KARROTHU APPALANAIDU Vs. KARROTHU NARAYANA

JUDGEMENT

(1.) The petitioner is defendant in OS No.86 of 1992 on the file of the Court of the Principal Junior Civil Judge, Vizianagaram. The respondent who is none other than the brother of the petitioner filed the above suit for partition of certain properties. The petitioner demurred by taking a stand that by reason of past partition as evidenced by "partition list" dated 9.2.1972 the suit be dismissed. At the time of the trial he sought to mark the said document dated 9.2.1972. On objection by the learned Counsel for the respondent-plaintiff the trial Court gave the impugned ruling on 7.2.2001 holding that the document in question is a partition deed and the same cannot be marked in the absence of stamp duty and registration.

(2.) The learned Counsel for the petitioner-defendant Sri E. V. Bhagiratha Rao submits that a document should be read as a whole to decide whether it is in the nature of partition deed or partition list. According to the learned Counsel the document specifically mentions two times that it is a 'jabitha' (list). Therefore, it should be taken as a partition list and not partition deed. These contentions are refuted by the learned Counsel for the respondent- plaintiff Mrs. Maamu Vani.

(3.) Section 2(15) of the Indian Stamp Act, 1899, (hereinafter referred to as 'the Act' for brevity) defines instrument of partition to mean any instrument whereby co-owners of any property divide or agree to divide such property in severalty. A final order passed by the civil Court ordering partition or an award of arbitrator directing partition are also included in the definition of instrument of partition. A document by which the property, owned and held by co- owners, is divided among them by their own volition or if they arrive at an agreement to divide the property in severalty, is an instrument of partition in which event, by reason of item 40 of Schedule I-A to the Act, it requires stamp duty. Such instrument of partition is a document which requires registration under Section 17(1)(b) read with Section 17(2)(v) of the Registration Act, 1908.