VOLETI SRIRAMA REDDY DIED Vs. VOLETI APPALA RAJU

JUDGEMENT

(1.) This court by order dt 13-8-1992 in C.R.P.No. 289 of 1991 directed the Subordinate Judge, Pithapuram, to consider the admissibility of Ex. B-2 filed in O.S.No. 9 of 1989 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 be in grelied 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 usufructuary 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 toRs. 16,445/-on or before 8-2-1993. This orderis in question in the Civil Revision Petition.

(2.) The lst Petitioner is the 3rd defendant in the suit The suitfiled by the 1st respondent is for partition of plaint schedule property which is 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 two other brothers. It is specifically averred in the plaint that the plaintiff incurred adebtof Rs. 15,000/- from the 3rd defendant by way of owelty and for discharging the said debt, he executed Ex. B-2in favour of 2nd defendant. The 1st petitioner in his written statement has also averred that in the paration the plaintiff paid Rs.9500/-only towards his share of Rs. 24,500/- and that he owned Rs.l5,000/-to him and when hepressed 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 with in 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 usufructuary mortgage and therefore, inadmissible in evidence for want of registration.