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TMI Blog2015 (10) TMI 2768X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 5. It is the specific case of the1st respondent/plaintiff that one Jaggayya, who is the foster father of the plaintiff, had acquired certain properties during his life time and executed a Registered Will dt. 22/05/1964 in a sound and disposing state of mind bequeathing his immovable properties in favour of the plaintiff/respondent and 1st defendant/appellant No.1 by giving life estate in favour of his wife Mahalakshmamma, and the said Mahalakshmamma died on 20/05/2001, as such plaintiff/respondent No.1 and the defendant Nos.1 & 2/appellants became entitled to the plaint Schedule properties in equal shares. On his demand, when the defendants failed to partition the properties by giving him his legitimate right, he has approached the Court by filling the above suit. 6. The appellants herein (Defendant Nos.1 & 2) resisting the plea of the plaintiff/respondent No.1 filed the written statement that appellant No. 1 being the sister's daughter of Mahalakshamma and the plaintiff/respondent No. 1 who is the sister's son of late Jaggayya were treated as foster son and daughter as Jaggayya had no issues. In the year 1969 properties were partitioned between the parties. The plaintiff/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible in evidence. The plea of the defendants is that the recitals of the said document discloses past transaction with reference to division of property and further it discloses the intention of the parties to enter into a separate agreement for sharing the properties and that the terms therein have to be implemented in future. 9. Both the Trial Court and the High Court upheld the objection raised by the plaintiff/respondent No.1 and came to a conclusion that two recitals i.e. Exhibit B21 and Exhibit B22 are not evidencing the past transaction, but they prima facie disclose the partition of the property and relinquishment of rights by one of the parties. As such, both documents require stamp duty under the Indian Stamp Act, 1899 and registration under the Registration Act, 1908. As Exhibits B21 and B22 are unregistered and unstamped documents, they are not admissible in evidence. The Trial Court gave a specific finding that even both the exhibits are not admissible for collateral purpose also. Aggrieved by that, the present appeal is filed. 10. We have heard the learned senior counsel for the appellants/defendant Nos.1& 2 and the learned counsel for the respondents/plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation or extinction of any such right, title or interest; and (d) leases of immovable property; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: (f) any decree or order or award or a copy thereof passed by a Civil Court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and (g) agreement of sale of immovable property of the value of one hundred rupee and upwards", Provided that the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft over amount will be divided between plaintiff/respondent No.1 and defendant No.1/appellant No.1 and further it was agreed upon that Mahalakahamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of the plaintiff/respondent No. 1 and the plaintiff/respondent No.1 and the defendant No.1/appellant No.1 shall not raise any dispute over this. Coming to Exhibit B21, date 05/06/1975 which is an agreement between Mahalakashmma, plaintiff/respondent No.1 and defendant No.1/appellant No.1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the Memorandum, Ext. B 22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares, in proof thereof, the Deed of Memorandum is executed. Taking us through the recitals of these two documents, the learned senior counsel tried to impress upon this Court particularly through the last few lines from Exhibit B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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