( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2368 OF 2010 Shri Sanjay Mohanlal Agrawal, R/o Bodwad, Tal. Bodwad, District Jalgaon, through Power of Attorney Vidya Sanjay Agrawal, R/o Bodwad, Tal. Bodwad, District Jalgaon. PETITIONER VERSUS 1. Shri Gopal Mohanlal Agrawal, R/o Opp. Bhusawal Peoples Bank, Bodwad, Tal. Bodwad, District Jalgaon. 2. Shri Pralhad Mohanlal Agrawal, R/o Gandhi Chowk, Bodwad, District Jalgaon. 3. Sau. Narmadabai Satyanarayan Singhaniya Since deceased, through L.Rs. 3A. Sau. Prabhabai Bhagwandas Agrawal, R/o Hatnur, Tq. Balapur, Dist. Akola. 3B. Sau. Sarlabai Gaurishankarji Dedhiya (Agrawal), R/o R.G. General Stores, Mahatma Gandhi Road, Adilabad, District Adilabad (Andhra Pradesh). 3C. Sunita Vijay Agrawal, R/o c/o Hira Enterprises, Nehru Road, Jalna. 3D. Sau. Sangitabai Laxmikantji Agrawal, R/o Jugalkishorji Chandulalji Agrawal Anjansingi, Tq. Dhamangaon Railway, District Amrawati. 3E. Sau. Jayshree Sushilbabu Murarka, R/o c/o Murarka Medical Stores, Adilabad. 3F. Ganesh Satyanarayanji Singhaniya, R/o “Satyanarmada”, Opp. Navjeevan Mangal Karyalaya, Rajendra Nagar, ( 2 ) Dhamangaon Road, Yeotmal, District Yeotmal. 4. Sau. Anjanabai Shivkumar Ladniya, R/o Rajendra Prasad Road, Near Ram Mandir, Jalna. 5. Shantabai Radheshyam Bagdiya Since deceased, by L.Rs. 5A. Shri Vijaykumar Radheshyam Agrawal 5B. Shri Vishnu Radheshyam Agrawal 5C. Shri Deepak Radheshyam Agrawal Respondents No. 5A to 5C are r/o Shukrawar Peth, Washim, District Akola. 5D. Sau. Mirabai Vinodkumar Agrawal, R/o C/o Shri Pralhadchandji Chaganlalji Agrawal, at post Achalpur City, Dist. Amrawati. 5E. Sau. Jyoti Deepak Agrawal, R/o c/o Shri Deepak Gyarsilalji Agrawal, Vaishnav Apartment, Jawahar Chowk, Snauesinagar, Akola. 6. Sau. Parvatabai Narayandas Agrawal, R/o c/o Shri Bharatlalji Nemichandji Agrawal, Mangal Bazar, Main Road, Nandurbar, Dist. Nandurbar. 7. Sau. Sushila Subhashchandra Gupta, r/o Bodwad, Tal. Bodwad, Dist. Jalgaon. 8. Shri Rajendra Pralhad Agrawal, R/o Gandhi Chowk, Bodwad, Tal. Bodwad, District Jalgaon. 9. Shri Chandrakant Deoram Malkar, R/o at post Jamthi, Tq. Bodwad, District Jalgaon. 10. Sau. Pratibha Chandrakant Malkar, R/o at post Jamthi, Tal. Bodwad, District Jalgaon. 11. Sau. Radha Nitin Malkar, R/o at post Jamthi, Tal. Bodwad, Dist. Jalgaon. RESPONDENTS ..... Mr. P.S. Shendurnikar, advocate for the petitioner. Mr. A.M. Gholap, advocate for the respondent No. 1. ..... ( 3 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th June, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel for the parties, heard finally. 2. By this petition, the petitioner challenges order dated 3rd March, 2010, rendered by the learned Civil Judge (S.D.), Jalgaon on application (Exh-372) filed in suit (Spl.C.S. No. 115/2003). By that order, objection application filed by the present petitioner, who is original defendant No. 2 in the suit, came to be rejected. 3. The dispute lies in a narrow compass. The respondent No. 1 filed suit for partition and separate possession in respect of various properties which are shown in the claim clause. The respondent No. 1 (plaintiff) also filed on record a xerox copy of memorandum of partition dated 20th January, 1993. The case of the respondent No. 1 is that there was family partition effected between himself and his brothers during lifetime of his father. He asserted that the brothers ( 4 ) confirmed the partition effected by the father and, therefore, the memorandum of partition was brought into existence. He submitted that the defendants did not give his due share and, therefore, was required to file the suit. 4. The respondent No. 1 filed an application seeking production of the original document i.e. memorandum of partition. However, that was not produced. The respondent No. 1 entered the witness box and the alleged copy of the memorandum of partition was relied upon. It appears that there were two (2) such documents, one captioned as memorandum of partition dated 3rd June, 1992 and another dated 20th January, 1993. The petitioner submitted an application for impounding the documents and imposing penalty on both the documents. The petitioner alleged that the respondent No. 1 had erroneously referred to the said documents as memorandums of partition. According to the petitioner, the documents were attempted to be used as deeds of partition and, therefore, were liable to be impounded due to insufficient stamps used for the purpose of bringing them out. The trial Court rejected the objection and dismissed, therefore, the application (Exh-370). ( 5 ) 5. Mr. Shendurnikar P.S. strenuously argued that the document ought to have been impounded because it is covered by provision of section 2 (m) of the Bombay Stamp Act, 1958. He submits that by virtue of sub-clause (iii) of section 2 (m), the document is covered by the expression “instrument of partition”. He contended that the application should not have been rejected without considering the relevant evidence and nature of the document. As against this, Mr. Gholap supports the impugned order. 6. Section 2 (m) of the Bombay Stamp Act, 1958 reads as follows : “2 (m) “instrument of partition” means any instrument whereby co-owners of any property divide or agree to divide such property in severally and includes, - (i) a final order for effecting a partition passed by any revenue authority or any civil court, (ii) an award by an arbitrator directing a partition, and (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.” ( 6 ) Perusal of sub-clause (iii) reveals that the instrument may amount to instrument of partition even if there is mere declaration of the partition as per terms of the partition which is effected without executing any such instrument. The learned counsel would also invite my attention to the opinion of the commentator on the interpretation of sub-clause (iii). 7. It is important to note that a memorandum of partition is an instrument which indicates what kind of division was made in the past. The purpose of such document is to prepare record about the past event. So, the litmus test to be applied is as to whether the division of the properties made by the document itself or that it was already made and the document is only a formal record of the previous division. In the present case, the document itself is styled as “memorandum of partition”. The respondent No. 1 has come out with a specific case that the partition was effected during lifetime of his father and the division was confirmed by virtue of execution of the said document. Needless to say, prima facie, the document did not effect division of the properties amongst the respondent No. 1 and his brothers. The use of such memorandum of partition is only for corroborative purpose. The document has to be read alongwith the oral and other evidence for the purpose of recording finding as regards ( 7 ) the previous partition alleged by the party. The document in question does not show that it was intended to bring about the partition through that instrument. Consequently, it is not chargeable with the stamp duty. 8. There cannot be duality of opinion that partition of the joint family properties can be made without any documentary evidence. The parties may agree orally to effect partition. Such understanding between the parties and oral division of the properties would not amount to transfer and, therefore, does not require execution of any registered document nor does it require, in fact, execution of any document as such. The memorandum of partition is recording of such oral arrangement made by the parties. Consequently, it is difficult to say that the impugned document is instrument of partition and the interpretation of sub-clause (iii), as submitted by Mr. Shendurnikar, is not acceptable. The expression “the instrument signed by the co-owners and recording whether by way of such partition or otherwise” would imply that partition is effected and such declaration is recorded vide the instrument and, therefore, it may come within the ambit of sub-clause (iii) of section 2 (m). In the present case, the respondent No. 1 approached the Court with a ( 8 ) specific case that the father had divided the properties during his lifetime. So, it is not an instrument whereby record is created regarding declaration of the properties amongst the brothers by their own acts. The document reflects what the father had done during his lifetime and the intention was that the brothers should understand the arrangement made in the past by their father. 9. Considering the nature of the document and the relevant provisions and the purpose of bringing about the document, the impugned order cannot be faulted with. The objection raised by the petitioner is, therefore, rightly decided by the trial Court. The issue regarding another document dated 20th January, 1993 may be considered by the trial Court after the evidence of the parties is over and the same is kept open. The petition is thus destitute of substance and is accordingly dismissed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp2368-10