(1) The 2nd defendant in the suit filed a document styled as 'partition list' dt. 18 - 5 - 1966 which contains 'a"b' and 'c' schedules. 'a'schedule properties are described as properties which fall to the share of the first defendant and 'b' and 'c' schedule properties are described as properties fallen to the share of the sons of the 1st defendant. It is mentioned in the documents.
"bhaganiki vatchi yidivarake swadhinam chesukonna aschipatti vivaram" (in telugu). Evidence has been let in wherein the party who sought the document to be marked stated that the division took place on the same day i. E. 18 - 5 - 1966 and the partition lists are prepared in pursuance of the partition on the same day. The learned subordinate judge took into consideration clause (13) of article 2 of indian stamp act and the amendment in a. p. act 17 of 1986 with regard to the definition of 'instrument of partition' defined in clause (15) of article 2 of the indian stamp act, 1899 and the decision of this court reported in m. Shankar reddy vs. D. Ranga reddy (11 came to the conclusion that the document comes under the definition of 'instrument of partition ard as it is not duly stamped it is not admissible in evidence and the objection raised by the plaintiff with regard to the admissibility of the document dt. 18 - 5 - 1966 was upheld. The 2nd defendant filed this revision petition seeking to set aside the order of the lower court on the ground that the instrument is an old document it need not be registered and the amendment act 17 of 1986 has no application at all.
(2) The contention of sri c. Pattabhirama rao, the learned counsel for the petitioner is that the lower court has misconstrued the provision of law and the definition of section 2 (15) of the indian stamp act as amended by a. p. act 17/86 and the lower court also failed to see that the amendment act is not retrospective in operation.
(3) The definition of 'instrument of partition' as contained in section 2 (15) of the indian stamp act, 1899 reads as follows :
"2 (15) "instrument of partition : - "instrument of partition" means any instrument where by co - owners of any property divide or agrees to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any civil court and an award by an arbitrator directing a partition and a memorandum regarding past partition. "
(4) The description given to a document is not determinative of the true nature of the transaction. The true nature of the transaction has to be ascertained on a reading of the recitals in the document as a whole. The intention of the parties has to be gathered by ascertaining the result sought to be achieved by the document in question. Whether the results sought to be achieved have been achieved or not is not relevant for the purpose of determining the real character of the transaction for the purpose of ascertaining the stamp duty payable under the indian stamp act where in a document there is the slightest indication of any partition had taken place earlier and in fact in so many words that by that partition, a partition was being effected, then it is a deed of instrument of partition.
(5) In the instant case, as pointed out ajready, on the same day partition took place and the lots have been drawn on the same day. Therefore, it cannot be said that it is a record of past transaction. The parties with a clever mind tried to avoid the stamp duty and it is the duty of the court to see the document as a whole. On a reading of the document as a whole, it is clear that it is an instrument which requires registration and stamp duty and it clearly falls within the defination of section 2 (15) of the indian stamp act as amended by act 17 of 1986. It is the cardinal principle ot construction for every statute that it is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. The contention that it is prospective in operation has no force.
(6) The learned counsel for the petitioner has relied upon a decision of the supreme court in income tax officer, tuticorin vs. T. S. Devinatha nadar (2) and also another decision of the supreme court in income tax officer vs. S. K. Habibullah (3). Even in the first of the two cases it has been pointed out that the court must look to the general scope and purview of the statute, and at the remedy ought to be applied, and consider what was the former state of the law and what was that the legislature contemplated. By the amendment, the legislature has contemplated that the instrument of partition also has to be brought under the purview of the act and there is no exemption from stamp duty. If a document is sought to be marked in evidence the crucial date that has to be taken into account is the date of filing of the document into court. Merely because the document dt. 18 - 5 - 1966 is anterior to the amendment, it does not mean that the court has no power to look into the document and apply the statute as on the date of the filing of the document, the contention of the learned counsel that the amendment has no retrospective effect has no force. On the other hand the legislature intended to bring such as the instrument, as is now under consideration to be brought under the definition of section 2 (15) in m. Shartkar reddy vs. D. Ranga reddy (1 supra) this court considered the scope and effect of section \j (1) (b) and 49 of the registration act and seclion 2 (15) and schedule i, article 45 of the indian stamp act. My learned brother, setharam reddy. J. After referring to the case law on this subject and after going through the documents sought to be exhibited by the fourth defendant in th. It case and which were rejected by the trial court as inadmissible, held as follows : -
". The documents purport to bring in to effect the drivision and allotment of properties and so are liable to stamp duty as well as registration. If that be so, they are inadmissible ia evidence and therefore very rightly the lower court rejected to entertain the claim of the petitioner herein which order therefore, warrants no interference from this court as it does not suffer from any junsdictional error or material irregularity."
(7) I am in entire agreement with the learned judge and i hold that the learned subordinate judge has rightly upheld the objection of the plaintiff regarding admissibility of the partition list dt. 18 - 5 - 1966. The order of the lower court warrants no interference as it does not suffer from any error of jurisdiction or material irregularity.
(8) The revision petition is, therefore, dismissed. No costs.