Dinakaran v. Venkatesan - CRP.PD.
273 of 2005 [2007] RD-TN 2346
(17 July 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.7.2007
CORAM
THE HON'BLE MR.JUSTICE S.ASHOK KUMAR
CRP(PD) No. 273 of 2005
Dinakaran ...Petitioner
Vs.
1. Venkaesan
2. Chandrasekaran
3. Mohan
4. Banumathi ...Respondents Civil Revision Petition is filed against the fair
and decretal order dated 4.1.2005 made in I.A.No.258 of 2004 in O.S.No:152
of 2000 on the file of the learned Subordinate Judge, Arni. For
Petitioner :Mr.V.Raghavachari For respondents :Mr.S.Umapathy ORDER
The above Civil Revision Petition is filed against the fair and decretal order
dated 4.1.2005 made in I.A.No.258 of 2004 in O.S.No:152 of 2000 by the
learned Subordinate Judge, Arni, dismissing the I.A., filed by the plaintiff
under Order 13 Rule 3 CPC to reject the Koorchit dated 19.5.1997, sought to
be marked by the respondents/defendants on the ground that it is an
unregistered document.
2. The revision petitioner/plaintiff filed the suit for partition of the suit
schedule properties into 4 equal shares and to allot one share to him. The
respondents are contesting the suit. It is the case of the respondents that
their father died in the year 1994, after his death they entered into an
understanding about the sharing of the joint family properties on 7.6.1996,
thereafter to give effect to the understanding reached, they entered into a
family arrangement (Kootchit) on 19.5.1997 with regard to the suit schedule
properties. In continuation of understanding reached on 7.6.1996, they
reduced he same into writing about the sharing of properties with its
descriptions and they are in enjoyment of their respective shares. It is the
case of the respondents that the plaintiff being the eldest son is keeping the
original koorchit and the plaintiff has filed the suit falsely after 4 years of the
said family arrangement.
3. During trial, the defendants marked Photostat copy of the said koorchit
dated 19.6.199 which is unregistered. The plaintiff filed the I.A., to reject the
said document. The respondents resisted the said I.A., stating that the very
existence of the said Koorchit has been admitted by the plaintiff in his
evidence. The learned Subordinate Judge, Arni on a consideration of the
pleadings and submissions of the respective counsels, dismissed the said
application holding that the document can be marked as an exhibit recording
the objection raised by the plaintiff and also to frame an additional issue with
regard to the admissibility of the said document. Aggrieved of the same, the
present revision is filed.
4. Learned counsel for the revision petitioner/plaintiff contended that since
right of an immovable property has been transferred by the Koorchit in
question, the same requires stamp duty and registration. Further the said
Koorchit is sought to be introduced after the examination of the parties are
over and at the time when the matter is posted for arguments. It is also
contended that the admissibility of the document should be tested at the
time of production of the document under Section 35 of the Stamp Act and
not at a later stage.
5. On the contrary, it is contended by the learned counsel for the respondent
that the family arrangement is a matter of fact and evidence on record that
the plaintiff and the defendants divided the property and are in possession
and enjoyment of their respective shares for all these years and in act the
petitioner has sold some trees that fell in his share and also gave no
objection for transfer of the patta and Electricity connection to be obtained
by the third defendant.
6. It is also contended by the learned counsel for the respondents that oral
partition and subsequent family arrangements reduced into writing are
admissible and they have the same effect of a registered deed. Learned
counsel also relied on the judgment of the Apex Court in 2004 (4) CTC 143 to
the effect that after partition deed when the parties have independently
dealt with the properties by effecting sales and effected mutation and also
paid assessment separately, the partition deed though unregistered does not
require registration and the admissibility of the document can be looked into
only at the time of trial. The decision of this court reported in 2004 (3) CTC
481 is also relied on for the proposition of law that the question regarding
the time at which documents were produced are to be tested in trial after
marking the same.
7. In In 2003 (3) MLJ 45 (Balakrishnan & another Vs. Chandrasekharan), this
court held that it is settled law that if the family arrangement is reduced to
writing and it purports to create, declare, assign, limit or extinguish any
right, title or interest of any immovable property, it must be properly
stamped and duly registered as per Indian Stamps Act and Indian
Registration Act. But in the said decision it has been observed that if the
family arrangement is stamped, but not registered, it can be looked into for
collateral purposes.
8. In 2006 (1) TLNJ (Civil) 595 (Lingappa Gounder Vs. Palanisamy and others)
this court again held that interest on immovable properties for more than
Rs.100/= are transferable only through a registered document as per Section
17 of the Indian Registration Act.
9. In 2005 (2) CTC 385 (Amudha and others Vs. K.Jeyaraman and another)
this court held that even the suit property claimed to be purchased out of
ancestral nucleus as evidenced by such unregistered document cannot be
received in evidence and the defect of non registration cannot be cured by
paying penalty.
10. In 2006 (2) LW 437 (Pyarijan Vs.Puttapa & another) also this court held
that when the document is inadmissible in evidence it cannot be looked into
for any purpose and under Section 49 of the Registration Act, no document
required by Section 17 or any of the provisions of the Transfer of Property
Act to be registered shall be received as evidence of any transaction
affecting immovable property, and the same cannot be used in any legal
proceedings to bring out indirect effect which it would have if registered. This
court further held that documents which are inadmissible for want of
registration may at times be admissible for collateral purpose. A collateral
purpose is a purpose other than creating, declaring, assigning, limiting or
extinguishing a right of immovable property and in this case the purpose of
document is for advancement of loan and at the same time creating an
interest in the immovable property to enjoy the usufructs for a period of
three years, the document being unregistered is inadmissible in evidence of
the transaction, affecting the immovable property.
11. In 2005 (1) LW 343 (DB) R.Deivanai Ammal (died) & Anr Vs. G.Meenakshi
Ammal and others, a Division Bench of this court reiterated that if document
of family arrangement is reduced to writing, it purports to create,
declare/extinguish right, title or interest of the properties and in such
circumstances it must be properly stamped and duly registered as per the
Stamp Act and Registration Act.
12. In 2004 (I) LW. 706, Bondar Singh Vs. Nihal Singh wherein Their
Lordships have held that "Under the law, a sale deed is required to be
properly stamped and registered before it can convey title to the vendee.
However, legal position is clear law that a document like the sale deed in the
present case, even though not admissible in evidence, can be looked into for
collateral purposes." The learned counsel also relied on the Division Bench of
this Court reported in 2004 (3) MLJ 362 (Venugopal @ Alagarsamy and ors
Vs. Bajanai Alagarsamy and another) wherein this court held that "though
unregistered documents are inadmissible in evidence, they may be
considered for collateral purpose'.
13. In AIR 1987 Patna 191 (FB) Amar Singh Yadav V.Shanthi Devi a Full
Bench of the Patna High Court held that where there is a direct conflict
between two decisions of the Supreme Court by co-equal Benches, the High
Court must follow the judgment which states the law more elaborately and
accurately and the question whether the decision is earlier or later, is not the
criteria.
14. Therefore, when there is a conflicting judgments by the two co-equal
Benches, the judgment of the larger bench which directly deals with in detail
about the controversy regarding the stamp Act has to be preferred than the
other judgments which does not discuss about such controversy.
15. However, in 2005 (4) MLJ 337 (Tmt.Indirani Vs.Seetharaman), which is
elaborate on the point of admissibly, a learned Single Judge of this held as
follows:- "14. In Bondar Singh and others Vs. Nihal Singh and others (2004) I
L.W. 706 the Apex Court has observed: "Under the law, a sale deed is
required to be properly stamped and registered before it can convey title to
the vendee. However, legal position is clear law that a document like the sale
deed in the present case, even though not admissible in evidence, can be
looked into for collateral purposes."
15. This observation guided the learned trial judge to admit the documents,
in question, in evidence, though they are unstamped. In the case involved in
the above decision also, the documents ought to be relied on was an
unregistered and unstamped sale deed. But, the same was admitted, in
evidence, for collateral purposes. Though such an observation has been
made, the Hon'ble Apex Court has not considered the effect of Section 35 of
the Stamp Act. If Sec.35 of the Stamp Act was considered and the wording
stated therein, vi., 'for any purpose', is ignored, then, if it is said, it can be
taken as the law declared by the Apex Court, which is binding upon the
Courts below throughout the breadth and length of this country. As seen
from the above decision, nowhere it is discussed about the effect of Section
35 of the Stamp Act, though in the head note, the publishers have stated,
Stamp Act Secs. E35, 32, 36 Registration Act, 49, etc., In the absence of any
discussion about the payment of stamp duty and penalty, mere observation
that the document could be looked into, for collateral purposes, alone, is not
sufficient to allow all the documents un stamped, which required stamp duty,
should be admitted in evidence, thereby offending the statute viz., in this
case Section 35 of the Stamp Act. In this context, it is useful to refer to the
decision of the Apex court in Bipin Shantilal Panchal V. State of Gujarat and
another (2001) 3 SCC 1 and Chilakuri Gangulappa V. revenue Divisional
Officer, Madanapalle and another, (2001) 2 MLJ 33(SC).
16. In the first decision, the objection raised regarding the admissibility of a
document came before the Apex Court, for consideration. The Apex Court in
a way, criticised the archaic practice and prescribed guidelines as to how the
documents should be admitted in evidence, despite the objection raised by
the other side. It is observed that, "Whenever an objection is raised during
evidence taking stage regarding the admissibility of any material or item of
oral evidence, the trial court can make a note of such objection and mark the
objected documents tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such objections to be decided
at the last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable, the Judge or Magistrate can keep
such evidence excluded from consideration. In our view there is no illegality
in adopting such a course. (However, we make it clear that if the objection
relates to deficiency of stamp duty of a document, the Court has to decide
the objection before proceeding further. For all other objections, the
procedure suggested above can be followed."
17. The last portion of the above observation makes it clear that if the
objection relates to deficiency of stamp duty of a document, the court has to
decide the objection before proceeding further.' Therefore, in this case, the
trial court should have considered, whether the documents require stamp
duty and penalty or not, before allowing the documents to be admitted, in
evidence, for collateral purposes, which was not followed. Therefore, I am
unable to affix my seal of approval, as such, to the order passed by the trial
Court, which requires modification.
18. In the second case viz., Chilakuri Gangulappa Vs Revenue Divisional
officer, Madanpalle and another (2000 2 MLJ 33, the Apex Court considering
Sec.38 of the Indian Stamp Act, 1899, and the fact under what
circumstances, as insufficiently stamped document could be admitted in
evidence, has observed that it is the duty of the Court, at the first instance,
that if the Court finds that the instrument is insufficiently stamped, it should
call upon the party, as to whether he would remit the deficient portion of the
stamp duty together with a penalty, amounting to ten times the deficiency,
and in the case if the party agrees to remit the said amount, the Court has to
proceed with trial, after admitting the document in evidence. Then, it
contemplates what are the further proceedings to be initiated under Sec.38
of the Stamp Act etc. In the case involved in the above decision also, an
insufficiently stamped document came to the consideration of the Apex
Court. If the Apex Court was of the view that un-stamped or unregistered
documents are, automatically, to be admitted in evidence, without reference
to Section 35 of the Indian Stamp At, then the Apex Court would not have
observed that the Court should call upon the party to remit the deficient
portion of the stamp duty together with a penalty, amounting to ten times
the deficient or even the lesser penalty. Since the Apex Court was conscious
about Section 35 of the Stamp Act, while considering Section 38, it is
observed on the basis of Section 38(1) of the Stamp Act:- It is clear from the
first sub section extracted above that the court has a power to admit the
document in evidence if the party producing the same would pay the stamp
duty together with a penalty amounting to ten times the deficiency of the
stamp duty. When the court chooses to admit the document on compliance
of such condition, the court need forward only a copy of the document to the
Collector, together with the amount collected from the party for taking
adjudicatory steps. Thus, showing, if the party fails to pay the stamp duty
and penalty, the document is not to be admitted in evidence, in view of the
embargo contemplated under Section 35 of the tamp Act. This ruling also,
supports Section 35 of the Stamp Act, that no document shall be admitted in
evidence for any purpose, unless it is properly stamped, and in case, if it is
not properly stamped, without payment of stamp duty and penalty and that
is the reason, we find the words in Sec.38(1) of the Stamp Act that 'when the
person impounding an instrument in evidence, upon payment of a penalty,
as provided by Sec.35 or of duty as provided by Sec.37...'thereby confirming,
without payment of stamp duty and penalty, no document shall be admitted
in evidence. Xx xx xx xx xx
20. There cannot be any dispute, as long as Section 35 of the Stamp Act is
available in the Statute, that the same is to be applied for all the
instruments, which require stamp duty. This being the position, unless a
finding is given as observed by the three Judges Bench of the Apex Court, in
Bipin Shantilal Panchal V. State of Gujarat (2001) 3 SCC 1, regarding the
stamp duty and penalty, the document cannot be admitted in evidence, as if
it can be looked into for collateral purpose. No doubt, it is true, a document,
which is unregistered or unstamped can be looked into for collateral purpose,
provided, provisos to Sec.35 of the Stamp Act are complied with, and not
otherwise. The above position of law was not considered properly by the trial
court and therefore, the order of the trial Court requires modification, in my
considered opinion, in view of the admitted position that the documents in
question, require stamp duty and penalty".
16. I am in agreement with the views expressed by my Learned Brother
M.Thanickachalam,J., Though the judgment of the Supreme Court relied on
by the revision petitioner in 2001 (1) CTC 112 (AC.Lakshmipathy & Anr. V.
A.M.Chakrapani Reddiar and 6 Ors), still, the judgment of this court in 2005
(4) MLJ 337 (Tmt.Indirani Vs. Seetharaman) relied on by the learned counsel
for the respondent, which is supported by several decisions of the Apex
Court as relied on by the learned Single Judge in the said decision, has to be
followed, because the point is not which is the earlier or later, but the point is
which judgment discusses the point in issue directly involved in the
particular case elaborately and accurately.
17. Therefore it is clear that no document shall be admitted in evidence if it
is not properly stamped, and if already not stamped, then stamp duty should
be paid with penalty as prescribed by the authority. As far as the present
case is concerned, it is alleged that the plaintiff himself admitted the
existence of the koorchit in his evidence. As rightly held by the trial court
unless the document is marked, there will not be any opportunity for the
plaintiff to oppose and cross examine the defendants on the execution of the
said koorchit. In the absence of payment of the stamp duty with penalty, the
trial court has committed an error in marking the document. Hence, the
order of the trial court is liable to be modified.
14. In the result, this CRP is allowed in part and the order of the trial court is
modified. The trial court is directed to ascertain the stamp duty and penalty
payable upon the disputed document, then call upon the defendants who
want to rely on the document, to pay the stamp duty and penalty, and then
on payment of stamp duty and penalty, admit the document in evidence,
whether it is for collateral purpose or otherwise, and admissibility of the
same can be decided by framing necessary issue at the later stage while
hearing the case as guided by the Apex Court in Bipin Shantilal Panchal V.
State of Gujarat and another (2001) 3 SCC 1. Consequently, connected MP is
also dismissed. No costs.
gkv
Copy to:
The Subordinate Judge,
Arni
