Andhra HC (Pre-Telangana)
Moduraboina Deepika D/O ... vs Counsel For The on 28 February, 2017
Author: P.Naveen Rao
Bench: P.Naveen Rao
THE HONBLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO. 388 OF 2017
28-2-2017
Moduraboina Deepika D/o Venkateshwarlu R/o H NO. 2-7-1364, Vijayapal colony,
Wadepally, Hanamakonda, Warangal Petitioner
Vs.
Kuna Sujatha Devi W/o Ganapathi Rao R/o H NO. 6-2-8, Kakaji colony, Hanamakonda
Warangal and another . Respondents
Counsel for the petitioner: Sri J Venkateshwar Reddy
Counsel for the Respondent No.2 :Sri Ramakrishna
<Gist :
>Head Note:
?Cases referred:
2003 (2) ALD 638
2016 (1) L.S. 26 (SC)
2002 (4) ALD 859
2003 (3) LS 154
HONOURABLE SRI JUSTICE P. NAVEEN RAO
CIVIL REVISION PETITION No. 388 OF 2017
ORAL ORDER:
Heard learned counsel for petitioner Sri J Venkateswara Reddy and learned counsel for second respondent Sri M Rama Krishna.
2. Petitioner (plaintiff) instituted O.S No. 924 of 2012 on the file of I Additional Senior Civil Judge at Warangal praying to grant declaration of title and delivery of possession. At the stage of defendants evidence, defendants sought to mark document dated 17.10.1985 (Ex.B9) and document dated 7.12.1992 ( no document number is shown) which is a map disclosing share of the property. Plaintiff raised objection on admissibility of those two documents. It was contended that said documents are not properly stamped and cannot be admitted in evidence even for collateral purpose as per Section 49 of the Registration Act.
3. On the contrary, the defendants contended that document dated 17.10.1985 is only an agreement executed on the same day of registered sale deed indicating respective shares in the property purchased by them and that it need not compulsorily be registered. It was further contended that document dated 7.12.1992 is only a map disclosing share of the property.
4. The Court below over ruled the objection of petitioner against both documents. The Court below held that no new rights are created or extinguished under document dated 17.10.1985 and it should be taken as an agreement apportioning the share of property already purchased under registered sale deed document No. 2132/1985 dated 17.10.1985 and it can be received in evidence after it is impounded as per provisions of Section 35 of Indian Stamp Act. On document dated 7.12.1992, the Court below held that said document is only a map disclosing the share of property of plaintiff and it is not liable for stamp duty and does not require registration.
5. Aggrieved by the said order, plaintiff preferred this revision. 6.1 Learned counsel for petitioner Sri Venkateshwar Reddy contended that documents dated 17.10.1985 and 7.12.1992 are unregistered documents and cannot be admitted in evidence. Both documents reflect partition of suit schedule property. A deed of partition is compulsorily registerable under Section 17 (1)(b) of Indian Registration Act, 1908 and unregistered documents are not admissible in evidence. Document dated 17.10.1985 is an agreement and as on the date of its execution plaintiff was minor and the said document is void. 6.2. It is contended that both documents are not admissible in evidence even for collateral purposes as they are not registered. 6.3. Sri Venkateswar Reddy contended that Court below grossly erred in not appreciating that in both documents what is shown is apportionment of respective shares and therefore are partition deeds. 6.4. In support of his contentions, he placed reliance on decision of this Court in RACHAKONDA RAMAKOTESHWARA RAO Vs MANOHAR FUEL CENTRE and decision of Supreme Court in YELLUPU UMA MAHESHWARI Vs BUDDA JAGADHEESWARA RAO .
7.1. Sri M Rama Krishna, learned counsel appearing for second respondent, contended that the suit schedule property is part of property jointly purchased by plaintiff and defendants. As the sale deed did not reflect respective shares, on the same day, they have written down on a stamp paper the respective shares on the property purchased and the same is also reflected in the map. He therefore submitted that both documents are not required to be registered and are admissible in evidence.
7.2. He would further submit that at any rate these documents can be relied on for collateral purposes to establish that there was an understanding on respective extents of property purchased by them and therefore the Court below has rightly over ruled the objection. 7.3. Learned counsel for respondent placed reliance on the decision of this Court in NALAMURU NADIPI SUBBANNA Vs KATARU CHENNAMMA and PUDI BALRAJU Vs JALLU ANNAPOORNA .
8. It is not in dispute that the sale deed dated 17.10.1985 does not deal with respective shares and it was jointly purchased by three persons. It is not in dispute that the agreement dated 17.10.1985 seek to apportion the respective shares and document dated 7.12.1992 is a map showing demarcation of the land falling to the share of three persons as per agreement dated 17.10.1985. Plaintiff claims larger extent of land than what is mentioned in the said agreement and contended that the suit schedule land has fallen to her share in an oral partition. Defendants oppose said claim by relying on these two documents. It is also to be noted that plaintiff was a minor when said agreement was entered into and was signed by her mother.
9. Section 17 (1) (b) of Registration Act mandates that a non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest should be compulsorily registered. Section 49 of the Registration Act imposes fetters on admissibility of a document having above characteristics, as evidence. However, proviso appended to Section 49 holds that such document can be received as evidence for collateral purposes, even if it is not registered. Section 35 of the Indian Stamps Act prescribes that instruments not duly stamped are inadmissible in evidence.
10. It is relevant to note that as sale deed does not prescribe respective shares, it is deemed that all three purchases are equal owners to the property purchased. A bare perusal of document dated 17.10.1985 ( Ex.B-9), it is clear that it limits respective shares of parties jointly purchased by a single sale deed. It also amounts to relinquishment of other portion of the joint property. 11.1. In RACHAKONDA RAMAKOTESHWARA RAO, the question was whether a document not duly stamped/ unstamped can be received in evidence even for a limited purpose. This Court answered the issue in the negative. This Court held:
3. A perusal of the said provision shows that once the document, which is chargeable with duty is not duly stamped, shall not be admitted in evidence. The bar engrafted under Section 35 of the Stamp Act is an absolute bar and, therefore, the document cannot be used for any purpose, unlike the bar contained in Section 49 of the Indian Registration Act (for brevity 'the Registration Act'). Under the proviso incorporated under Section 49 of the Registration Act, the document can be looked into even if it is not registered for collateral purpose or other purpose specified inter alia in the proviso. The learned Counsel appearing for the first respondent endeavours to make a distinction between the expression "as evidence" and the other expression "in evidence" and contends that although a document cannot be received as evidence, the same can be looked into for a collateral matter for the purpose of showing the signature, I am afraid, I cannot accede to the said contention of the learned Counsel appearing for the first respondent, having regard to the fact that it is an absolute bar engrafted under Section 35 of the Stamp Act.
Without receiving the document in evidence, it cannot be used even for the limited purpose. For admitting the document in evidence, it is got to be duly stamped although the purpose might be a different one. Therefore, the document in the first instance shall have to be received or admitted in evidence. Even for that the bar contained under Section 35 of the Stamp Act operates.
4. The legal position on the point is no more res integra and is squarely covered by a Judgment of this Court in Sanjeeva Reddi v. Johanputra Reddi, MANU/AP/0060/1972 :
AIR1972AP373 . The expression "for any purpose" has been the subject-matter of consideration under the said judgment. It has been held as under:
"No part of a document (be it a single sentence, a word or a signature) which is chargeable with duty can be received in evidence, even if that document is sought to be admitted only for a collateral purpose."
All this will not have any significance once the requisite stamp duty and penalty payable in accordance with the Rules are paid.
11.2 In PUDI BALRAJU, the issue for consideration was whether unstamped and unregistered partition deed can be received into evidence and if so for what purpose?
11.3. In the said case also an objection was raised on admissibility of unregistered partition deed. Trial Court over-ruled the objection and held that the said document can be looked into for the limited purpose of establishing severance in status. This Court held:
8. In the instant case, the learned Judge having overruled the objections ordered the document in question to be received and marked in evidence for collateral purposes. The suit on hand is not a suit for partition and separate possession of any immovable properties. The suit is only for declaration of title and perpetual injunction. It is under those circumstances, the learned Judge came to the conclusion that the document dated 19-1-1985, though unregistered, for a limited collateral purpose to prove the division in status, taking of possession and the nature and character of the possession of the shares allotted since these being collateral purposes, can be received into evidence.
9. In the circumstances, I am of the considered opinion that the document dated 19-1-1985 has been rightly received into evidence for collateral purposes. The said document, however, cannot be uitlised to prove the stage of dividing the properties by metes and bounds. The documents can certainly be uitlised for the collateral purposes, viz., to prove the stage of effecting a division in status and the stage of parties taking possession of the properties allotted to them.
11.4 It is to be noted that there was no dispute on such agreement.
12. In YELLUPU UMA MAHESHWARI, the very issue was considered by the Supreme Court. In the said case of the two relevant documents, first one was a deed of memorandum evidencing earlier partition affected between the parties and second one was an agreement. Supreme Court held as under:
17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged Under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(i)(b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy v. Chinnappa Reddy Gari Vankat Reddy MANU/AP/0141/1969 : AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares.
In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the Appellants/Defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.
13. In view of the relevant provisions referred to above and the decisions cited, it is necessary to examine the case on hand. The facts relevant are, petitioner disputes entering into such agreement. It was signed by her mother and she was a minor. It was not registered nor sufficiently stamped. It in effect a deed of partition with meets and bounds and specifying the extent of land each of them would own, whereas sale deed did not specify the respective shares and prima facie all three are equal owners.
14. Having regard to the law laid down by Supreme Court in YELLUPU UMA MAHESHWARI, I am of considered opinion that both documents are not admissible in evidence and cannot be relied upon even for collateral purposes. Court below erred in admitting in evidence the agreement dated 17.10.1985 (Ex.B-9) and document dated 07.12.1992. The order under revision in O.S. No. 924 of 2012 dated 13.10.2016 is set aside. Civil Revision Petition is allowed. No costs. Having regard to the same, miscellaneous petitions, if any pending, are closed.
_________________ P NAVEEN RAO,J DATE:28-02-2017