Madras High Court
S.Lakshmanan vs S.Palani on 25 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A(MD)No.98 of 2008 and M.P(MD)No.1 of 2008 S.Lakshmanan ... Appellant/Appellant/ Defendant Vs. S.Palani ... Respondent/Respondent/ Plaintiff Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 31.08.2007 made in A.S.No.31 of 2007 on the file of the Principal District Judge, Madurai, in confirming the judgment and decree dated 01.08.2006 made in O.S.No.550 of 2003 on the file of the I Additional Subordinate Judge, Madurai. !For Appellant ... Mr.D.Malaichamy ^For Respondent ... Mr.R.Ganesan * * * * * :JUDGMENT
This second appeal is focussed by the defendant challenging the judgment and decree dated 31.08.2007 passed in A.S.No.31 of 2007 on the file of the Principal District Judge, Madurai, in confirming the judgment and decree dated 01.08.2006 passed in O.S.No.550 of 2003 on the file of the I Additional Subordinate Judge, Madurai.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. The long and short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
The plaintiff filed the suit for recovery of possession of the immovable property described in the schedule of the plaint, pleading that indubitably and indisputably, he is the owner of the suit property and that the defendant entered into possession of it under him under an usufructuary mortgage deed, which subsequently, understood to be an unregistered one and hence, the suit was instituted for the purpose of recovering the suit property from the defendant. Under the said transaction, the defendant paid a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) to the plaintiff with an understanding that the said amount should be returned to the defendant on his vacating the premises and that the plaintiff should not claim any rent for the period of the defendant's occupation of the suit property.
4. The defendant resisted the suit by filing the written statement setting out various grounds including the one that the defendant totally paid a sum of Rs.30,000/- (Rupees Thirty Thousand only) to the plaintiff. The pleas of oral agreement to sell and adverse possession, were invoked by him.
5. Whereupon the trial Court framed the relevant issues.
6. During trial, P.W.1 was examined and Exs.A.1 to A.6 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 and B.2 were marked on the side of the defendant.
7. Ultimately, the trial Court decreed the suit mandating that the plaintiff should deposit a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the defendant within a period of one month, whereupon the defendant shall hand over the vacant possession of the suit property to the plaintiff within two months thereafter.
8. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendant filed the appeal for nothing but to be dismissed by the first appellate Court.
9. Challenging and impugning the judgments and decrees of both the Courts below, the present second appeal has been focussed by the defendant on various grounds and also suggesting the following substantial questions of law:
"(a) Whether the Courts below are justified in relying on Ex.A3 which is an unregistered usufructory mortgage deed under the pretext of collateral purpose?
(b) Whether the Courts below are correct in relying on Ex.A3 to ascertain the nature of possession of the appellant ignoring the principle laid down by this Honourable Court in 1998-1-LW 507 relating to "collateral purpose"?
(c) Even assuming for a moment, Ex.A3 can be looked into for collateral purpose whether the Courts below are correct in relying on Ex.A3 in the absence of proper stamp duty since Ex.A3 is executed only on Rs.3/- Non-Judicial Stamp paper, contrary to Section 35 of the Indian Stamp Act which is illegal as held by this Honourable Court in 2007-1-MLJ 586?
(d) Whether the Courts below are correct in relying on Ex.A.3 as the same is not duly stamped as per Rule 6(2) of the Indian Stamp Rules namely the stamp paper is purchased not in the name of the parties but in the name of one Mani, which is impermissible as held in 2005-1-MLJ 105?
(e) Whether the suit itself is maintainable for recovery of possession on the basis of title when the possession was handed over pursuant to an unregistered usufructory mortgage under Ex.A.3, and also when the title of the respondent is not in dispute?
(f) Whether the Courts below are justified in granting relief of recovery of possession on the basis of the rule in AIR 1974 SC 689 which is based on oral mortgage whereas in the present case the relief is on the basis of written but unregistered usufructory mortgage?
(g) Whether the Courts below are right in permitting the respondent to offer of Rs.25,000/- due under Ex.A3 without a prayer in the plaint, on the principle of equity when the suit is based on title, where equity has no place?"
(extracted as such.)
10. My learned Predecessor framed the following substantial question of law:
"Whether the appellate Court is perverse on account of its finding with respect to Ex.A.3 an unregistered mortgage deed which was relied on by the plaintiff to get the relief in the suit and not for a collateral purpose?"
(extracted as such.)
11. The dictum laid down by the Honourable Apex Court in the following decisions:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1;
would be to the effect that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
12. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
13. Keeping in mind the aforesaid dictum and after hearing both sides, I was of the considered view that the following additional substantial questions of law should be framed:
"(i) Whether both the Courts below were justified in directing the plaintiff to deposit only a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) instead of Rs.30,000/- (Rupees Thirty Thousand only) in favour of the defendant, even though the said sum of Rs.25,000/- (Rupees Twenty Five Thousand only) was awarded based only on oral evidence?
(ii) Whether Ex.A.3 was improperly admitted in evidence without collecting deficit stamp duty and penalty, if so, what is the effect of it in deciding the lis? and what is the effect of Sections 35, 36 and 61 of the Indian Stamp Act relating to Ex.A.3?"
14. All the substantial questions of law are taken together for discussion as they are inter-linked and interwoven with one another.
15. The nub and essence of the arguments of the learned Counsel for the defendant could pithily and precisely, be set out thus:
(i) Ex.A.3 should not have been relied on for any purpose much less for collateral purpose as per Section 49 of the Registration Act, 1908. The unregistered and insufficiently stamped Ex.A.3, should not have been relied on for collateral purpose, so to say, to adjudge the nature of the possession of the defendant in the suit property.
(ii) Both the Courts below failed to take note of the purport of the order of this Court dated 05.01.2006 in C.R.P.(PD)No.4 of 2006. Despite arguments submitted against the admissibility of Ex.A.3, the lower Courts failed to render their judgments referring to it. The trial Court of its own accord applied equity on the basis of the oral submissions of the learned Counsel for the plaintiff, even though in the plaint, there is no whisper about the plaintiff's readiness to pay the amount borrowed from the defendant.
(iii) A bare suit for recovery of possession by no stretch of imagination, could legally be taken as tenable. If at all, the plaintiff had any remedy, he ought to have filed a regular suit for redemption, which he failed to do so.
Accordingly, the learned Counsel for the defendant would pray for setting aside the judgments and decrees of both the Courts below and for dismissing the suit.
16. Per contra, in a bid to shoot down and mince meat, pulverise and torpedo the contentions as put forth and set forth by the learned Counsel for the defendant, the learned Counsel for the plaintiff would pilot his arguments, the pith and marrow, the gist and kernel of it, would run thusly:
(i) Unarguably and unassailably, the plaintiff is the absolute owner of the suit property and the very fact also remains that the defendant pleaded adverse possession which would connote and denote, exemplify and expatiate that he impliedly admitted that the plaintiff is the owner of the suit property.
Wherefore, there is no necessity to pray for declaration of the plaintiff's title to the suit property. From the admitted factual position, the plaintiff was entitled to a decree for possession even de hors Ex.A.3.
(ii) At the time of exhibiting the document, Ex.A.3, there was no whisper as to its admissibility. In such a case, it is too late in the day on the part of the defendant to veer round having a volte face and impugn and challenge the legality and admissibility of Ex.A.3. At the time of final arguments, no submissions were made on the defendant's side challenging Ex.A.3. The learned Counsel for the plaintiff in all fairness at the time of arguments before the trial Court came forward with the submissions that his client would deposit the amount due payable by the plaintiff to the defendant; but for his act of straightforwardness and benevolence, the defendant might not be able to get any money much less the sum of Rs.25,000/- (Rupees Twenty Five Thousand only).
(iii) Once a document is marked despite it is insufficiently stamped, then as per Section 36 of the Indian Stamp Act, its admissibility cannot be challenged and to that effect, the Honourable Apex Court laid down the law clearly and pellucidly. Absolutely, there is no question of law much less a substantial question of law is involved in this second appeal. Accordingly, he would pray for the dismissal of this second appeal.
17. Both sides advanced voluminous arguments relating to Ex.A.3. It is, therefore, just and necessary to see as under what circumstances Ex.A.3 was marked. In the chief-examination affidavit of the plaintiff, Ex.A.3 was given the marking. It could be seen from the notes sheet of the trial Court that in commensurate with the Exhibits markings in the chief-examination affidavit, the trial Court gave markings for those documents. P.W.1 was cross-examined and even at that time, there is nothing to indicate that Ex.A.3 was challenged specifically touching upon its in admissibility on the ground of insufficiency of stamp duty paid on it.
18. However, the learned Counsel for the defendant, inviting the attention of this Court to the order dated 05.01.2006 in C.R.P.(PD)No.4 of 2006, would advance his argument that the defendant subsequently challenged the admissibility of Ex.A.3; whereupon the matter went up to the High Court at the instance of the defendant; thereat, this Court vide order dated 05.01.2006 in C.R.P.(PD)No.4 of 2006, mandated thus:
"Since it is the specific case of the revision petitioner, that, the document is classified as usufructuary mortgage, not even stamped, liberty is given to the revision petitioner/defendant to agitate the same viz., regarding the admissibility of the document, on the basis of non payment of stamp duty, non registration of the document, and the trial Court is directed to permit the revision petitioner/defendant to raise these objections, at the time of argument and the trial Court also shall consider the admissibility of Ex.A3, according to law, at the time of final disposal of the case."
(extracted as such.)
19. As such, the learned Counsel for the defendant would submit that both the Courts below should have given weightage to the aforesaid direction given by this Court, but they failed to do so.
20. A plain reading of Ex.A.3 would exemplify and indicate that it was found written on three sheets of paper, of which two sheets are embossed stamp papers of the value of Rs.2/- and Re.1/- each. Ex.A.3 is not found attested by two witnesses even though a deed of usufructuary mortgage should be attested by at least two witnesses. Ex.A.3 is an unregistered document, which falls foul of Section 17 of the Registration Act, 1908. A sum of Rs.25,000/- (Rupees Twenty Five Thousand only) is contemplated in that deed. As such, it is quite understandable that the scribing of it on the value of Rs.3/- Non Judicial stamps was far below the requirement. Hence, under that count, Ex.A.3 could be labelled and dubbed as an insufficiently stamped document.
21. Now, the core question arises for consideration is as to whether the said document can be used for collateral purpose to understand about the nature of the possession of the defendant in the suit property.
22. In this connection, both sides cited various decisions and therefore, it is just and necessary to refer to them in seriatum thusly:
(A) The learned Counsel for the defendant would rely on the following decisions:
(i) Govindan Nayar v. Ammed reported in AIR 1927 Madras 92. Certain excerpts from it, would run thus:
"Where the pleadings show that the defendant admits his position as mortgagee and the terms of the mortgage, it does not matter whether the document itself is admissible or not, and when the relation between the parties is that of mortgagor and mortgagee, a suit for redemption will lie, and even as an unregistered document it may be admissible to prove what the mortgagee was prescribing for."
(ii) Arumughachary Nadar v. Deivanaiammal reported in 1998-1- L.W.507.Certain excerpts from it, is extracted hereunder for ready reference:
"8. Even on merits, I do not think that the order of the Rent Controller is to be interfered with. The fact that the petitioner is in possession of the property is admitted. The case of the landlord is that his possession is that of a tenant. But the revision petitioner wants to disprove the same by relying on the document and to conclude that his possession is that of a mortgagee. Admittedly the document is not registered. It is a mortgage deed for Rs.40,000/- which is compulsorily registerable under Sec.17 of the Indian Registration Act. The document which is compulsorily registerable cannot be admitted in evidence for any purpose under Sec.40 of the Stamp Act. But there is a Proviso to that Section which enables to look into the document for any collateral purpose. Learned counsel for the petitioner submitted that even if the document is unregistered, he can mark the document for a collateral purpose, i.e., to prove his possession. Therefore, it is argued that the refusal to consider the document in that perspective by the Rent Controller is illegal. The Rent Controller has failed to exercise the jurisdiction vested in him, is the argument of the learned counsel.
9. I do not think that the submission of the petitioner's counsel could be accepted in this case. I have already said that the possession of the premises by the petitioner (tenant) is admitted. So, there is no necessity to prove possession. By virtue of this document, what the tenant wants is, to prove the character of his possession, whether his possession is that of a tenant or that of a mortgagee. If he wants to prove his possession as a mortgagee, then that cannot be treated as a collateral purpose, coming under the Proviso to Sec.49 of the Indian Registration Act."
(iii) Lakshmipathy, A.C. v. A.M.Chakrapani Reddiar & others reported in 2001 - 1 - L.W. 257.Certain excerpts from it, is reproduced as under:
"41. We hold that the document in question being an unstamped and unregistered, cannot be looked into for any purpose. Similarly, oral evidence cannot be let it about the contents of the said document.
42. To sum up the legal position.
I. A family arrangement can be made orally.
II. If made orally, there being no document, no question of registration arises.
III. If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
IV. Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
V. However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, need not be stamped or registered.
VI. Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. VII. If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
VIII. Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
IX. A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act."
(iv) K.B.Saha & Sons Pvt. Ltd., v. Development Consultant Ltd., reported in (2009) 2 MLJ 526 (SC). Certain excerpts from it, would run as under:
"17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose.In Haran Chandra Chakravarti v. Kaliprasanna Sarkar AIR 1932 Cal 83(2), it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease deed into evidence.
18. The High Court in the impugned judgment relied on a decision of the Allahabad High Court in the case of Ratan Lal and others v. Harisankar and others AIR 1980 Allahabad 180 to hold that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same was not a collateral purpose. In Ratan Lal and others v. Harisankar and others (supra), while discussing the meaning of the term "collateral purpose", the High Court had observed as follows:
"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose. ? but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished a right to immovable property. ? term 'collateral purpose' would not permit the party to establish any of these acts from the deed."
19. In the case of Bajaj Auto Ltd. v. Behari Lal Kohli AIR 1989 SC 1806:
(1989) 4 SCC 39, this Court observed that if a document is inadmissible for non-
registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. Again this Court in Rai Chand Jain v. Chandra Kanta Khosla AIR 1991 SC 747 reiterated the above and observed in para 10 as under:
" ? the lease deed, Ext. P-1 dated 19-5-1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the appellate authority to the effect that the said deed cannot be used for collateral purposes, namely, to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows: 'The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to the lessee for residential purposes only'. This clearly evinces that the property in question was let out to the tenant for his residence only...."
20. In the case of Rana Vidya Bhushan Singh v. Ratiram (1969) 1 UJ 86(SC), the following has been laid down:
"A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by MULLA in his INDIAN REGISTRATION ACT, 7th Edn., at p. 189:
'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 of 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.' "
21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
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."
(v) A.K.Chauhan v. V.K.Mishra reported in (2009) 3 MLJ 409 (SC). Certain excerpts from it, is extracted thusly:
"21. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
22. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parmananad, AIR 1946 PC 51:(1946) 1 MLJ 295 (PC) wherein it was held:
"That the words 'for any purpose' in Section 35 of the Stamp Act, should be given their natural meaning and effect and would include a collateral purpose [and that] an unstamped partition deed cannot be used to corroborate the oral evidence for the purposes of determining even the factum of partition as distinct from its terms."
The said decision has been followed in a large number of decisions by the said Court. In Bhaskarabhotla Padmanabhaiahn and others v. B. Lakshminarayana and others AIR 1962 A.P.132, it has been held:
"9. In this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in Ram Rattan v. Parma Nand Their Lordships of the Privy Council held that the words 'for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms."
It was furthermore held:
"10. In the result, I agree with the learned Munsif Magistrate that the document is 'an instrument of partition' under Section 2(15) of the Stamp Act and it is not admissible in evidence because it is not stamped. But, I further hold that if the document becomes duly stamped, then it would be admissible in evidence to prove the division in status but not the terms of the partition."
In Sanjeeva Reddi v. Johanputra Reddi AIR 1972 A.P.373, it has been held:
"9. While considering the scope of Section 35 of the Stamp Act we cannot bring in the effect of non-registration of a document under Section 49 of the Registration Act. Section 17 of the Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purpose, it would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in B. Rangaiah v. B. Rangaswamy, (1970) 2 Andh WR 181 which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document, one a settlement in favour of the fourth defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Section 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matter would not at all be chargeable under the Act as in the case before him."
In T. Bhaskar Rao v. T. Gabriel and others AIR 1981 A.P. 175, it has been held:
"5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence. Proviso (a) to Section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (a) to Section 35 are complied with. It follows that if the requirements of proviso (a) to Section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence."
It was further held:
"7. It is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act."
(B) The learned Counsel for the plaintiff would place reliance on the decision in Javer Chand v. Pukhraj Surana reported in AIR 1961 Supreme Court 1655. Certain excerpts from it, would run thus:
..... Section 36 is in these terms:
"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."
That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exts. P-1 and P-2 and bore the endorsement "admitted in evidence" under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction."
23. I would also like to refer to Sections 35, 36 and 61 of the Indian Stamp Act hereunder:
Section 35:
"35. Instrument 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 not being an instrument chargeable with a duty not exceeding twenty paise only or a mortgage of crop [Article 41(a) of Schedule(1)] chargeable under section 3 with a duty of fifty paise or a bill of exchange or promissory note, shall, subject to all just exceptions, 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 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 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 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 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."
* * * * * Section 36:
"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."
* * * * * Section 61:
"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, 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 from, 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 the opinion that 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."
24. A poring over of the aforesaid precedents and the above provisions of law, will leave no doubt in the mind of this Court that the Honourable Apex Court in Javer Chand v. Pukhraj Surana reported in AIR 1961 Supreme Court 1655, plainly and pellucidly highlighted and indicated that once an insufficiently stamped document is marked, without collecting the stamp duty as per Section 35 of the Indian Stamp Act, then Section 36 of the Act would come into operation and its admissibility on that ground cannot be challenged subsequently. However, the Honourable Apex Court recognised the powers of the appellate Court under Section 61 of the Act, which is extracted supra. The aforesaid dictum of the Honourable Apex Court was by the Honourable Four Judges and still it holds the field because no larger Bench of the Honourable Apex Court has so far not overruled it or disagreed with the said dictum as found delineated therein. Hence, I can with certainty point out that any other decision relied on by the learned Counsel for the defendant, cannot be pressed into service as against the said decision of the Four Judges' Bench of the Honourable Apex Court.
25. Here, glaringly and pellucidly, it is evident that Ex.A.3 was marked without any objection raised relating to the insufficiency of stamp on it; wherefore, as per the above cited decision of the Honourable Apex Court, the defendant cannot try to gain anything out of his plea. However, the duty of the High Court is to see as to whether as per Section 61 of the Indian Stamp Act, necessary steps could be taken to send the document to the Collector for collecting the appropriate stamp duty and penalty. Obviously and axiomatically, that could be resorted to and that is different matter which would not affect the adjudication and final disposal of the case which involves singularly singular circumstances, as highlighted supra.
26. The contention on the side of the defendant that the plaintiff ought to have filed a suit for redemption is neither here nor there. As per his own argument, Ex.A.3 cannot be equated with that of a deed of usufructuary mortgage, because it is not a registered document. A document which is not a registered one, cannot be relied on by anyone of the parties, in order to assert and enforce their rights under the said document. Section 49 of the Registration Act, is an exception to it and only for collateral purpose, that can be relied on. The learned Counsel for the defendant would submit that even for collateral purpose, the said document cannot be relied on. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that even if the document is insufficiently stamped and not a registered one, certainly, it could be on payment of stamp duty and penalty, relied on for collateral purpose so as to prove the nature of the possession and not to prove the terms and conditions embodied therein.
27. At this juncture, I would like to refer to the decision of the Honourable Apex Court in A.K.Chauhan v. V.K.Mishra reported in (2009) 3 MLJ 409 (SC), which would show that if a document is an unregistered and unstamped or insufficiently stamped one, after collecting necessary stamp duty and penalty as per Section 35 of the Indian Stamp Act, it could be pressed into service for collateral purpose.
28. As has been already highlighted by me supra that so far this case is concerned, singularly singular circumstances are involved that already Ex.A.3 was marked without any objection relating to insufficeny of stamp duty. As per the decision of the Honourable Apex Court in Javer Chand v. Pukhraj Surana reported in AIR 1961 Supreme Court 1655, now the defendant cannot try to gain by trying to attack Ex.A.3 by pointing out that it was insufficiently stamped, etc. As such, reliance placed by both the Courts below to adjudicate the nature of the possession of the defendant, cannot be found fault with.
29. There is also one other important as well as paramount feature which could be noticed here. Even for argument sake, if Ex.A.3 is excluded from the purview of consideration, the plaintiff has got a right of his own for recovery of the possession of the suit property from the defendant, because the defendant candidly and categorically admitted the title of the plaintiff over the suit property. As a sequalae, a title holder whose title is beyond challenge, can recover possession from the person in occupation. On that ground also, the prayer of the plaintiff for recovery of possession has to be allotted.
30. The plaintiff was directed to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) not based on Ex.A.3, but based on the plaintiff's own concession as well as the oral evidence available on record.
31. The contention of the defendant was that it is not merely a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) which he paid to the plaintiff, but he totally paid a sum of Rs.30,000/- (Rupees Thirty Thousand only).
32. I am at a loss to understand as to why the trial Court directed the plaintiff to pay only a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) and refrained from directing the plaintiff to pay the additional sum of Rs.5,000/- (Rupees Five Thousand only) also in favour of the defendant.
33. I could see no ratiocination on the part of the trial Court in refraining from directing the plaintiff to pay the said sum of Rs.5,000/- (Rupees Five Thousand only) also in favour of the defendant.
34. Hence, I am of the considered view that both the Courts below were justified in decreeing the suit directing the defendant to hand over the possession of the suit property to the plaintiff.
35. Accordingly, all the substantial questions of law are answered as under:
(a) The substantial question of law is answered to the effect that the appellate Court ought to have held that the trial Court should have collected deficit stamp duty and penalty as per Section 35 of the Indian Stamp Act.
(b) The additional substantial question of law No.(i) is answered to the effect that both the Courts below were not justified in directing the plaintiff to deposit only a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) instead of Rs.30,000/- (Rupees Thirty Thousand only) in favour of the defendant, even though the said sum of Rs.25,000/- (Rupees Twenty Five Thousand only) was awarded based only on oral evidence.
(c) The additional substantial question of law No.(ii) is decided to the effect that even though Ex.A.3 was admitted in evidence without collecting deficit stamp duty and penalty, as per Section 61 of the Indian Stamp Act, the High Court could cure the defect by causing Ex.A.3 to be sent to the Collector for collecting deficit stamp duty and penalty and wherefore, reliance placed on Ex.A.3 for collateral purpose cannot be found fault with.
36. On balance, the second appeal is partly allowed only to the extent of awarding additional sum of Rs.5,000/- (Rupees Five Thousand only) to be deposited by the plaintiff in favour of the defendant in the Executing Court concerned within a period of one month. Whereupon the defendant shall deliver the vacant possession of the suit property. Consequently, the connected Miscellaneous Petition is closed. No costs.
37. On hearing the judgment of this Court, the learned Counsel for the defendant would make an extempore submission that some more time might be given for the defendant to vacate and hand over vacant possession of the suit property. Whereas the learned Counsel for the plaintiff would submit that the plaintiff had already deposited a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) before the trial Court.
38. Taking into consideration the facts and circumstances of the case, I am of the view that three months' time could be granted for the defendant to vacate the premises from this date, provided he should file an affidavit of undertaking to that effect in this Court within fifteen days from today. The Registry is directed to send the original records to the trial Court forthwith and on receipt of the same, the original purposed usufructuary mortgage deed - Ex.A.3 is directed to be sent to the Collector for collecting the stamp duty and penalty concerned as per law. Report compliance.
rsb To
1.The Principal District Judge, Madurai.
2.The I Additional Subordinate Judge, Madurai.