Madras High Court
Chinnammal vs Thangavel on 22 January, 2013
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.01.2013 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN CRP.(NPD).No.3651 of 2007 1.Chinnammal 2.Subbathal 3.Sakthivel 4.Dinesh .... Petitioners Vs. 1.Thangavel 2.T.Sathish Kumar .... Respondents Prayer : This civil revision petition is filed under Article 227 of the Constitution of India, against the fair and decretal Order dated 06.10.2007 and made in I.A.No.260 of 2007 in A.S.No.17 of 2007, on the file of the learned First Additional District Judge, Erode. For Petitioners : Mr.I.C.Vasudevan For Respondents : Mr.V.Bharathidasan O R D E R
This memorandum of civil revision is directed against the fair and decretal Order dated 06.10.2007 and made in I.A.No.260 of 2007 in A.S.No.17 of 2007, on the file of the learned First Additional District Judge, Erode.
2. The background facts:
2.1. The revision petitioners herein have filed the suit in O.S.No.183 of 2005, on the file of the learned Second Additional Subordinate Judge, Erode against the first respondent herein seeking the relief of partition and separate possession of the property and also permanent injunction restraining the respondents from encumbering the suit properties till the partition is effected.
2.2. The suit was decreed and therefore the respondents being the defendants have preferred an appeal in A.S.No.17 of 2007, on the file of the learned First Additional District Judge, Erode.
2.3. During the course of trial, a partition agreement dated 29.03.2005, which is said to have been executed between the first respondent and the revision petitioners, was marked as Ex.B1. Since the revision petitioners had denied their thumb impression and signatures found place in the above said document, the respondents had taken out an interlocutory application in I.A.No.250 of 2007 to send Ex.B1 the so called partition agreement to a Government finger print expert to examine the genuineness of the disputed thumb impression found place in the document and to compare the same with the admitted left hand thumb impression of the first revision petitioner Chinnammal. That application was dismissed and the order of dismissal was challenged by the respondents before this Court in C.R.P.(NPD).No.1517 of 2006.
2.4. After hearing both sides this Court has dismissed that revision petition on 07.11.2006.
2.5. In the meanwhile, a preliminary decree was passed in the suit in O.S.No.183 of 2005 by the Trial Court rejecting the document under Ex.B1 the alleged partition agreement on the ground of want of registration and proper stamp.
2.6. During the pendency of the appeal (A.S.No.17 of 2007), the respondents/appellants/defendants have preferred an interlocutory application in I.A.No.260 of 2007 to pass an Order for the payment of deficit stamp amount required to make up such duty together with a penalty of ten times of the amount of proper duty on Ex.B1. This was vehementally objected to by the revision petitioners/plaintiffs and they have also filed their counter affidavit.
2.7. After hearing both sides, that interlocutory application was allowed on 06.10.2007 by the learned First Additional District Judge, Erode, with a finding that the respondents/appellants/defendants could be permitted to pay adequate stamp duty and also penalty as per the law.
2.8. Challenging the legality of the Order dated 06.10.2007, the revision petitioners being the plaintiffs have approached this Court with the present memorandum of civil revision.
3. Heard Mr.I.C.Vasudevan, learned counsel appearing for the revision petitioners and Mr.V.Bharathidasan, learned counsel appearing for the respondents.
4. On perusal of the records, it is revealed that the learned Subordinate Judge, Erode while dismissing the application in I.A.No.25 of 2006 in O.S.No.183 of 2006 has found that the document under Ex.B1 could not be received in evidence for want of registration and payment of necessary stamp duty and therefore the controversy with regard to the question as to whether Ex.B1 contains the thumb impression of the first revision petitioner/first plaintiff or not has become pale into insignificance.
5. Paragraph Nos.8 and 9 of the Order of this Court dated 07.11.2006 and made in C.R.P.(NPD) No.1517 of 2006, reads as follows:
8. A perusal of Ex.B1 the alleged partition agreement deed dated 29.03.2005 shows that even though it is titled as an agreement, the recitals would show that it is a partition and division of the properties by metes and bounds with specific boundaries and survey numbers. The substance of Ex.B1 is that a partition by metes and bounds was made and the parties have agreed to register the same within another three months. At page 3 of Ex.B1 it is clearly recited that the mediators have partitioned the properties by metes and bounds with reference to good and bad soil and the parties have agreed for the same and had executed the partition agreement deed.
9.In the written statement of the defendants at para 9, they have relied upon Ex.B1 contending that the suit properties were already partitioned on 29.03.2005 as per Ex.B1. Therefore it cannot be held that there is any collateral purpose for which Ex.B1 is relied upon as contended by the learned counsel for the petitioner. Mere marking of a document in evidence will not automatically make it reliable in evidence unless the necessary basis and legal permissibility is established. The document Ex.B1 was marked in evidence only on that condition. Ex.B1 cannot be looked into for any purpose including collateral purpose for want of registration and required stamping and Ex.B1 cannot also be looked into and relied upon in evidence for want of registration and stamping.
6. Paragraph Nos.10 and 11 of the Order is also very much essential for the disposal of this revision and the same is extracted as under:
10.It is well settled law that unregistered deed of partition of family arrangement or memorandum of partition effected by specifying shares between parties and actual division by metes and bounds amounts for declaration and extinguishing of rights and therefore the document cannot be looked into for that purpose. An unregistered deed cannot be relied upon in evidence even for comparison of signatures without payment of the stamp duty or the penalty as provided by Section 35 of the Stamp Act.
11.If the petitioner seeks to rely upon the document in Ex.B1 only to establish the fact that there was an earlier partition on 29.03.2005, as per Ex.B1, which is not at all permissible in law, due to want of registration and payment of the necessary stamp duty.
7. Admittedly, the Order of this Court dated 07.11.2006 has not been challenged by the respondents and therefore it has become final and not only binds upon the parties to the suit but also binds upon the Trial Court as well as the First Appellate Court. Both the Courts below are expected and bound to act upon the Order of this Court dated 07.11.2006.
8. The respondents herein have fairly admitted in Paragraph No.3 of their affidavit, which is filed in support of the interlocutory application in I.A.No.260 of 2007 saying that:
3.....Hence, I filed an application for comparing the thumb impression and the signatures of the respondents with an Expert in I.A.No.250/2006 before the Second Additional Subordinate Judge of Erode. The said petition was dismissed by the said court and I preferred a revision before the High Court of Judicature at Madras in C.R.P.NPD.No.1517/2006. The said revision also went against me and thereby the oral partition pleaded by me was not supported by the document Ex.B1.
9. The observation made by this Court, in Paragraph No.11 of it's Order dated 07.11.2006 in C.R.P.(NPD) No.1517 of 2006, was brought to the notice of the learned Appellate Judge, whereby he was apprised that as per the observation made by this Court in Paragraph No.11, Ex.B1 was not at all permissible in law for want of registration and payment of necessary stamp duty. However, ignoring the specific Order of this Court, the learned First Appellate Judge had proceeded to allow the interlocutory application in I.A.No.260 of 2007 in A.S.No.17 of 2007 on 06.10.2007 with an observation that the petitioners (revision petitioners) could be permitted to pay adequate stamp duty and also penalty as per the law.
10. Besides this, in the operative paragraph, the learned First Additional District Judge, Erode has observed that:
The latest law laid down by the Honourable High Court, Madras has ruled that a document which is not registered, insufficiently stamped can be accepted by a court of law and the party relying upon that document should be directed to pay stamp duty......
11. Mr.I.C.Vasudevan, learned counsel appearing for the revision petitioners has submitted that the impugned Order dated 06.10.2007 and made in I.A.No.260 of 2007 in A.S.No.17 of 2007, passed by the learned First Additional District Judge, Erode seems to be in total violation of the Order of this Court dated 07.11.2006 and made in C.R.P.(NPD) No.1517 of 2006 and therefore he has urged this Court to set aside the impugned Order.
12. He has also argued that even in accordance with the observation made by the learned First Additional District Judge, Erode, the defect cannot be legally cured or rectified even in the appeal stage. It could not also be cured even after the payment of stamp duty penalty as the document could not be looked into for any purpose because the document required registration under Section 17 of the Registration Act.
13. As contemplated under Section 17 of the Registration Act, the document, which is neither stamped nor registered could not be received in evidence and that the defect, as observed by the learned First Additional District Judge, also could not be cured by paying penalty. Since the respondents had filed the application in I.A.No.260 of 2007 knowing fully well that Ex.B1 could not be received in evidence for want of registration and sufficient stamp, the petition itself ought to have been dismissed.
14. In support of his contention, Mr.I.C.Vasudevan has placed reliance upon the decision of this Court in Amudha and others vs. K.Jeyaraman and another, reported in 2005 (2) CTC 385. In this case, the document, which was sought to be received in evidence recited that the executant had received a sum of Rs.10,000/- in lieu of demand for partition of property and as such it constituted as release deed and therefore it had to be stamped in accordance with Section 35 of the Stamp Act. Such document also requires registration under Section 17 of the Registration Act. The document, which is neither stamped nor registered, cannot be received in evidence.
15. In an another decision in A.C.Lakshmipathy and other vs. A.M.Chakrapani Reddiar, reported in 2000 (2) TLNJ 315, the appellants/plaintiffs had filed the suit to declare that the properties described in Schedule-A to D are joint family properties available for general partition and to allot 1/3rd share in all such family properties and for other reliefs.
16. When the trial was commenced, the plaintiff was examined as P.W.1 and during the course of cross-examination, the learned counsel for the defendants wanted to mark the document described as memorandum recording partial partition of the family.
17. This was objected to by the learned counsel appearing for the appellant on the ground that it was an unregistered and unstamped document which was partly a partition deed and partly a settlement deed.
18. The learned single Judge of this Court came to the conclusion that the document in question being an unregistered partition deed could be admitted in evidence only for collateral purposes.
19. Being aggrieved by the finding of the learned single Judge of this Court, an appeal was preferred before the Division Bench of this Court.
20. The learned counsel appearing for the appellant had projected his arguments on the following, among other grounds:
The document in question is an unstamped and unregistered partition-cum-settlement deed and the same cannot be admitted in evidence and/or looked into for any purpose in view of the clear provisions in the Indian Stamp Act and the Indian Registration Act.
21. After hearing both sides and also on meticulous analysis of various judicial pronouncements, the Division Bench of this Court has observed that:
We hold that the document in question is being an unstamped and unregistered, the same cannot be looked into for any purpose. Similarly, oral evidence cannot be let in about the contents of the said document.
22. Mr.V.Bharathidasan, learned counsel appearing for the respondents has submitted that the respondents had admitted in their affidavit filed in support of the application in I.A.No.260 of 2007 that the revision in C.R.P.(NPD).No.1517 of 2006 went against them and in pursuant to the dismissal of the above said revision the oral partition pleaded by them was left unsupported.
23. He has also made reference to paragraph No.4 of the affidavit saying that as contemplated under the proviso (a) to Section 35 of the Indian Stamp Act (Act II of 1899) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable with a penalty.
24. He has also added that except Ex.B1, there was no other document to prove the oral partition that took place prior to 29.03.2005 and as such the document under Ex.B1 was the only document to support the oral partition and more over the entire document had to be read and not a single word to be taken for admitting the document into evidence.
25. In support of his contention, he has placed reliance upon the following decisions:
i. Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanapalle and another, reported in (2001) 4 SCC 197 : (2001) 2 MLJ 33 (SC);
ii. Chellammal vs. Meenakshi, reported in 2002-3-L.W.543;
iii. Bondar Singh and others vs. Nihal Singh and others, reported in 2004-1-L.W.706;
iv. Thilagavathy vs. Mohammed Rabeek, reported in 2007-1-L.W.806;
v. Jagadeesh vs. B.M.Billan, reported in 2007-2-L.W.1017;
vi. Sellamuthugounder vs. Marappagounder and others, reported in (2007) 1 MLJ 586;
vii. Dinakaran vs. Venkatesan and others, reported in 2007 (5) CTC 77;
viii.Ranganatha Giramani vs. Visalatchi and others, reported in (2007) 6 MLJ 1609;
ix. S.Raghunatha Gounder vs. Pattappa Gounder, reported in 2008 (2) CTC 345;
x. M.Periyakaruppan and another vs. Nachiyappan and another, reported in 2008-4-L.W.165; and xi. P.Narayanan vs. Kasi, reported in (2009) 3 MLJ 47.
26. Prior to the discussion on the decisions cited supra, it may be appropriate to extract the provisions of Sections 17 and 49 of the Registration Act, 1908.
27. Part-III of the Registration Act deals with registrable documents. It reads as follows:
"17.Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Indian Registration Act, 1871 (VIII of 1871), or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely:
(a) instruments of gift of immoveable property;
(b) other non-testamentary instruments which purport or operate to create, declare assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property."
28. In sofar as the instant case on hand is concerned, the document under Ex.B1, which is in question, comes under the amplitude of Clause (b) to Sub-section (1) of Section 17 of the Registration Act. Therefore, it is explicit under the provisions of Section 17 that compulsory registration is required.
29. Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads as follows:
"49.Effect of non-registration of documents required to be registered.- No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882 [IV of 1882)] to be registered shall-
(a) affect any immoveable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
PROVIDED THAT an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 (IV of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
30. As defined in Wharton's Law Lexicon, 160th Year of Publication, at Page No.326, the expression 'Collateral' means indirect, sideways, that which hangs by the side; applied in several ways, thus:-collateral assurance that which is made over and above the deed itself.
31. At Page No.327, it is defined that a collateral or incidental issue is one that is ancillary to a direct and substantive issue, the former is an auxiliary issue and the latter the principal issue. (Sajjadanashin Sayad M.D.B.E. EDR v. Musa Dadabhai Ummer, reported in (2000) 3 SCC 350)
32. But, in the given case on hand, Ex.B1 was not sought to be marked for collateral purpose, instead it was sought to be marked to substantiate the division of status in the property.
33. As held in Luhar Tulsidas Narsibhai vs. Vrajlal Lalji Vaghela, reported in AIR 2007 Guj. 77 at p.79, if a document which is compulsorily registrable is not registered in accordance with the law, then, the document would not be admissible because of the bar contained under Section 49 of the Registration Act.
34. As it appear from Paragraph No.25 of this Judgment, as nearly as eleven decisions have been referred to by the learned counsel appearing for the respondents to fortify his arguments.
35. In the first decision viz.,Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanapalle and another, reported in (2001) 4 SCC 197 : (2001) 2 MLJ 33 (SC), the Division Bench of the Apex Court headed by The Honourable MR.JUSTICE K.T.THOMAS has mainly dealt with Sections 47-A, 38, 40 and 33 of the Indian Stamp Act, 1899 (as inserted by A.P. Act 8 of 1998) and it is held that:
"The procedure prescribed in Section 47-A is not applicable when such instrument is presented before civil court. It comes into play only when insufficiently stamped instrument is presented for registration before the registering officer. It is also held that the court when it faced with such instrument has power under Section 38(1) read with Section 33 of the Stamp Act to admit the document in evidence upon payment of duty with penalty and to send an authenticated copy to the Collector along with the amount realised."
36. On careful perusal of the above cited decision, this Court finds that it is not made applicable to the instant case on hand.
37. In Chellammal vs. Meenakshi, reported in 2002-3-L.W.543, the learned single Judge of this Court has held that:
"It is well settled in law that when a document is tendered in evidence by either party and objection is raised against the same on the ground that the document is not duly stamped under Section 35 of the Indian Stamp Act or for want of registration as contemplated under Section 17 read with Section 49 of the Registration Act, 1908, it is obligatory on the part of the Court to apply its mind to the objections raised and to decide the objection in accordance with law. In other words, no document could be admitted on its face value irrespective of the fact whether it is duly stamped or otherwise; nor it could be rejected as inadmissible for the same reason or otherwise for want of registration automatically. However, the admissibility of the unregistered documents, even though they are not duly stamped, is not automatic, in view of Section 35 of the Indian Stamp Act, as rightly pointed out by Mr.V.Lakshminarayanan, learned counsel for the respondent. It is under such circumstances, an obligation is cast on the Court to apply its mind on the objections raised against the admissibility of the document duly stamped."
38. In Bondar Singh and others vs. Nihal Singh and others, reported in 2004-1-L.W.706, while speaking on behalf of the Division Bench, His Lordship Honourable MR.JUSTICE R.C.LAHOTI has held that:
"Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It is contended that the question of possession is a question of fact and the High Court while exercising power under Section 100 of the Code of Civil Procedure, had no jurisdiction to upset the findings on this question recorded by the lower appellate Court. An appeal under Section 100 C.P.C., can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 C.P.C. A High Court cannot shut its eyes to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to evidence on record and therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."
39. His Lordship has also held that:
"The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. 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."
40. With regard to the above decision, S.A.KADER, J., former Judge of this Court, has made a critic and it has been published in Journal Section in 2004-1-L.W. 49. The learned Judge has penned down as under:
" 'Even the good Homer nods' is a same which comes to our mind when we read the above judgment of the Supreme Court.
2.There in that case (-namely Bondar Singh & Ors. Vs. Nihal Singh & Ors. [(2003) 4 SCC 161 = 2004-1-L.W. 709] reported in this issue), the plaintiffs (Respondents before the Supreme Court) filed a suit presumably for an injunction claiming prescriptive title to the suit land by adverse possession for well over the statutory period of 12 years. The suit land originally belonged to one Fakir Chand, the predecessor-in-interest of the defendants (appellants before the Apex Court), and he sold the same to one Thola Singh, predecessor-in-interest of the plaintiffs by an unstamped and unregistered deed of sale dated 9/5/1931. The plaintiffs claimed undisputed possession and enjoyment of the suit land ever since the deed of sale dated 9/5/1931 and as the defendant chose to interfere with their possession, the plaintiffs filed the suit for an injunction on 15/4/1972. The plea of the defendants was one of denial simplicitor and they claimed to be in actual possession. The trial Court accepted the case of the plaintiffs and decreed the suit as prayed for, but on appeal, the Additional District Judge set aside the judgment and decree of the trial Court and dismissed the suit. The High Court of Madhya Pradesh allowed the Second Appeal filed by the plaintiffs and restored the judgment and decree of the trial Court. The matter came up before the Supreme Court by Special Leave."
41. The learned Judge, in paragraph No.4 of the Article, has further stated as under:
"What is disturbing is the following observation of the learned Judges of the Supreme Court about the unstamped and unregistered deed of sale dated 9/5/1931:
'Under the law, a sale deed is required to be properly stamped and registered before it can convey title to the vendees. 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. In the present case, the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land.
With due deference to Their Lordships of the Supreme Court, it is submitted that these observations of the learned Judges are not in accordance with the law laid down in Section 35 of the Indian Stamp Act.
His Lordship, with regard to Section 35 of the Indian Stamp Act says that:
"Sec.35 imposes a mandatory bar on the admissibility in evidence for any purpose of any instrument not duly stamped or on such an instrument being acted upon. The various provisos to Sec.35 regulate the admissibility of certain instruments on payment of the stamp duty or deficit stamp duty and penalty. The Section is clear and categorical; it admits of no exception; it matters little whether the purpose is main or collateral. If the Legislature had intended to allow unstamped or improperly stamped instruments to be admitted for collateral purposes, it would surely have said so, as in the case of any unregistered document affecting immovable property and required by the Indian Registration Act 1908 or the Transfer of Property Act 1882 to be registered which is made receivable in evidence for any collateral transaction not required to be effected by registered instrument under the proviso to Sec.49 of the Indian Registration Act. Indeed, in Ram Rattan V. Parma Nand [AIR (33) 1946 PC 51] Their Lordships of the Judicial Committee of the Privy Council have expounded the expression 'for any purpose' in Sec.35 of the Act in the following terms:-
'S.35, Indian Stamp Act, enacts that no instrument chargeable with duty shall be admitted in evidence for any purpose. Mr.Rewcastle as part of his argument for the respondent adopted the note on the words 'for any purpose' in S.35 contained in Edn.4, of Sir Dinshah Mulla's book on the Indian Stamp Act, 1899. He pointed out that the words 'for any purpose' first appeared in India in the Stamp Act of 1879, and in England in the Stamp Act of 1891, and that under the earlier Acts there were decisions in both countries that an unstamped document might be admitted in evidence for a collateral purpose, that is, to prove some matter other than the transaction recorded in the instrument, and he submitted that these cases applied even under the later Acts. Their Lordships do not take this view. A document admitted in proof of some collateral matter is admitted in evidence for that purpose, and the statute enacts that it shall not be admitted in evidence for any purpose. Their Lordships see no reason why the words 'for any purpose' in the Indian Act of 1879 should not be given their natural meaning and effect. Such words may well have been inserted by the Legislature in order to get rid of the difficulties surrounding the question of what amounted to a collateral purpose."
42. The learned Judge, in paragraph No.5 of the Article, has stated that:
"5.It is apposite to here and now refer to the provisions of Sec.36 of the Indian Stamp Act which have given rise to a large volume of conflicting decisions. The Section runs thus:-
'36.Admission of instrument where not to be questioned. - Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
43. In paragraph No.6 of the Article, the learned Judge, has stated that:
"6.Sec.36 is categorical in its terms that when an instrument has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceeding on the ground that the instrument had not been duly stamped. The expression 'at any stage of the suit or proceeding' has been interpreted to mean not only at any later stage of the suit or proceeding, but also in the court of First Appeal or Second Appeal or Revision. The admission in evidence of an improperly stamped instrument by the subordinate Court, however erroneous, untenable or unconscionable it may be, is rendered non-justiciable. In fact, Sec.36 confers a carte blanche on the Court to admit any improperly stamped instrument. The denial of judicial review thereof is violation of the fundamental principles of judicial procedure. Such an unlimited, uncontrolled, unfettered, unguided and unquestionable power conferred on the trial Court under Sec.36, may lead to capricious, perverse and colourable exercise of power. It may however be pointed out that the finality of such a decision on the admissibility of an stamped, insufficiently or improperly stamped document can be challenged under Articles 136, 226 and 227 of the Constitution. But it is doubtful how many people of our country could invoke these Constitutional remedies."
44. Therefore, S.A.Kader, J., has given a suggestion in paragraph No.8 as under:
"8.It may be pointed out that Sec.36 may safely be repealed or at least suitably amended making the admission of such improperly stamped instruments subject to judicial review by superior courts or authorities."
45. On coming to the instant case on hand, the learned single Judge of this Court, in C.R.P.(NPD) NO.1517 of 2006, at paragraph No.9, has expounded in proper term that:
"9......Ex.B1 cannot be looked into for any purpose including collateral purpose for want of registration and required stamping and Ex.B1 cannot also be looked into and relied upon in evidence for want of registration and stamping."
46. Further, in Paragraph No.10, the learned single Judge of this Court has observed that:
"10.It is well settled law that unregistered deed of partition of family arrangement or memorandum of partition effected by specifying shares between parties and actual division by metes and bounds amounts for declaration and extinguishing of rights and therefore the document cannot be looked into for that purpose. An unregistered deed cannot be relied upon in evidence even for comparison of signatures without payment of the stamp duty of the penalty as provided by Section 35 of the Stamp Act."
47. As observed by this Court, in the opening paragraphs of this Judgment, the Order dated 07.11.2006 and made in C.R.P.(NPD) No.1517 of 2006 has not been challenged by the respondents and allowed the same to become final.
48. When the Order of this Court itself has become final, the learned First Appellate Judge does not have any kind of jurisdiction to upset it.
49. On perusal of the impugned Order, this Court finds that the learned First Appellate Judge has been misguided and without proper application of mind and on purely misconception of facts as well as law he had proceed to pass the objectionable Order, which is liable to be set aside.
50. Accordingly, this civil revision petition is allowed and the fair and decretal Order dated 06.10.2007 and made in I.A.No.260 of 2007 in A.S.No.17 of 2007, on the file of the learned First Additional District Judge, Erode is set aside and the interlocutory application in I.A.No.260 of 2007 in A.S.No.17 of 2007 is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
22.01.2013
Index : Yes/No
Internet : Yes/No
krk
To:
The First Additional District Judge,
Erode.
T.MATHIVANAN, J.
krk
CRP.(NPD).No.3651 of 2007
22.01.2013