Madras High Court
Jansirani vs G.Loganathan on 5 April, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/04/2007 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRP.(PD) (MD) No.882 of 2006 and M.P.(MD)No. 1 of 2006 1. Jansirani 2. Kohila 3. Seethalakshmi 4. Savithri 5. Rajeswari 6. Arasakumari ... Petitioners Vs 1. G.Loganathan 2. G.Sathiyanarayanan 3. G.Senthilkumar ... Respondents Prayer This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order of the learned I Additional District Judge, Tiruchirappalli (P.C.R) dated 07.04.2005 in I.A.No.173 of 2005 in O.S.No.182 of 2004. !For Petitioners ... Mr.G.R.Swaminathan ^For R1 ... Mr.M.Sidharthan For RR.2 & 3 No Appearance :O R D E R
This Civil Revision Petition has been filed by the petitioners, challenging the order dated 07.04.2005, made in I.A.No.173 of 2005 in O.S.No.182 of 2004, on the file of the learned I Additional District Judge(P.C.R), Tiruchirappalli.
2.Brief facts of the case are as follows:-
The petitioners herein are the plaintiffs and the respondents herein are the defendants in O.S.No.182 of 2004, on the file of the learned I Additional District Judge (P.C.R), Tiruchirappalli. The said suit was filed for partition and separate possession and also for mean profits. During the pendency of the trial, the petitioners/plaintiffs have filed an application in I.A.No.173 of 2005, under Order 13 Rule 1 C.P.C., for reception of a photocopy of the partition deed dated 04.12.1998, said to have been entered into between one Govindaraju Pillai and others. The fourth petitioner has filed an affidavit in support of the said application, wherein he has stated that a partition was entered into during the lifetime of Govindaraju Pillai, which was reduced into writing and signed by all the parties. But the first defendant had retained the original with him. The fourth petitioner herein has further averred that the said document is a material documentary evidence to prove the facts and since she has got only a photocopy of the same, it should be admitted as secondary evidence on their part.
3. Resisting the said move, the first respondent has filed an objection, wherein he has stated that no such partition was entered into and there was no such document written and signed by the parties. Therefore, according to him, there is no question of retaining the original document by him. Hence, he prayed for dismissal of the said I.A.
4. On considering the relevant materials available on record, the learned District Judge, has dismissed the said application on the following grounds:-
(i) the original partition deed said to have been entered into is not available for the purpose of comparing the same with the xerox copy which is sought to be marked in evidence and therefore, as per Section 63 of the Evidence Act, the xerox copy which is now produced cannot be called as a secondary evidence so as to be proved under Section 65 of the Evidence Act.
(ii) There was no notice issued to the defendant to produce the document, as required under Section 65(a) of the Evidence Act, and therefore, without satisfying the said provision, the xerox copy cannot be admitted in evidence.
(iii) The document is inadmissible in evidence for the reason that the same has neither been sufficiently stamped nor registered though it should be compulsorily registered.
(iv) Even for collateral purpose the said document cannot be accepted in evidence. Against the said order of dismissal, the petitioners herein have filed this civil revision petition.
5. The learned counsel for the petitioners would state that the said document is certainly admissible in evidence and the contrary order of the lower Court deserves to be set aside for the following reasons:-
(i) The document now in question is no doubt a xerox copy. But, there is no dispute raised by the defendant regarding the accuracy of the said document.
Therefore, the production of the original document for the purpose of comparison is not at all required, to bring the document within the limb of Section 63(2) of the Evidence Act, so as to call the same as a secondary evidence. He would further contend that the document in question would not fall within the ambit of Section 63(3) of the Evidence Act, which alone requires comparison of copies made from copies.
(ii) Secondly, the learned counsel would submit that the requirements of Section 65(a) of the Evidence Act, have been satisfied. He would further contend that the conclusion of the lower Court that the document cannot be admitted in evidence in the absence of any notice to the defendant for production of document and consequential failure of the defendant to produce the same cannot be accepted for the simple reason, that even in the counter it is the definite case of the defendants that no such document was executed at all and he is not in possession of any such document. When that is his case, there would be no purpose served by issuing a notice to him to produce the document. Insisting upon for such a notice shall be only an empty formality.
(iii) The third contention of the learned counsel for the petitioners would be that the document in question cannot be construed to be a partition deed requiring registration and also stamp because, the said document is a family arrangement and it was prepared only to evidence the division of properties already taken place and this is like an acknowledgment which does not require any stamp or registration.
(iv) The fourth contention of the learned counsel for the petitioners is that even assuming that the said document is construed to be a partition deed which require stamp and registration, still it can be used for the purpose of estoppel to be proved against the defendants who have signed the document.
(v) Lastly, the learned counsel for the petitioners would submit that the genuineness or otherwise of the document, which is not disputed by the defendants can be gone into only at the time of trial and at the appropriate stage to test the same.
6. Per contra, the learned counsel for the respondents would submit that:-
(i) This document would certainly fall under Section 63(3) of the Evidence Act, and therefore, in the absence of the production of the original document for the purpose of comparison, it cannot be admitted in secondary evidence.
(ii) With regard to the second contention, the learned counsel for the respondents would submit that irrespective of the stand taken by the defendants, notice should have been issued so as to satisfy the requirement of Section 65(a) of the Evidence Act.
(iii) In regard to the third contention, the learned counsel for the respondents would submit that a careful reading of the document in question would show that it is nothing but a partition deed, as it is this document which divides the properties and therefore, it needs stamp and registration and in the absence of the same, it cannot be used for any purpose.
(iv) With reference to the fourth contention, the learned counsel for the respondents would contend that in the absence of any proof, that the document was signed by the defendants, it cannot be used for the purpose of applying the rule of estoppel. The learned counsel would further state that even for collateral purposes, the said document cannot be admitted in evidence.
(v) With reference to the last contention, the learned counsel for the respondents would submit that in the absence of any proof that such a partition was effected, this document cannot be construed to be a genuine document and so, it cannot be proved as secondary evidence.
7. I have considered the rival contentions made by the learned counsel for both the parties, and also perused the records. In respect of the first contention of the respective counsel, I am of the considered view that this document falls under Section 63(2) of the Evidence Act, and therefore, it is certainly a secondary evidence and the reasons for such view are as follows:-
Section 63(2) and (3) read as follows:-
"63(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
63(3) copies made from or compared with the original;"
8. The contention of the learned counsel for the respondents that the document falls within the ambit of Section 63(3) of the Evidence Act, is to be only rejected for the simple reason that this sub clause deals with copies made from the original not by mechanical process for e.g., typed copies from the original or hand written copies from the original etc., which do not ensure accuracy in themselves unless they are compared with the originals. Therefore, to prove a typed copy or hand written copy etc., to ensure the accuracy, the original should be available for the purpose of comparison. But, the document which is now under consideration does not fall within the ambit of Section 63(3) of the Evidence Act at all. A plain reading of Section 63(2)of the Evidence Act, would show that any copy made from the original by mechanical processes which in themselves ensure the accuracy of the copy fall within the definition of secondary evidence. No doubt, a xerox copy is made from the original by mechanical processes and the accuracy is also ensured. So, I have no hesitation to hold that the xerox copy of the document sought to be marked falls within the definition of secondary evidence.
9. The next contention is that in the absence of compliance of Section 65(a) of the Evidence Act, the said document cannot be admitted as secondary evidence. Section 65 (c) reads as follows:-
"(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;"
No doubt to admit the xerox copy in question requirement of Section 65(c) should be satisfied.
10. In this case, admittedly no such notice has been issued by the plaintiffs requiring the defendants to produce the original. But, it is the definite case of the defendants that no such original document was executed and therefore, no such document is available in the hands of the defendants. When that be so, issuing such notice shall be only an empty formality. The very object of Section 65(a) is to have on record, the best evidence by way of primary evidence and to allow the secondary evidence, if only the primary evidence could not be secured. From the definite stand of the defendants that the primary evidence is not with them; it is manifestly clear that the best evidence viz the primary evidence cannot be secured. Therefore, insisting upon notice will be only an empty formality.
11. The above conclusion draws support from the case reported in 2001(4) CTC 266 (D.Sarasu Vs. Jayalakshmi and 2 others) wherein, this Court has held in paragraph No.11 of the said Judgment as follows:-
"11. After stating that the plaintiffs clearly made a reference to Ex.1 in the plaint, defendants 1 and 2 denied the existence of such a document. The question of calling for documents from them does not arise and held that Exhibit 1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence. The said conclusion supports the case of the petitioner herein. In the light of Section 63, 65(a) and 66 of the Indian Evidence Act and in view of the plea made in the plaint, assertion by P.W.6 in his evidence regarding the fact that the original of the partition list was entrusted to third defendant and copy alone was given to the husband of the plaintiff, the xerox copy of the partition list can be marked through P.W.6 as a secondary evidence. The lower Court had erred in not marking the said document as secondary evidence as being in admissible in evidence. The learned Subordinate Judge committed a serious error in passing the impugned order, rejecting the request of the petitioner herein. Whether the partition list is a genuine or not is a different matter, but the same is admissible in evidence. The learned Subordinate Judge would examine and decide the genuineness of the same on the basis of the evidence let in by both parties. I am satisfied that the petitioner has made out grounds for introducing secondary evidence, namely xerox copy of the partition list. The court below ought not to have rejected the permission to the petitioner to mark the xerox copy of the said partition list as an exhibit on the side of the petitioner."
12. In the instant case also, the plaintiff has taken a specific stand in the plaint that the said partition was effected and the same was reduced into writing by way of partition deed and the same has been denied by the defendants. In view of the above guiding principle laid down by this Court in the above referred Judgment, I have to necessarily hold that no notice is necessary in this case to admit the document as a secondary evidence. Thus, on the ground of failure to give notice alone, the Court cannot refuse to admit the same in evidence if it is otherwise admissible in evidence.
13. The third contention of the learned counsel for the petitioners would be that, a close scrutiny of the recitals of the document would show that it is not a partition deed but it is only a family arrangement and therefore, it does not require stamp or registration. So for want stamp and registration, the document should not be refused to be admitted in evidence. In support of his contention, he has relied on the Judgment of the Hon'ble Supreme Court reported in AIR 1960 Supreme Court 953 (V 47 C 169) (Md.Kamgarh Shah Vs. Jagdish Chandra), wherein in paragraph 13 the Hon'ble Supreme Court has held as follows:-
"13..........The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense."
14. Keeping this guidance in mind, if the document in question is viewed, I have no hesitation to hold that it is certainly a partition deed requiring stamp and also registration. For such conclusion the reasons are as follows:-
As per the above Judgment of the Hon'ble Supreme Court, one of the ways to gather the real intention of the parties to a document would be from the words employed in their strict grammatical sense. In the document in question, it has been described only as a partition deed. Further, a reading of the entire document would show that partition takes place only by virtue of this document and it is not as if partition had already taken place and this document was executed subsequently to evidence the same. In paragraph 5 of the plaint, the petitioners have stated that "an unregistered partition deed dated 04.12.1998, was entered into between Govindaraju Pillai and his sons and daughters and a xerox copy of the same is filed herein as a document No.2''. In paragraph No.9 of the plaint, it is stated that "the plaintiffs herein are confining their right to claim partition only in respect of the suit property as per the recitals of the partition deed dated 04.12.1998." In paragraph 3 of the affidavit filed in support of I.A.173 of 2005, also the fourth petitioner has stated that "a partition was entered into and that has been reduced into writing, signed by all the parties, but the first defendant had retained the original with him." In the petition also the document has been described as "partition deed entered into between Govindaraju Pillai and others". So the intention of the parties can be gathered from the description made by themselves in the plaint as well as in the affidavit filed in support of the application that they have treated the same only as a partition deed. Apart from this, a reading of the recitals of the document would clearly show that the document alone divides the properties. For all these reasons, necessarily I have to hold that this is not a family arrangement as contended by the learned counsel for the petitioners but, it is only a partition deed requiring stamp and registration. Therefore, the original document itself is not admissible in evidence for want of stamp and registration and consequently, the present document being a xerox copy of the same is also not admissible in evidence.
15. The next contention of the learned counsel for the petitioners would be that this document, though not registered and though not sufficiently stamped, could be used for collateral purposes. For this proposition, he has relied on the Judgment of Hon'ble Supreme Court reported in 1976 (3) SCC 119 (Kale and others Vs. Deputy Director of Consolidation and others), wherein it has been held as follows in paragraph 44:-
"44. ...... The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement."
16. A careful reading of the Judgment of the Supreme Court would show that the document requiring registration, if remains unregistered, can be used for collateral purpose. But, in the case on hand, the deed is not only unregistered but also not stamped sufficiently. Now the moot question is whether such an unregistered and unstamped deed can be used for collateral purposes.
17. In this regard, the learned counsel for the respondents would rely on the Judgment of a Division Bench of this Court reported in 2001 (1) M.L.J. 1 (A.C.Lakshmipathy and another Vs. A.M.Chakrapani Reddiar and others) wherein paragraph No.42 held as follows:-
"42. To sum up the legal position:
(I) A family arrangement can be made orally (II) if made orally, there being no document, no question of registration arises, (III) 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 the Indian stamp Act and Indian Registration Act;
(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V) However, a document in the nature of a memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person can not claim a right or title, to a property under the said document, which is being looked into only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Sec.35 of the Indian Stamp Act."
18. In Clause VII, it has been clearly held by the Division Bench that, if the family arrangement is stamped but not registered, it can be looked into for collateral purposes. But at the same time, in clause IX, the Division Bench has held that "A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar under Section 35 of the Indian Stamp Act."
19. The Judgment of the Hon'ble Supreme Court reported in 1976 (3) SCC (cited supra) relied on by the learned counsel deals only with a document which is not registered whereas, clause IX of the Judgment of the Division Bench of this Court deals with a document which not only unregistered but also not stamped. Therefore, as per the Judgment of the Hon'ble Supreme Court and as per the Judgment of the Division Bench of this Court, a family arrangement which is stamped but not registered can be looked into for collateral purpose and if the family arrangement is neither stamped nor registered it cannot be looked into for collateral purposes and on that score the same cannot be admitted into evidence.
20. Lastly, the learned counsel for the petitioners has contended that the document could be at least admitted into evidence to apply the Rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In this case, it is purely a question of fact whether such a document was at all executed by the parties and whether the document was acted upon and whether the defendants were keeping their mouth shut about the document without raising any objection for many years. Therefore, applying the principle laid down by the Hon'ble Supreme Court in paragraph No.44 of the Judgment reported in 1976 (3) SCC 119, this Court has to necessarily hold that the document in question can be admitted into evidence for the limited purpose applying the rule of estoppel provided other conditions required for applying the said rule such as proof of execution of document, free consent etc., are proved by plaintiff during the course of trial.
21. To sum up, the conclusions are:-
(i) Admissibility of the xerox copy of the alleged deed said to have been executed by the parties cannot be negatived on the ground that it is only a xerox copy, as this document falls within the ambit of Section 63(2) of the Evidence Act to be called as "secondary evidence".
(ii) to prove the said document in evidence, the requirement of Section 65 should be complied with. In this case, there is no purpose in giving notice to the defendants to produce the original document said to be in their position in view of the fact that the very execution of the document is denied by the defendants. Therefore, on this ground alone the admissibility of the document cannot be negatived.
(iii) The document in question in the instant case, should be construed to be a partition deed requiring registration and stamp. In view of Section 35 of the Stamp Act, this document is clearly inadmissible in evidence.
(iv) It cannot be used for any collateral purpose also since it has been neither registered nor sufficiently stamped.
(v) However, this document can be admitted in evidence for the only limited purpose of applying the rule of estoppel provided the other conditions required for applying the said rule are satisfied by the petitioners during the course of trial.
(vi) The genuineness or otherwise of the document cannot be decided at this stage and that question is left open to be decided by the trial Court on evidence during the trial.
(vii) In conclusion, the order of the lower Court is set aside and the lower Court is directed to admit the document only for the limited purpose of using the same to apply the rule of estoppel provided the other conditions required to apply the said rule are proved by the petitioners during the course of the trial and it is made clear that this document cannot be used for any other purpose other than for the purpose for applying the above said rule of estoppel as indicated above.
22. In the result, the civil revision petition is allowed. However, there is no order as to costs. Consequently, connected M.P is closed.
To I Additional District Judge, (P.C.R) Tiruchirappalli.