Decided on August 11,1969

BOARD OF REVENUE, M.P. Respondents


- (1.) THIS is a reference under Section 57 (l) (a) of the Stamp Act. The questions equivalent Citation: referred have arisen on the following facts. Balkrishna instituted a suit against nimasingh in the Court of the Civil Judge, Class I, Khargone, for the recovery of rs. 1057. 50 on foot of four promissory notes executed by him on May 26, 1957, in favour of Balkrishna Biharilal, a joint family firm. By amendment of the plaint, the plaintiff averred that in 1959 there was a partition between him and his sons under which the amount to be recovered on those promissory notes was allotted to him in his share. An issue was framed on July 16, 1962, whether the plaintiff alone had the right to sue. Balkrishna (plaintiff) was examined on July 2, 1963. He produced his Rokad Bahi (cash book) for Samvat 2016 in which there is an entry dated November 5, 1959, purporting to effect a partition and showing the shares allotted to the coparceners. Balkrishna proved this document and it was marked ex. P-5.
(2.) WHEN Hiralal (P. W. 2) was in the witness-box on the same day, and the document (Ex. P-5) was put to him, an objection was raised by the counsel for the defendant that it was a deed of partition and, as it did not bear the prescribed stamp, it was not admissible in evidence. There is a "note" saying that the document (Ex. P-5) has not been admitted in evidence and the objection was raised at the appropriate stage. It is not known whether this "note" was the defendant's contention or the Court's observation. After hearing both the parties, the learned trial Judge held that this document is a deed of partition and it requires stamp duty. The plaintiff's counsel then sought 15 days' time to get the document validated by the Collector on payment of such duty or penalty as would be demanded from him. The trial Court accepted the plaintiff's request and gave him time.
(3.) THEN the learned Civil Judge himself wrote a letter to the Collector of Khargone (No. 3743 dated July 5, 1963) with which he sent the document (Ex. P-5) with his remark that it effected a partition of the property worth about rupees one and a half lacs; that the plaintiff's share was Rs. 27,000/-; that it required stamp duty; and that a penalty was also liable to be imposed. He said in his letter that this was his opinion. In conclusion he said that the document (Ex. P-5) was being sent to him (Collector) for taking proceedings for its validation with the request that it be returned after the needful was done.;

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