Madras High Court
K.Srinivasaiah (Deceased) vs Page 1 Of 16 on 8 December, 2022
Author: S.S. Sundar
Bench: S.S. Sundar
A.S.No.493 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
A.S.No.493 of 2011
and
M.P.No.1 of 2011
1.K.Srinivasaiah (deceased)
2.K.Ramachandraiah
K.Narayanaswamy (deceased)
3.K.Venkatesaiah
4.K.Vijayakumar
5.K.Govindaraju
6.Saradamma
7.Sarojamma
8.K.Varalakshmi
9.Alumeluammal
10.S.Shilpa
11.S.Nandhini
12.S.Manjunatha ... Appellants
[Appellants 10 to 12 brought on record as LRs
of the deceased 1st appellant vide order of Court
dated 16.09.2019 made in C.M.P.No.1326 of 2018
in A.S.No.493 of 2011]
Vs.
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A.S.No.493 of 2011
1.Mangamma
2.Jayalakshmamma (deceased)
3.S.M.Chandraiah (died)
4.N.Krishnappa
5.P.Anuradha
6.P.V.Aruna
7.D.P.Vijayalakshmi
8.B.Muralikrishna
9.V.G.Panneerdas and Company
Represented by its Managing Partner
Mount Road,
Chennai.
10.Sadiq Basha
11.R.V.Achari
12.Gowrammal
13.Yamuna Bharathi
14.Ashish
15.Akshatha
16.K.Gopalsamy
17.H.Shailaja
18.H.Jyothi
19.H.Bharathi
20.H.Shalini
21.Sarjapura Badra Reddy Shobha
22.Sarjapura Chandraiah Shruthi
23.Sarjapura Chandraiah Atheeth ... Respondents
[Cause title accepted in respect of RR13 to 15
vide order of Court dated 01.11.2011 made in
M.P.No.2 of 2011 in A.S.SR.No.70343 of 2011]
[R17 to R20 brought on record as LRs of the deceased
R2 vide order of Court dated 16.09.2019 made in
C.M.P.No.922 of 2019 in A.S.No.493 of 2011]
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A.S.No.493 of 2011
[R21 to R23 brought on record as LRs of the deceased
R3 vide order of Court dated 28.09.2022 made in
C.M.P.No.16780 of 2022 in A.S.No.493 of 2011]
Prayer : Appeal Suit filed under Section 96 of Code of Civil Procedure
against the judgment and decree dated 31.03.2011 in O.S.No.15 of 2005 on
the file of the Additional District Court, Krishnagiri.
For Appellants : Mr.L.Kishore
for Mr.K.Sridhar
R1 to R3 : Died
For R4 to R8 &
R21 to R23 : Mr.R.Bharath Kumar
R9 to R16 : Given up
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.) Today, learned counsel appearing for the appellants requested for an adjournment, despite sufficient opportunity being afforded to the appellants on several occasions. It is seen that this Court, finding that there was no representation for the appellants on 06.12.2022, directed the Registry to post this appeal under the caption “for dismissal” on 07.12.2022. Even on Page 3 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 07.12.2022, there was no representation for the appellants and thereafter, the matter was directed to be listed today under the caption “for dismissal”. Though the matter appears in the list today under the caption “for dismissal”, the learned counsel appearing for the appellants is present before this Court, but seeks further adjournment without any reasonable cause. Mere inconvenience of a counsel is not a good reason for this Court to adjourn the matter on innumberable occasions. Learned counsel appearing for the respondents 4 to 8 and 21 to 23 is present before this Court. Notices sent to the respondents 17, 18 and 20 have returned unserved with an endorsement "refused" and the notice sent to the 19th respondent has also returned unserved with an endorsement "unclaimed". Therefore, this Court proceeded to examine the appeal on merits with available records.
2.The unsuccessful plaintiffs in the suit in O.S.No.15 of 2005 on the file of the Additional District Court, Krishnagiri, are the appellants in the above appeal. The 1st appellant died during the pendency of this appeal and appellants 10 to 12 were impleaded as legal heirs of the deceased 1 st appellant. The respondents 2 and 3 also died during the pendency of the Page 4 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 above appeal and respondents 17 to 20 and respondents 21 to 23 were brought on record as legal representatives of the deceased 2nd and 3rd respondents respectively.
3.The appellants filed the suit in O.S.No.3 of 1996 on the file of Sub- Court, Hosur and the suit was later transferred to the Additional District Court, Krishnagiri and numbered as O.S.No.15 of 2005. The suit was filed by the appellants for partition of their 63/64 shares in all the suit properties. The suit properties consist of three items. The 1 st and 2nd items are landed properties in Hosur and Chokkanathapuram Village. The 3 rd item is the land and residential house.
4.The plaintiffs and defendants 1 and 2 are legal heirs of one Mr.T.V.Krishnappa, who died in the year 1974 intestate. The plaintiffs 1 to 10 are the children of Late Mr.T.V.Krishnappa and 11th plaintiff is the 2 nd wife of Late Mr.T.V.Krishnappa. The 1st defendant is the first wife of Late Mr.T.V.Krishnappa and 2nd defendant is the daughter of 1st defendant. The relationship is not in dispute.
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5.The suit was contested by the defendants 1 and 2 mainly on the ground that a Will was executed by Krishnappa in favour of defendants 1 and 2 during his lifetime in respect of an extent of one Acre in S.No.108, ¾ Acre in S.No.86, one Acre in S.No.66, 3.5 Acres in S.No.44/1 in Chokkanathapuram Village and a tiled house. It is further stated that there was a partition in the family by a Partition Muchalika and it is the specific case of the defendants 1 and 2 that a few items in the suit properties, namely, Sl.Nos.3 and 4 in Item No.2 of the suit properties, viz., an extent of 0.01.5 Hectare in S.No.44/1B1 in Chokkanathapuram Village and another extent of 2.07.0 Hectares in S.No.44/1B2 in the same village, was allotted to defendants 1 and 2 and that, by virtue of the said Partition Muchalika, they became absolute owners of the properties. In the written statement, it is further stated that patta was granted on the basis of the said Partition Muchalika in favour of the respective parties and that defendants 1 and 2 have sold the properties in favour of defendants 3 to 8 under a registered sale deed dated 26.07.1995, which is marked as Ex.B4. On the basis of the sale deed, the defendants 3 to 8 also obtained patta. The Revenue documents Page 6 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 produced before the Court also establish the same. In the written statement, it is also alleged that the plaintiffs have also dealt with the properties that were alloted to them in the unregistered Partition Muchalika and therefore, it is contended that the plaintiffs are estopped from claiming right ignoring the document, namely the Partition Muchalika, which is also marked as Ex.B6.
6.Before the trial Court, the plaintiffs filed Exs.A1 to A21 and the 5 th plaintiff was examined as P.W.1 and apart from that, 3 other witnesses were also examined as P.W.2 to P.W.4. The 2 nd defendant was examined as D.W.1 and other witnesses were also examined as D.W.2 to D.W.4 to support the case of the defendants. The defendants marked Exs.B1 to B16.
7.The trial Court found that the document Ex.B6, though was not registered originally, was later impounded and deficit stamp duty was paid along with penalty under Section 35 of the Indian Stamp Act, 1899. Therefore, the trial Court considered the document Ex.B6 to hold that the parties have divided in status by virtue of partition. The trial Court found further that the defendants are in possession and enjoyment of the properties Page 7 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 allotted to them under Ex.B6 and that they have also enjoyed the property by cutting and selling eucalyptus trees grown in S.No.44/1B. The defendants 1 and 2 also pleaded that the plaintiffs are dealing with several other properties not covered under the Partition Deed (Ex.B6) and that they have sold their properties under document Ex.B2 proving in evidence that several properties were dealt with by plaintiffs. Under Exs.B1 and B2, the plaintiffs 1 to 7 have sold several other properties describing the properties as one originally belonging to Mr.T.V.Krishnappa and declaring that they are the absolute owners of the properties. On the basis of several documents and oral evidence, the trial Court disbelieved the case of the plaintiffs. The defendants 1 and 2 or the purchasers, namely defendants 3 to 8, do not claim any right in respect of other properties except the two properties mentioned in Sl.Nos.3 and 4 of Item No.2 of the suit properties. Therefore, the trial Court did not grant any relief in favour of the plaintiffs on the ground that the purpose of the suit is to deprive the true owners their right to deal with the properties alloted to them under document Ex.B6 and that there is no cause of action for the suit.
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8.Aggrieved by the judgment and decree of the trial Court dismissing the suit in toto, the above appeal is preferred by the plaintiffs.
9.Having regard to the findings of the trial Court on all the issues, this Court may not interfere with the findings, as the learned Judge has considered every issue that was framed with reference to documents and pleading after proper appreciation of evidence on record. The question whether the document Ex.B6 can be admitted in evidence for collateral purpose has been raised by the appellants as a main legal ground. Section 49 of the Registration Act, 1908, stipulates that no unregistered document which is required to be registered under Section 17 or any provision under Transfer of Property Act, 1882, is admissible in evidence, however, a document which is an unregistered one can be received as evidence for collateral purpose not required to be effected by registered instrument.
10.As per Sections 35 and 38 of Indian Stamp Act, 1899, an Page 9 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 instrument which is neither registered nor stamped is not admissible in evidence even for proving collateral purpose. Sections 35, 38 and 42 read as follows :
“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 public officer, unless such instrument is duly stamped:
Provided that—
(a) any such instrument 6[shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any 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 Page 10 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 in evidence against him, then 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 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.
...
38. Instruments impounded how dealt with. — (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to Page 11 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector. ...
42. Endorsement of instruments on which duty has been paid under sections 35, 40 or 41— (1) When the duty and penalty (if any), leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them.
(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and Page 12 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011 shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:
Provided that—
(a) no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;
(b) nothing in this section shall affect 2the Code of Civil Procedure (XIV of 1882), section 144, clause 3.”
11.Therefore, as per Section 35(e) of the Act, a document which was insufficiently stamped is admissible in evidence in any Court when such instrument is impounded. Therefore, an instrument which was not admissible for want of registration or stamp duty can be admitted in evidence on payment of duty and penalty under Section 35 of the Act.
Therefore, this Court has no hesitation to hold that the document Ex.B6 is admissible in evidence for collateral purpose at least to prove enjoyment. Page 13 of 16 https://www.mhc.tn.gov.in/judis A.S.No.493 of 2011
12.Having regard to the pleadings and the evidence in this case, the fact established is that the Partition Muchalika (Ex.B6) has been acted upon and therefore, this Court has no reason to interfere with the findings of the trial Court, which are supported by reasons. For the purpose of division of status and enjoyment, the Partition Deed or Muchalika (Ex.B6) in the present case is admissible in evidence. The fact that the plaintiffs have dealt with the properties of their father is not disputed. Therefore, the appeal is being dragged on unnecessarily and this Court find no justification for granting further adjournment. Hence, this appeal is liable to be dismissed for non-prosecution.
13.Accordingly, this appeal is dismissed for non-prosecution. No costs. Consequently, connected miscellaneous petition is closed.
(S.S.S.R., J.) (A.A.N., J.)
08.12.2022
mkn
Internet : Yes
Index : Yes / No
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A.S.No.493 of 2011
To
1.The Additional District Judge,
Krishnagiri.
2.The Section Officer,
VR Section, High Court,
Chennai.
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A.S.No.493 of 2011
S.S. SUNDAR, J.
and
A.A.NAKKIRAN, J.
mkn
A.S.No.493 of 2011
08.12.2022
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