IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 36629 of 2004(I) -------------------------------------- OS.331/2001 of MUNSIFF COURT, PUNALUR ........................................... PETITIONER: ---------------- C.N.ANIL KUMAR, S/O.NARAYANA PILLAI, R/A. MULLACKAL PUTHEN VEEDU, SASTHAMKONAM MURI, PUNALUR VILLAGE. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR RESPONDENTS: --------------------- 1. M.R.SURESH, S/O.M.RAMACHANDRA PANICKER, R/A. GAYATHRI BAHVAN, BHARANIKKAVU WARD, PUNALUR. 2. M.R.GAYATHRI DEVI, D/O.DO. R/A.SOORYA GAYATHRI, K.P.S./950, KUDAPPANAKUNNU MURI, AND VILLAGE, THIRUVANANTHAPURAM. 3. SUMATHY AMMA, R/A. MELATHIL VEEDU, NEAR E.S.I. PUNALUR VILLAGE. 4. M.R.SEKHAR, S/O.RAMACHANDRA PANICKER, R/A. GAYATHRI BHAVAN, BHARANIKKAVU WARD, PUNALUR MURI AND VILLAGE. * 5. K.NARAYANA PILLAI, S/O.KRISHNA PILLAI, R/A.MULLACKAL PUTHEN VEEDU, SASTHAMKONAM MURI, PUNALUR VILLAGE. *5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 19/01/2006 IN WP(C). ADV. SRI.G.S.REGHUNATH FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 36629/2004 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE DOCUMENT EXECUTED BY M.R. SEKHAR IN FAVOR OF M.R.SURESH. EXT.P2. COPY OF THE ORDER IN IA N 2057/2004 IN OS NO. 331/2001, MUNSIFF'S COURT PUNALUR. RESPONDENT'S EXHIBITS : NIL. / TRUE COPY / tga M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 36629 OF 2004 ------------------------------------------ Dated this the 10th day of July, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P2 order passed by Munsiff, Punalur in I.A. 2057 of 2004 in O.S. 331 of 2001 rejecting the objections raised on the admissibility of the document as insufficiently stamped. 2. Learned senior counsel appearing for petitioner and learned counsel appearing for contesting respondent were heard. 3. Under Ext.P2 order learned Munsiff found that the disputed document is not a bond as canvassed by the defendants and instead it is an agreement and it is properly and sufficiently stamped. This petition is filed contending that though the document recites about pre-existing liability, a new liability is created under the document and that liability is a liability to pay Rs.5,00,000/- within a period of five years from the date of the document and therefore it could only be a bond and if so the WPC36629/04 2 document is not sufficiently stamped and is to be impounded as provided under Section 33 of the Kerala Stamp Act. 4. Ext.P1 the copy of the document shows that executants of the document are brothers. A joint property owned by both of them was sold earlier. Out of the sale consideration Rs.5,00,000/- was due to first respondent Suresh from fourth respondent Sekhar. The document further recites that fourth respondent did not pay the amount to the first respondent and therefore under the document, fourth respondent agreed to pay the same within a period of 5 years. If the document only provides for the payment of money, argument of the learned senior counsel that it is a document could have been accepted, even if it is taken that the liability created therein is a new liability and not the original pre- existing liability. But the document further recites that if fourth respondent could not pay that amount, fourth respondent would assign 5 cents of the property allotted to him under the Partition Deed. Document finally recites that if as agreed fourth respondent did not pay an amount of Rs.5,00,000/- within a period of 5 years first respondent is entitled to realize the said WPC36629/04 3 amount or the property provided under the document. If that be so, it cannot be said that the liability created under Ext.P1 is a liability to pay money alone. 5. The definition of a bond under Section 2A of Kerala Stamp Act reads:- “(a) “bond” includes - i. any instrument whereby a person obliges himself to pay money to another, on conditions that the obligation shall be void if a specified Act is performed, or is not performed as the case may be; ii.any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and iii.any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another ” 6. It is clear from the definition that an instrument would be a bond only if thereunder the person obliges himself to pay money or to deliver grain or agricultural produce to another. WPC36629/04 4 If the liability created under the instrument is also a liability as in the case, to transfer a property then it cannot be a bond. If so Ext.P1 cannot be a bond as canvassed by the petitioner. Hence I do not find any illegality in Ext.P2 order. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-