, half and half. The document further stated that in future after her death, the second defendant would be entitled to succeed to the extent of half of the said lands. The Subordinate Judge had to consider at one stage of the suit whether this document was a gift or a will. He held that in so far as the properties given to Butchaiah, the fourth defendant are concerned it operated as a gift or a settlement and in so far as the properties given to the second defendant are concerned it operated as a will. This order was carried in revision to this Court in C.R.P. No. 1196 of 1966. By a Judgment dated 30th June, 1967, this Court agreed with the above construction placed by the Court below and dismissed the revision petition. It was further observed that the question whether the document is admissible or not on the ground that it was not stamped has to be decided by the trial Court.

(2.) Subsequently the petitioner (Second defendant) filed a petition I.A. No. 26 of 1968 under Order 13 rule 4 read with section 151 Civil Procedure Code to admit the document in evidence to the extent of the bequest in his favour. His contention was that according to the judgment of the lower Court as affirmed by the High Court the document operated only as a will in so far as the properties given to him under this document were concerned. Therefore, he could rely upon that document to the extent that it related to the properties bequeathed in his favour even though it was not stamped. This application was opposed by the respondent herein (Plaintiff) on the ground that the document must be taken as a whole and as it was not stamped it could not be relied upon for any purpose, even as a will bequeathing certain properties in favour of the petitioner herein. The Court below accepted the contention of the respondent and held that the instrument cannot be separated into two parts and without payment of penalty the document is not admissible in evidence. It therefore, directed the petitioner herein to pay penalty immediately if he desired to rely upon the document.

(3.) The petitioner herein has filed this revision petition questioning the correctness of the said order. As stated earlier this Court has in C.R.P. No. 1196 of 1966 taken the view that the document operates as a will in so far as the bequest of a half share to the petitioner is concerned and operates as a settlement in favour of the fourth defendant in so far as the other half share is concerned, I have therefore, to proceed on the footing and consider whether in such circumstances the party who is claiming the properties which have been bequeathed to him under the said document can rely upon the document as a will and contend that the document is admissible even though it is not stamped for the purpose of proving his claim to the properties bequeathed to him or whether he should pay the stamp and penalty thereon before he is permitted to rely upon that document.