Madras High Court
L.V.Velusamy vs L.V.Palanisamy (Died) on 2 April, 2025
CRP. PD. No.2991 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 10.06.2025 Pronounced on:19.06.2025
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
CRP. PD. No. 2991 of 2019
and CMP. No.19293 of 2019
L.V.Velusamy
Petitioner(s)
Vs
1.L.V.Palanisamy (Died)
2.P.Sampoornam
3.V.Srikanth
4.Dhanabakiam
5.Vasu @ Viswanathan
6.S.Ravichandran
7.Chitra
8.Manjula
9.Kamalaveni
10.Saratha
11.Sruthi
(R7 to R11 are brought on record
as LRs of the deceased R1 vide order
dated 02.04.2025)
Respondent(s)
PRAYER: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decretal orders dated
02.08.2019 made in I.A. No.696 of 2016 in O.S. No.335 of 2014 on the
file of the Principal Subordinate Judge, Erode.
For Petitioners : Mr.Arun Anbumani for
Mr.M.Guruprasad
For Respondents : Mr.R.Sripriya for R3
Mr.S.Kaithaimalai Kumaran for R2
No Appearance for R4 to R6
Not Ready in notice for R7 to R11
**********
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CRP. PD. No.2991 of 2019
ORDER
The plaintiff in OS.No.335 of 2014, aggrieved by the dismissal of his IA.No.696 of 2016 seeking to reject Exhibit B1 is before this Court under Article 227 of the Constitution of India.
2. I have heard Mr.Arun Anbumani for Mr.M.Guru Prasad, learned counsel for the petitioner, Mrs.R.Sripriya learned counsel for the 3rd respondent and Mr.S. Kaithai Malai Kumaran learned counsel for 2nd respondent. The learned counsel for the 2nd respondent has reported no instructions and since both the learned counsel for the petitioner and 3rd respondent in unison, stated that the other respondents may not be proper or necessary parties for disposal of this revision, I have proceeded to hear them.
3. Mr.Arun Anbumani would contend that Exhibit B1 is an unregistered partition deed which has also insufficiently stamped and even at the time of marking of the said Exhibit, the plaintiff has opposed the same. However, despite the objection of the plaintiff, the Court has proceeded to mark the unregistered and insufficiently stamped partition deed, constraining the plaintiff to take out the application to reject Exhibit B1. Mr.Arun Anbumani would invite my attention to the order 2/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 under challenge and contend that the reliance placed on Section 36 of the Stamp Act, 1899 by the Trial Court was wholly unwarranted to the facts of the present case, especially when even at the time of marking of the document, an objection was raised by the plaintiff.
4. The learned counsel Mr.Arun Anbumani would also take me through the contents of the unregistered partition deed Exhibit B1 and contend that the document did not even confirm any past arrangement, but the properties were only divided under the said unregistered partition deed. He would therefore submit that the document cannot be received in evidence and was clearly inadmissible.
5. The learned counsel would also rely on the decision of the Hon'ble Division Bench of our Court in Lakshmipathy A.C vs. A.M.Chakrapani Reddiar & others reported in 2001-1-LW 257, in support of his submissions.
6. Per contra, Mrs.R.Sripriya, learned counsel for the third respondent would take me through the plaint averments and point out to the pleadings in the plaint, referring to the very same partition deed. She would therefore contend that the said document can be certainly received 3/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 in evidence and atleast for collateral purposes, the document can always be looked into. She would therefore pray for dismissal of the revision petition.
7. I have considered the rival submissions advanced by the learned counsel on either side. I have also examined the unregistered partition deed which is marked as Exhibit B1.
8. The partition deed has been typed on Rs.10 non-judicial stamp paper. It is titled as Panchayat Partition Deed. It is dated 28.03.1997. Even in the opening paragraphs of the said partition deed, it is clearly mentioned that the parties are proposing a division by metes and bounds under the very same partition deed. That being the position, there can be no second opinion that the said document requires to be registered and also duly stamped. The only ground on which the Application taken out by the plaintiff to reject the said unregistered partition deed is that the document has already been marked and under Section 36 of the Stamp Act, there is a bar to reject the said document on the ground that it has not been duly stamped. Unfortunately, the Trial Court has lost sight of the case of the plaintiff in I.A.No.696 of 2016. The specific case of the plaintiff is that Exhibit B1 was not only duly stamped but also 4/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 unregistered. The respondents no doubt admitted to the fact that the said partition deed was neither registered nor duly stamped, however, it was their case before the Trial Court that the said document can be looked into for collateral purposes for ascertaining the nature and character of the scheduled property.
9. The Trial Court rightly referred to Section 35 of the Stamp Act and found the document to be inadmissible in evidence. Further the Court has proceeded to rely on Section 36 to dismiss the Application filed by the plaintiff seeking rejection of Exhibit B1. The Trial Court has also relied on the decision of the Hon'ble Supreme Court in Barium Chemicals Limited vs Vishwa Bharati Mining Corporation and another reported in 2009 (16) SCC 262, where the Hon'ble Supreme Court held that a document which is not duly stamped and unregistered, though required to be registered, can be admitted in evidence for collateral purposes under proviso to Section 49 of the Registration Act, provided proper stamp duty is paid as contemplated under Section 35 of the Stamp Act before the said document is admitted, in evidence. The Hon'ble Supreme Court has also relied on Section 36 regarding questioning of a document already admitted, at a later stage. 5/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019
10. At the outset, on perusing the partition deed Exhibit B1, I find that the same requires registration under Section 17 of the Registration Act, 1908 since the parties to the said document have divided the joint properties under the very same partition deed. The question that remains is as to whether the said unregistered partition deed requiring registration and also being deficiently stamped can be received in evidence and further as to whether, once received and marked as Exhibit, whether it can be rejected at later stage. Section 36 of the Stamp Act carves out an exception to Section 35. Section 35, 36 & 61 of the Indian Stamp Act as well as Section 17 of the Registration Act are extracted for easy reference:
“ 35. Instruments not duly stamped inadmissible in evidence, etc. — No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any such or by any public officer, unless such instrument is duly stamped :
Provided that—
(a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then 6/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court, when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.
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.” ...
61. Revision of certain decisions of Courts regarding the sufficiency of stamps. —(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie form, or references are made by, such first- mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
(2) If such Court, after such consideration, is of opinion that 7/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.
(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp-law which the Collector considers him to have committed in respect of such instrument:
Provided that. –– (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;
(b) except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 42.
Section 17 of Registration Act:
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, 8/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 1871, (VIII of 1871) or the Indian Registration Act, 1877, (III of 1871) or this Act came or comes into force, namely:—
(a) instruments of gift of immovable 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 immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
1 [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award where, 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 immovable property:] [(f) instruments of agreement relating to construction of building as referred to in clause (i) under Article 5 of Schedule I to the Indian Stamp Act, 1899 (Central Act II of 1899);
(g) instructions of agreement relating to sale of immovable property of the value of one hundred rupees and upwards;
(h) instruments of Power of Attorney relating to immovable property other than those executed outside India;
............”
11. A combined reading of the above extracted provisions indicates that under Section 36, but for the exception as provided in 9/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 Section 61, states that once an instrument has been admitted in evidence, then such admission of the instrument shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Even when a document has already been admitted in evidence, the Court to which an appeal lies, is empowered, on their own motion, or on the Application of the Collector, to ensure payment of necessary stamp duty and penalty.
12. In the facts of the present case, the document being marked as Exhibit B1 is not only challenged on the ground of improper stamp duty having been paid on the partition deed but also in view of the factum of the document being unregistered. Moreover, the facts of the present case are also quite peculiar. Even when the document was attempted to be marked before the Trial Court, the plaintiff diligently and in right earnest has objected to the marking of the said document, contending that it is inadmissible in evidence. However, the Trial Court has proceeded to mark the said document, subject to objections of the plaintiff.
13. The documents of such nature, where payment of stamp duty is involved or the factum of non-registration is put against the admissibility of the document, then the Trial Court ought not to have merely recorded 10/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 the objection of the plaintiff and proceeded to mark the document. The contentious issue had to be settled then and there. The trial court ought to have gone into the contents of the document and rendered a finding as to whether it was admissible or inadmissible in evidence and if it was inadmissible in evidence, ought to have found if still, it could be looked into for collateral purposes and if so whether any deficit stamp duty, together with penalty was necessary or not.
14. Unfortunately, the Trial Court has merely dismissed the Application on the sole ground that the document has already been marked and therefore, it cannot be subsequently rejected. Infact, the Trial Court has clearly fell in error in interpreting Section 36 of the Stamp Act as well. The Trial Court has held that Section 36 contemplates an unregistered deed that has been marked, though with objection, then the same cannot be questioned and the document cannot be rejected subsequently. Unfortunately, the language employed in Section 36 of the Stamp Act does not anywhere indicate that even when an objection is taken and a document is marked with objection, the Court cannot reject the document.
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15. At this juncture, I necessarily have to deal with the arguments of Mrs.Sripriya, learned counsel for the 3rd respondent. The learned counsel’s contention is that even the plaintiff has admitted the unregistered partition deed and therefore, no prejudice, much less serious prejudice will be caused to the plaintiff.
16. I have carefully gone through the plaint. Though the plaintiff has knowledge about the said unregistered partition deed, I do not find any admission on the said document. Infact, the relevant pleading with regards to this, is as follows;
“ The plaintiff submits that the defendant 1 & 2 have no manner of right to sell the suit property with specific boundaries as if though the first defendant was allotted an area in unregistered compromise partition deed dated 28.03.1997 entered into the plaintiff , the first defendant and late sengottain. The plaintiff submits that there was no compromise between the first defendant and other brother sengottain. The plaintiff further states that he has not signed any document styled as compromise partition deed regarding the suit property. The plaintiff and the defendants are still in common enjoyment of the suit property”.
17. Therefore, it is the categorical and specific case of the plaintiff that there was no such partition deed entered into between the parties and 12/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 a mere reference to the said partition deed which has been brought to his notice will not amount to an admission of the said document.
18. Be that as it may, as held by the Hon'ble Division Bench of this Court in Lakshmipathy A.C’ case, (referred herein supra), when a document is sought to be marked during evidence and an objection is raised on the ground that it is unregistered and unstamped, then such document cannot be looked into for any purpose, much less collateral purpose. The Hon'ble Division Bench further held that the expression collateral purpose is vague and the Court has to decide the question whether the parties seek to use the document for the purpose, whether it is really a collateral one or to establish title. It was further held that by simple devise of calling it “collateral purpose”, a party cannot use an unregistered document to indirectly bring about the effect. It was further held that even oral evidence cannot be let in about the contents of an unstamped and unregistered document.
19. Insofar as the reliance placed on the decision of the Hon'ble Supreme Court, the facts before the Apex Court were not similar to facts of the present case. The Hon'ble Supreme Court has not laid down the ratio or law that, even when there is an objection regarding admissibility 13/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 of a document and despite such objection, the document has been admitted in evidence, such document though requiring registration can be looked into for collateral purposes, provided that Section 35 of the Stamp Act subject to the rider in Section 36 being complied with.
20. As already discussed, in the present case even at the stage of marking the document, objection has been raised and the document has been marked subject to the objection of the plaintiff. The ratio laid down by the Hon'ble Division Bench of this Court would squarely apply to the facts of the present case. Neither the respondents have substantiated the case that the document can be used for collateral purposes nor the Trial Court has discussed or given any finding that the document despite being inadmissible can be looked into for collateral purposes. In fact, from a reading of the written statement, it is abundantly clear that the defendants have relied on the said partition deed claiming right, title and interest under it and therefore cannot be permitted to take shelter under the phrase 'collateral purpose' also. Therefore, the order of the Trial Court is perverse and is liable to be set aside.
21. In view of the above reasons, this Civil Revision Petition is allowed and the order in I.A.696 of 2016 in O.S. No.335 of 2014 dated 14/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 02.08.2019 is set aside and the unregistered partition deed marked as Exhibit B1 is rejected. Consequently, connected Miscellaneous Petition is closed. No order as to costs.
19.06.2025 rkp Index : Yes / No Internet : Yes / No 15/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm ) CRP. PD. No.2991 of 2019 P.B.BALAJI, J., rkp Pre-delivery order in CRP. PD. No. 2991 of 2019 and CMP. No.19293 of 2019 19.06.2025 16/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/06/2025 07:48:17 pm )