SRIRAMA REDDY V Vs. V APPALA RAJU

JUDGEMENT

(1.) This Court by order dt. 13-8-1992 in C.R.P.No. 289/91 directed the Subordinate Judge, Pithapuram, to consider the admissibility of Ex. B-2 filed in O.S. No. 9/89 on his file and to collect the deficit stamp duty with penalty, if it is insufficiently stamped and also to consider whether the document requires registration and if the document is being relied upon only for collateral purpose, the same may be marked even though it was not registered. In pursuance of the said order, the learned Subordinate Judge considered the document and found that Ex. B-2 was not a conditional sale agreement but was usufructury mortgage and it requires registration. It was also found that it was not relied upon for collateral purpose and that the document was unstamped. The petitioner was directed to pay the stamp duty of Rs. 1,495/- and penalty of Rs. 14,950/-, aggregating to Rs. 16,445/- on or before 8.2.93. This order is in question in the Civii Revision Petition.

(2.) The 1st petitioner is the 3rd defendant in the suit. The suit filed by the 1st respondent is for partition of plaint schedule property whichis in possession of the plaintiff and for allotment of a share to him. 1st defendant is his son. 2nd defendant is his unmarried daughter and the 3rd defendant (1st petitioner) is his brother. Defendants pleaded oral partition with their twoother brothers. It is specifically averred in the plaint that the plaintiff incurred a debt of Rs.15,000/- from the 3rd defendant by way of owelty and for discharging the said debt, he executed Ex. B-2 in favour of 2nd defendant. The 1st petitioner in his written statement has also averred that in the partition the plaintiff paid Rs.9,500/- only towards his share of Rs.24,500/- and that he owed Rs.15,000/- to him and when he pressed for payment he put him in possession of the land executing Ex. B-2, "a conditional sale agreement", since he offered to purchase the same.

(3.) It is contended by the counsel for the petitioner, relying upon the recitals of the document, that Ex. B-2 is a conditional sale agreement and therefore, does not require registration. It is also contended that the relationship between the parties and the surrounding circumstances will go to show that the plaintiff agreed to sell the land in his favour, however with a condition to repurchase the same; if he could not repay the advance taken within a specified time, failing which the plaintiff shall have to execute the sale deed. On the other hand the learned counsel for respondents 2 and 3 argued that it was a usufructury mortgage and therefore, inadmissible in evidence for want of registration.