Madras High Court
V.Govindasamy vs V.Perumal on 6 August, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.08.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.3436 of 2011 and M.P.No.1 of 2011 V.Govindasamy .. Petitioner Vs. V.Perumal .. Respondent Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decreetal order dated 11.07.2011 made in I.A.No.548 of 2011 in O.S.No.284 of 2009 on the file of the District Munsif Court at Tambaram. For Petitioner : Mr.M.Rajasekhar For Respondent : Mr.V.Chandrakanthan O R D E R
The Civil Revision Petition is filed against the fair and decreetal order dated 11.07.2011 made in I.A.No.548 of 2011 in O.S.No.284 of 2009 on the file of the District Munsif Court at Tambaram.
2.The respondent herein as a plaintiff filed a suit for declaration that he is the sole absolute owner of the suit property and for possession and declaration that the sale deed dated 13.03.2009 executed by the first defendant in favour of the second defendant is null and void and not binding upon the plaintiff in respect of suit property and for other reliefs. At the time of filing suit, the plaintiff has marked the Koor Chit dated 11.02.2000. At the time of trial, the revision petitioner/first defendant has come forward with the application in I.A.No.548 of 2011 stating that the Koor Chit is not an admissible evidence and it cannot be marked as an exhibit. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition has been preferred by the first defendant/revision petitioner.
3.Learned counsel for the petitioner submitted that the Koor Chit itself is not an admissible evidence and it must be properly stamped and registered and it is conveyance under Section 2(10) of the Indian Stamp Act, so it requires registration. Since the Koor Chit is an unregistered document, it cannot be marked as an exhibit. But the trial Court has not considered the same and dismissed the application stating that the admissibility of unregistered document can be marked as a collateral purpose. It is further submitted that even the Koor Chit cannot be marked for collateral purpose. Hence, he prayed for allowing the revision petition. To substantiate his arguments, he relied upon the following judgments:
(i) 2013-3-L.W.-99 (D.Balachandran Proprietor of Balu Tex, Erode Taluk and District v. T.C.Shanmugam);
(ii)2007 (1) LW 806 (Thilagavathy v. Mohammed Rabeek);
(iii)(2003) 8 SCC 752 (R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another);
4.Resisting the same, learned counsel for the respondent/plaintiff submitted that at the time of marking of Koor Chit, the revision petitioner/first defendant did not raise any objection. Once he kept quite during marking, he cannot now turn down and file an application for rejecting the document stating that the document requires registration. It is further submitted that even unregistered document can be marked subject to objection and at the time of pronouncing judgment, the Court empowers to decide the matter as to whether the document is an admissible evidence? Hence, he prayed for dismissal of the revision petition. To substantiate his arguments, he relied upon the following judgments:
(i)2010(1) CTC 27 (Kalaivani @ Devasena and another v. J.Ramu and 8 others);
(ii)(2010) 4 MLJ 529 (SC) (S.Kaladevi v. V.R.Somasundaram and others);
(iii) 2000 (II) CTC 230 (M.K.Narayanan and 2 others v. The State of Tamil Nadu rep. by the Assistant Commissioner of Urban Land Tax Trichy and another);
(iv) 2008 (4) TLNJ 208 (Civil) (Radha Ammal (died) and her legal heirs v. Manthi Reddiar);
(v) 2000 (II) CTC 574 (Duraipandian v. Tamiljothi and 3 others);
(vi) 2012 (4) CTC 836 (Sankaran v. S.A.M.Amjad Ibrahim and others);
5.Considered the rival submissions made on both sides and perused the typed set of papers.
6.The respondent herein as a plaintiff filed a suit for the following reliefs:
(a) Declaring that the plaintiff is the sole absolute owner of the suit property and for possession;
(b) Declaring the sale deed dated 13.03.2009 executed by the first defendant in favour of the second defendant is null and void and not binding upon the plaintiff in respect of suit property.
(c ) Direct the defendants to pay the cost of the suit;
7.In the plaint itself, the plaintiff has stated that the first defendant is his elder brother and second defendant is the wife of the first defendant. The suit property along with the larger extent of eight cents had been encroached and developed by the plaintiff's father with the help of plaintiff and his brothers. The Special Tahsildar Assignment, Saidapet, has given three cents, free patta in the name of plaintiff's father out of 8 cents in plot No.80A and in Plot No.80B. During the life time of plaintiff's father, he executed a settlement deed in favour of the first defendant measuring 762 square feet out of eight cents vide document No.4546/1989 on the file of the Sub-Registrar Office, Tambaram. The plaintiff's father died on 08.01.1994. Thereafter, the plaintiff and his three brothers had partitioned their property along with settlement property by way of partitioned Koor Chit on 11.02.2000 at the consent of other brothers and sister. As per the Koor Chit, B Schedule property was allotted to the plaintiff and he is in possession and enjoyment of the same. Since the first defendant sold his property along with suit property by way of sale deed in favour of his wife/second defendant, the plaintiff has come forward with the suit for declaration of the sale deed, dated 13.03.2009, executed by the first defendant as null and void.
8.The first defendant filed the written statement stating that he is the absolute owner of the property and all the revenue records stand in his name. The plaintiff never resided either in the suit property or any other property encroached by his father at any point of time. So the Koor Chit is not an admissible evidence. At the time of trial, the plaintiff was examined as P.W.1 and the Koor Chit was marked as Ex.P3. It is true, at the time of marking Koor Chit, the first defendant has not raised any objection.
9.Now this Court has to decide whether the opposite party has not raised any objection at the time of marking document, it will take away his right to canvass the same? At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the revision petitioner:
(i) In (2003) 8 SCC 752 (R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another), wherein it was held that objection to admissibility of document can be raised at any time. In para-20, it is held as follows:
20.The learned counsel for the defendant-respondent has relied on Roman Catholic Mission Vs. State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court. In the above decision, it was held that admissibility of the document can be raised even at the time of appeal or revision. So the argument advanced by the learned counsel for the respondent that once the document has been marked without objection, the opposite party cannot raise objection subsequently, does not merit acceptance.
(ii)In 2007 (1) LW 806 (Thilagavathy v. Mohammed Rabeek), wherein it was held that the document has not been properly stamped as stipulated under Article 40(a) of the Indian Stamp Act, it has not been registered, hence it is not an admissible evidence. He relied upon para-6 to 8, which are extracted hereunder:
6.In AIR 1971 SC 1070 (Jupudi v. Pulavarthi) the Hon'ble Supreme Court held that in view of Sections 35 and 36, secondary evidence by way of oral evidence or copy of document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under the Evidence Act.
7.In 2001 (1) CTC 112 (AC.Lakshmipathy and Anr. v. A.M.Chakrapani Reddiar and others), a Division Bench of this Court held that unstamped documents if required to be stamped but not so stamped cannot be looked into for any purpose including collateral purpose.
8.However, the learned Counsel for the respondent relied on the judgment of the Apex Court reported in 2004 (I) LW. 706, Bondar Singh v. Nihal Singh wherein Their Lordships have held that "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." The learned Counsel also relied on the Division Bench of this Court reported in 2004 (3) MLJ 362 (Venugopal @ Alagarsamy and ors v. Bajanai Alagarsamy and anr) wherein this Court held that "though unregistered documents are inadmissible in evidence, they may be considered for collateral purpose'.
As per the above decision, unstamped documents if required to be stamped, but not so stamped cannot be looked into for any purpose including collateral purpose. 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 that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. But in the citation, it was held that it is the duty of the Court to call upon the party who wants to rely on those documents, to pay the stamp duty and penalty, and then on payment of stamp duty and penalty, admit the document in evidence, whether it is for collateral purpose or otherwise, which could be decided at the later stage as per the dictum of the Apex Court in Bipin Shantilal Panchal v. State of Gujarat and another reported in 2001 (3) SCC page 1.
(iii) In 2013-3-L.W.-99 (D.Balachandran Proprietor of Balu Tex, Erode Taluk and District v. T.C.Shanmugam), in para-10, it was held that relying upon a document, which is not duly stamped, though admitted in evidence is prohibited under Section 35. In para-11, it was held that the document need not be rejected on the ground that the period of lease expired much before the filing of the suit cannot be accepted. An unregistered document cannot be looked into any purpose except for collateral purpose. Para-7, 10 and 11 are extracted hereunder:
7.In Chilakuri Gangulappa v. Revenue Divisional Officer [(2001) 2 MLJ 33 (SC)], section 38 of the Stamp Act was incorporated and held as follows:-
In this context Sec.38 is to be looked into. It is clear from the first sub-section extracted above that the court has the power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance with such condition the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. Therefore, having regard to the law laid down by the Hon'ble Supreme Court in the judgment reported in (2003)8 SCC 752, the objection regarding the admissibility can be raised at any time and merely because a document was admitted in evidence, the other party is not deprived of his right to challenge the admissibility of the document at a later point of time stating that the document ought not to have been admitted in evidence having regard to the legal provisions and the document is inadmissible in evidence.
10.Further, a reading of section 35 also makes it clear that an instrument, which is not duly stamped shall not be acted upon. Under section 36 of the Stamp Act, admission of an instrument in evidence, 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. Therefore, under section 36 of the Stamp Act, once a document, which has not duly stamped, has been admitted in evidence without any objection, later the admissibility of that document cannot be challenged on the ground that it has not been duly stamped. But, section 36 does not lay down any prohibition that such document, which has not been duly stamped and admitted in evidence can be acted upon. Therefore, a combined reading of sections 35 and 36 of the Stamp Act, makes it clear that even though a document was admitted in evidence, which was not duly stamped, the admission cannot be questioned later by virtue of section 36 on the ground that the document was not duly stamped. But as per section 35, the Court shall not act upon that document, unless such document is duly stamped. Therefore, relying upon a document, which is not duly stamped, though admitted in evidence is prohibited under section 35. Further, as per the judgment reported in 2003(8)SCC 752, an objection that the document, which is sought to be proved is itself inadmissible in evidence can be raised at any stage of the case. Therefore, the Court below committed serious error in dismissing the petition filed by the petitioner.
11.Further, the reasoning of the Court below that the document need not be rejected on the ground that the period of lease expired much before the filing of the suit cannot be accepted and irrespective of the expiry of the period, an unregistered document cannot be looked into for any purpose, except for collateral purpose and a document, which is not duly stamped cannot be acted upon and the admissibility can also be challenged at any point of time. Hence, the order of the Court below is set aside and the revision is allowed. .. ..
10.Learned counsel for the respondent has relied upon the following decisions:
(i)In 2000 (II) CTC 230 (M.K.Narayanan and 2 others v. The State of Tamil Nadu rep. by the Assistant Commissioner of Urban Land Tax Trichy and another), wherein it was held that unregistered partition can be looked into for collateral purpose to find out whether there was division in status and whether each sharer has taken possession of property allotted to him. It is appropriate to extract para-9, which runs as follows:
9.It is clear that in our case the unregistered document dated 7.9.75 could be looked into for the purpose of finding out any division in status or not. This aspect has not been considered by both the authorities, hence both the imputed orders are liable to be quashed on these grounds. But the above decision is not applicable to the facts of the present case, because, it was held that unregistered document could be looked into for the purpose of finding out any division in status or not. In the case on hand, on the basis of Koor Chit only, the respondent/plaintiff claims title over the property and that the property was allotted. If the Koor Chit contains past transaction, it is an admissible in evidence. It need not be engrossed in proper stamps and required registration, but whereas under the koor chit only, property has been divided and shares have been allotted to the sharers, so it is necessary to engross in proper stamps and need registration. So the above decision is not applicable to the facts of the present case.
(ii) In 2000 (II) CTC 574 (Duraipandian v. Tamiljothi and 3 others), wherein it was held that unregistered memorandum of settlement is admissible in evidence even though unregistered. Reading of that document shows that it records only past transaction and decision has already been taken place on basis of Panchayat, that document does not require registration. It is appropriate to extract para-6, which runs as follows:
6. On the basis of the above legal position, let us consider the question as to whether the document sought to be marked requires registration or not. In the beginning of the document, the deed begins with an introduction that there was a panchayat and the father and son have already agreed for allotment of various properties and thereafter it says that ,th;fs; cld;gof;if vd;dbtd;why; @ and gives the list of properties taken by the fourth plaintiff and the revision petitioner. A reading of the document is very clear that it records only a past transaction and the division has already taken place on the basis of the panchayat, and no interest is created on the basis of the instrument. In the light of the above judgment, this Court ought to have considered the Koor Chit. In the case on hand, in pursuance of the Koor Chit, the plaintiff and his brothers divided the property and possession has been given. In such circumstances, I am of the view, above decision is not applicable to the facts of the present case. Koor Chit is not recording past division between the parties.
(iii) In 2008 (4) TLNJ 208 (Civil) (Radha Ammal (died) and her legal heirs v. Manthi Reddiar), in para-7, it was held that document can be marked subject to objection and then direct the parties to adduce argument on the admissibility at the time of final stage of arguments as per the dictum of the Apex Court laid down in Bipin Shantilal Panchal's case. Para-7 is extracted hereunder:
7. .. .. The law laid down by the Supreme Court in Bipin Shantilal Panchal's case ought to register strongly with the practitioners at the trial court and trial court judges. Times without number the trials are being held up on account of frivolous objections regarding the admissibility of documents. The easiest method of securing a quick course of the trial by the court is to see that whenever any objection is made on the admissibility of a document and it involves a complex question of law, the easiest option is to mark the document subject to objection and then direct the parties to adduce argument on the admissibility of the document at the time of final stage of arguments. This salutary principle which was a departure from the earlier position expressed by the Courts is meant as a necessary guideline in ensuring that the trials are never stopped by objection regarding the admissibility of documents. The Supreme Court itself had clearly spelt out that this only occasion when the admissibility of the document is to be immediately considered is when there involved the issue of payment of stamp duty.
(iv) In 2010(1) CTC 27 (Kalaivani @ Devasena and another v. J.Ramu and 8 others), wherein it was held that an opportunity must be given to mark the document by directing payment of deficit stamp duty along with penalty upto date. If penalty is not paid as stipulated, document to be impounded and sent to Collector for taking action under law. Para-24 and 25 are extracted hereunder:
24.A perusal of the document dated 31.3.1973 filed in the typed set of papers would make it very clear that it allotted properties and assets to J.Ramu Chettiar, Minor Vivekanandan and minor Krishnan. No where it discloses that there was a partition previously and the same was being by the Trial Court, it requires registration. This document being an unregistered one can be looked into for collateral purpose only. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.
25.Though the Trial Court has correctly held the legal position, it has not given an opportunity to the revision petitioners to pay the deficit stamp duty along with the penalty upto date. Therefore, I am inclined to interfere with the order of the Trial Court dated 13.4.2005 and consequently the same is set aside. But the above decision is not applicable to the facts of the present case. In the case on hand, it is not the case of the plaintiff that he is ready to impound the document. His argument is that after the death of his father, Koor Chit came into existence. As already discussed in the earlier paragraph that on the basis of the Koor Chit only, they divided the property and taken possession. So the above decision is not applicable to the facts of the present case.
(v) In (2010) 4 MLJ 529 (SC) (S.Kaladevi v. V.R.Somasundaram and others), in which, it was held that the document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. In para-11 and 12, it was held as follows:
11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.
12. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564 : (2009) 2 MLJ 526, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:-
"20......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it......"
This Court then culled out the following principles:-
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. There is no quarrel over the above proposition. In the above decision, the unregistered sale deed was tendered for being marked on 05.12.2007 and entire sale consideration has been received on 27.02.2006 itself. Since the party has been objected to execute sale deed, it could not be registered. On the basis of the unregistered sale deed, he is entitled for specific performance. But the above decision is not applicable to the facts of the present case.
(vi) In 2012 (4) CTC 836 (Sankaran v. S.A.M.Amjad Ibrahim and others), wherein it was held that at the time of marking document, he has no objection to mark the same, but the application to remove the document from the list of exhibits is dismissed, against which, revision has been filed. This Court has held that an opportunity must be given to opposite party and it is for the plaintiff to contest the validity and acceptance of those documents during trial. It is true, some unregistered document can be marked for collateral purpose. But Ex.P3 Koor Chit is not marked for collateral purpose and on the basis of the same only, plaintiff is claiming title over the property, it must be engrossed in proper stamps and it must be registered.
11.Now this Court has to decide whether the Koor Chit requires registration? According to the learned counsel for the respondent, with regard to past division, Koor Chit need not be registered and so it is an admissible evidence.
12.On perusal of para-4 of P.W.1's proof affidavit, it reveals that Koor Chit has been executed on 11.02.2000 and on that date itself, they took possession of the property. So it is appropriate to extract the above portion, which reads as follows:
4.vdJ je;ij ,we;jgpd; v';fsJ rnfhjuh; ee;jnfhghy; rnfhjhp jpUkjp/Uf;F kw;Wk; gj;kh Mfpnahh; j';fSf;F 8 brz;l; epyj;jpy; ghfk; ntz;lhk; vd tpl;Lf;bfhLj;jjhy; Kjy; gpujpthjp vdJ rnfhjuh; jpU/tp/jhnkhjud; ehd; kw;Wk; ,isa rnfhjuh; tp/rf;fughzp Mfpa ehy;tUk; 11/2/2000 md;W xU ghfg;gphptpid Th; rPl;L vGjpf;bfhz;L kidfis ehd;F ghfkhf gphpj;J Kjy; gpujpthjpf;F vd; je;ij vGjpf;bfhLj;j ed;bfhil Mtzj;jpy; fz;l kidiia mtuJ ghfkhf tiuglj;jpy; fhz;gpf;fg;gl;Ls;s tptug;go brhj;ij gphpj;Jf;bfhz;nlhk;/ ehd; Th; rPl;L tiuglj;jpy; fhz;gpf;fg;gl;Ls;s @gp@ bcol;a{y; brhj;ij 11/02/2000 md;nw ifg;gw;wp midj;J chpikfSld; kw;w ghf!;juh;fisg; nghy; Mz;L mDgtpj;J tUfpnwd;/ .. ..
13.On 13.07.2011, P.W.1 was recalled and he deposed that at the time of division, they were in possession and enjoyment of their respective portions. So it is appropriate to incorporate the specific portion in his examination, which reads as follows:
.. .. ghfj;ij gphpf;Fk;nghJ mtuJ ghfj;ij jdpj;jdpahf mDgtpj;J tUfpnwhk;/ xt;bthU ghfj;ija[k; ,uz;L gFjpfshf mDgtpj;J tUfpnwhk;/ vd; mz;zd; nfhtpe;jrhkp mtuJ kidtp mkph;jty;yp 289 rJuo moia kidtpapd; bgahpy; vGjp itj;J gl;lh th';fptpl;lhh;/ mjw;F Ml;nrgiz bjhptpj;J ,Uf;fpnwd;/ .. .. From the above extracts, it is seen that they are contradictory to each other. As per the averments in Ex.P3 Koor Chit itself, it was stated that except the property settled in favour of the first defendant, the other three brothers were divided the property. Since they want to obtain separate title over the property, they divided the property as three portions viz., A schedule property was alloted to Damodaran, B schedule property was allotted to Perumal/plaintiff and C schedule property was allotted to Chakrapani. So it reveals that on the basis of the Koor Chit, they divided the property and took possession. So the Koor Chit must be properly stamped and it need registration. Therefore, the argument advanced by the learned counsel for the respondent that to record the past division, Ex.P3 came into existence, does not merit acceptance.
13.Considering the aforestated circumstances, I am of the view, Koor Chit requires registration and it must be incorporated in a proper stamp paper. Once the document has been marked without any objection, the admissibility of the document can be decided at later stage as per the dictum of the Apex Court in Bipin Shantilal Panchal v. State of Gujarat and another reported in 2001 (3) SCC page 1, since the plaintiff has not sought for impounding of document for payment of stamp and penalty, Koor Chit is not an admissible evidence. Hence, the trial Court has committed an error in marking the document stating that it can be marked for collateral purpose. Furthermore, it is pertinent to note that Koor Chit was not marked as subject to objection and so it is inadmissible evidence and it has to be rejected and it is hereby rejected. Therefore, the order passed by the trial Court is liable to be set aside and it is hereby set aside.
14.In the result, the Civil Revision Petition is allowed, setting aside the order passed by the trial Court. This Court ordered to reject Ex.P3 Koor Chit. No costs. Consequently, connected Miscellaneous Petition is closed.
06.08.2014 Internet:Yes kj To The District Munsif Court at Tambaram.
R.MALA,J.
kj Pre-delivery order in C.R.P(PD).No.3436 of 2011 and M.P.No.1 of 2011 06.08.2014