IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1187 of 2009 Between: Padma and others .. Petitioners/Plaintiffs AND Kotagiri Kistamma and others .. Respondents/Defendants Revision against the order dated 11-11-2008 in O.S. No.39 of 2003 on the file of the Special Judge for trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy. The revision petition coming on for hearing, upon perusing the material in support thereof and upon hearing the arguments of Sri M. Rajamalla Reddy, Advocate for the petitioners and of Sri B. Nalin Kumar, Advocate for respondents 3 to 5, the Court made the following ORDER: Heard Sri M. Rajamalla Reddy, learned counsel for the revision petitioners and Sri B. Nalin Kumar, learned counsel for respondents 3 to 5. The revision is directed against the order of the V Additional District and Sessions Judge’s Court, Medak at Sangareddy in O.S. No.39 of 2003, dated 11-11-2008, by which the learned Judge overruled the objections of the revision petitioners against the marking and admissibility of Exs.B.35 and B.36. In the impugned order, the learned Judge observed that the objection to marking of Exs.B.35 and B.36 was taken after they were marked during the evidence of D.W.1 in his chief- examination and that these two documents are memoranda of partition containing the lists of properties already partitioned. The trial Court also observed that in view of the decision in L. Radha Krishna v. P. Srirama Sharma and others[1], the objection under Sections 35 and 36 of the Indian Stamp Act, 1899 about the admissibility of a document cannot be raised once the instrument is already admitted into evidence. The trial Court further noticed that Exs.B.35 and B.36 are certified copies issued by a Forum, but not xerox copies and the principle that certified copy of a document obtained from a Forum cannot be subjected to the test of Section 35 of the Indian Stamp Act, 1899, was also relied on. The trial Court, therefore, considered that Exs.B.35 and B.36 are admissible in evidence irrespective of whether the originals are properly stamped or not and also noted the submission on behalf of the defendants that the said originals are in the hands of the plaintiffs themselves. The overruling of their objections led the revision petitioners to approach this Court contending that when the originals of Exs.B.35 and B.36 are not properly stamped and are inadmissible in evidence, mere filing of the originals before the Municipality is not a ground to add any respectability to the documents and the partition deeds require stamp duty and registration, if they are to be admitted in evidence. The documents in question give the list of properties that fell to the share of each sharer and were signed on each page by the mediators, witnesses and the sharers purportedly on 11-10- 1973. Each of these lists, of course, mentions that a settlement was made in the presence of the sharers. However, it was not clear as to whether such settlement in the presence of the sharers was on 11-10-1973 as mentioned underneath the signatures of the parties. The material papers filed along with the revision petition show that the defence of the defendants is that P. Venkatesham, who was succeeded by defendants 1 to 8 and Sangaiah and Nagaiah were divided under an oral partition in 1967 itself, while subsequently Sangaiah and Nagaiah partitioned in the year 1973 under an oral partition, which was reduced into a memorandum on 11-10-1973, which shows, in so far as the contest of the respondents herein is concerned, that the same was based on a partition effected in 1967. They become mere partition lists as evidenced by the lists of properties under Exs.B.35 and B.36 memoranda. If they are lists of partition and only memoranda recording earlier oral partition, they may not require payment of any stamp duty or any consequential penalty if proper stamp is not paid. On the other hand, if they are the documents under which partition had taken place, they may be open to be construed as the instruments of partition subject to appropriate stamp duty, which, if not paid, will make the documents liable to stamp duty and penalty before being admitted into evidence before any civil Court. Subject to the decision of the trial Court about the alleged partitions in 1967 and 1973 orally, these documents could not have been excluded from being admitted into evidence at this stage when they are contended to be only records of the properties that fell to the shares of the sharers under an earlier partition. Jupudi Kesava Rao v. Pulavarthi Venkata Subba Rao[2] relied on by Sri Rajamalla Reddy to show that Section 36 of the Indian Stamp Act has no applicability to secondary evidence and the decision cited before the trial Court about the impermissibility of introducing copy of an insufficiently stamped document, etc., have no direct application at the present stage where Exs.B.35 and B.36 lists of properties that fell to the shares of the sharers in the partition, cannot be considered to have been proved to be documents under which partition was effected. Apart from the trial Court noting that the objection to the documents was taken after they were marked and the conclusion that the certified copies issued by a Forum cannot be subjected to the tests of Sections 35 and 36 of the Indian Stamp Act, in view of the factual foundation on which the defendants are relying on Exs.B.35 and B.36, they cannot be excluded from the evidence at this stage. It is always open to the revision petitioners to prove their version or disprove the claim of the defendants about the partitions said to have been effected in 1967 and 1973 orally and depending on the conclusions which the trial Court arrives at on the probabilities arising out of the evidence placed before it concerning such partitions, the credibility and admissibility of Exs.B.35 and B.36 will receive a consequential treatment in the determination of the rights of the parties. The defendants will naturally have the burden of proving oral partition set up by them, which has to be rebutted by the plaintiffs by contrary evidence and hence, the impugned order does not appear susceptible to any interference at this stage. Accordingly, the civil revision petition is dismissed. ____________________ G. BHAVANI PRASAD, J Date: 23-12-2009 Svv [1] 2007 (1) ALD 67 [2] AIR 1971 SUPREME COURT 1070