YASHODA DEVI & ANR. Vs. SUMAN

JUDGEMENT

(1.) THIS is a Civil Revision under Section 23 -E of the Madhya Pradesh Accommodation Control Act, 1961 (Act for short). Rent Controlling Authority (R.C.A. for short) has allowed the application of respondent under Section 23 -A of the Act on the ground of bonafide requirement for nonresidential purpose of opening a shop for his son Vinay Akolkar (AW -2). Respondent is a Hindu widow. She claimed to have acquired the disputed shop in oral partition of the family property in the year 1981. A memorandum of such partition was reduced into writing on 28 -01 -1995. She bonafide required the disputed shop for starting a new business of her major son Vinay Akolkar (AW -2) for which purpose, she has no other reasonably suitable shop in the town. Quit notice dated 31 -03 -1997 demanding vacant possession since 30 -06 -1997 was sent by registered post which had remained un -replied. The petitioners, who are mother and son after obtaining leave to contest claimed that the joint family of respondent owned about 34 shops and open land in the town including vacant shops left by Chhagan Lal Jaiswal and R.L. Gupta tenants. There has been no family partition. Story of partition is invented to entitle the respondent to seek the summary procedure for eviction under Chapter -III -A of the Act. Requirement of son of the respondent is denied. She has other shops also in her possession to satisfy her need.

(2.) THE R.C.A. held that respondent had got the disputed shop in her share in the family partition. Relationship of landlord and tenant between the parties had been well proved. Respondent had been able to prove her bonafide requirement. Both Suman (AW -1) and her son Vinay Akolkar (AW -2) had claimed that the respondent was allotted two shops in their share in family partition. Photocopy of memorandum of partition executed on 28.01.1995 orally effected in year 1981 was there on record. However, the same remained un -exhibited. The Senior Advocate for petitioners has argued that even if registration of the memorandum of partition was not necessary, such memorandum being executed after enactment of Madhya Pradesh Act, 8 of 1975 amending the definition of instrument of partition as defined under Section 2(xv) of the Indian Stamp Act, 1899 and including a memorandum of partition also within such definition it would be properly stamped. Provision reads as follows:

(3.) SECTION 2 -15 (iii) When any partition is effected without executing any such instrument, any instrument or instruments, signed by the co -owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co -owners; As per Senior Advocate for petitioners under Article 45 of Schedule I -A of the Indian Stamp Act, 1899 such instruments should bear the stamp duty as a bond, (as provided under article 15 of the same Chapter). According to Senior Advocate for petitioners such instrument of partition was inadmissible in evidence to prove partition. It was further argued that as such an instrument was suppressed by the respondent no secondary evidence could be given by the respondent. However, the R.C.A. could have impounded the instrument of partition not duly stamped only when it was sought to be proved or produced in evidence by the respondent. In the present case, the respondent had neither produced the original nor had sought to prove the same, to invite the operation of Section 33 or 35 of the Indian Stamp Act. Thus, the argument does not had any where. The fact remains that the respondent had sought to prove the family partition by oral evidence alone.