Madras High Court
Deivanai Ammal vs Kumarayee Ammal on 24 October, 2008
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24/10/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD).No.7 of 2008 and C.M.P.No.1 of 2008 Deivanai Ammal ... Petitioner Vs 1.Kumarayee Ammal 2.Panchavarnam 3.Sathuragiriyan ... Respondents Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 26.09.2007 in I.A.No.473 of 2007 in O.S.No.211 of 2000. !For Petitioner ... Mr.M.Kannan ^For Respondents... Mr.K.Vijayakumar For R.1 & R.3 ... No appearance ***** :ORDER
The petitioner is the defendant in O.S.No.211 of 2000 on the file of the District Munsif, Thirumangalam. The first and second respondents are the plaintiffs. They laid a suit for declaration and recovery of possession of the suit property. The suit is in part-heard stage.
2. It is stated that the plaintiff's side evidence was over and the matter is posted for the defendant's side evidence. At that time, the petitioner filed an application under Order 8, Rule 1 (3) C.P.C. praying the Court to receive and mark an un-registered sale deed dated 13.03.1991 in evidence for collateral purpose.
3. In the affidavit, they have alleged that the first respondent herein / plaintiff had already executed an un-registered sale deed on 13.03.1991 and thereby, alienated the suit property and this has to be marked for collateral purposes.
4. After considering the materials on record, the learned District Munsif has dismissed the application by observing that since the document is an unregistered one and not sufficiently stamped, it could not be looked into even for collateral purpose. Added further, it does not comply with Section 35(a) of the Indian Stamp Act. The disputed document is found written on three stamp papers to the value of Rs.250/-. It is stated that the sale deed dated 13.03.1991 allegedly executed by the first plaintiff in favour of the second defendant in which it is stated that the first plaintiff received a sum of Rs.4,500/- towards sale consideration and in lieu of which, she sold the property to the second defendant and delivered the possession also.
5. The learned counsel for the petitioner would submit that inasmuch as the second defendant had already parted with the property, she cannot claim recovery of possession now. It is the further contention that the fact of un- registered sale deed was already pleaded in the written statement and it was also put during the cross-examination of P.W.1, however, she has denied.
6. Learned counsel for the respondents / plaintiffs would vehemently contend that since the document has not been stamped properly and mainly due to lack of registration, it is not at all admissible in evidence and the usage of this document for any collateral purpose is unknown to law.
7. Learned counsel for the petitioner Mr.M.Kannan in support of his contention would garner support from the decisions of this Court as well as the Hon'ble Apex Court reported in 2004-1-L.W.706, Bondar Singh & Others Vs Nihal Singh, wherein the Apex Court has held that if an unregistered sale deed is admitted by the other side and the only defence set up against the document is that it is unstamped and unregistered and therefore, it cannot convey any title to the land in favour of the plaintiffs. Under law, the sale deed is required to be properly stamped and registered before it can convey to title to the vendee. However, the legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purpose.
8. Learned counsel for the petitioner also submits that in order to find out the nature of possession of the defendants in the suit property as well as the date from which they have been in possession, being the collateral purpose, the document can be received in evidence. While the principles laid down in the above said decision of the Apex Court is followed, it comes to light that the said decision deals only with the un-registered sale deed whose execution was admitted by the parties concerned. But, here the facts are otherwise.
9. Learned counsel for the petitioner also draws attention of this Court to a decision of this Court reported in 2005 (5) CTC 102, Gurusamy and others Vs. Santhanam, wherein the learned Judge of this Court while dealing with an identical matter before him has held that at the request made by the parties to the suit, before the Court below, the documents which are un-registered and suffering from stamp duty penalty, firstly, may be received in evidence subject to proof and relevancy and at a later point of time, the legal enforceability could be decided by the Court. The opinion of this Court as expressed is thus:-
"16.By going through the order of the trial Court, it is seen that the trial Court has deviated from the established norms and procedures, when a petition was filed to receive the documents belatedly. Generally, those documents are received subject to proof and relevancy and the admissibility of the documents in evidence should be decided at the time of marking the same as exhibits and at the time of examination of the witnesses, thereby making it as evidence. Till such time, generally, the Court is not expected to go through the admissibility of the document.(not barred), since the scope of the petition in this case is to condone the delay and to receive the documents. Mere producing the documents before the Court, whether it is registered or unregistered documents, may not amount to taking the same in evidence as understood in law, and there is further stage for the documents to take a shape of evidence, for relying, only at that stage, the admissibility on the basis of the stamp duty, registration, etc. has to be seen in detail. If the trial Court at that stage comes to the conclusion that the document is inadmissible (even marked) for want of registration, stamp duty, etc, can reject the same."
10. In Rethinasamy Vs. Amsavalli and another, reported in 2007-3- L.W.343, this Court has rendered a finding after referring and following some earlier decisions of this Court to the effect that the unregistered sale deed shall be accepted subject to the objections and the document may be useful to determine as to whether the defendant is in possession of the property.
11. In yet another case 2007-4-L.W.342, Dinakaran Vs. Venkatesan & 3 others, which is also a case pertaining to legal admissibility of an un- registered document. The relevant portion of the judgment is extracted below:-
"7.In 2003(3)MLJ 45 (Balakrishnan and 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 immoveable 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."
12. Considering the above said decision of the Apex Court and the consistent view of this Court that in a situation where the documents of the disputed nature, involving non-registeration and absence of stamp duty, are coming up before the Court, the Court shall admit them in evidence subject to proof and relevancy and then, to decide the matter at the time of hearing the case and to render the judgment as per the settled legal principles.
13. In such view of the matter, this Court is also of the view that the document assailed, namely, unregistered sale deed has to be received at this stage and the respondents are at liberty to object it at the time of marking through defendants and the Court below shall decide the legal enforceability of the document at the time of final hearing of the case.
14. With these observations, the civil revision is allowed and the Court below is directed to dispose of the case preferably within a period of two months from the date of receipt of a copy of this order. Consequently, connected M.P is closed.
ssm To The Principal District Munsif Court, Thirumangalam.