Madras High Court
Sukanya Viswanathan vs M.Rathinam on 17 September, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.09.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.527 of 2014 and M.P.No.1 of 2014 1.Sukanya Viswanathan 2.V.Keerthana .. Petitioners Vs. 1.M.Rathinam 2.R.Chitra Raviraj 3.M.Jayalakshmi 4.R.Govindaraj 5.P.Suresh 6.R.Ravi 7.R.Chitra .. Respondents Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dated 10.10.2013 passed by the Vth Additional District and Sessions Court, Coimbatore in O.S.No.715 of 2011. For Petitioners : Mr.L.Mouli For R1 : Mr.S.Kadarkarai For R2 to R7 : No appearance O R D E R
Civil Revision Petition is filed against against the order dated 10.10.2013 passed by the Vth Additional District and Sessions Court, Coimbatore in O.S.No.715 of 2011 not permitting the revision petitioners to file the document dated 09.05.2001.
2.The first respondent herein as a plaintiff has filed a suit in O.S.No.715 of 2011 for partition and separate possession of = share in the suit property. The revision petitioners herein are defendants 1 and 2 in the suit. During trial, signature in the partition deed dated 09.05.2001 is marked as Ex.B1 by the revision petitioners, but it was objected by the plaintiff for marking entire document as Ex.B3. The trial Court held that Ex.B3 is defective for want of stamps and registration and it cannot be admissible at present and if the defendant wants to rely on the document for collateral purpose, then he must pay the necessary stamp duty with penalty, against which, the present revision petition is preferred by the defendants 1 and 2.
3.Heard the learned counsel for the revision petitioners as well as the first respondent and perused the typed set of papers.
4.The suit property and other properties originally belonged to one Solaiya Gowder and he is having three sons namely, Rangasamy Gowder, Samannan and Kannappan and a daughter by name, Subbammal. After the death of Solaiya Gowder, there was a partition between the children of Solaiya Gowder and the suit properties were allotted to the share of Rangasamy. The said Rangasamy died in the year 1981 leaving behind his widow wife Rangammal, son Viswanathan and daughter Rathinam. Subsequently, the wife of Rangasamy viz. Rangammal and Viswanathan also died in the year 1995. Thereafter, the daughter of Rangasamy/Rathinam has come forward with the suit for partition and separate possession of = share in the suit property. The revision petitioners herein are wife and daughter of late Viswanathan respectively.
5.The defendants filed a written statement stating that after the death of Rangasamy, there was an oral partition between the family members. When the first defendant tried to get loan from the Bank in the year 2001, the plaintiff executed the partition confirmation deed, in which, she confirms the earlier family arrangement and obtained money for the property and relinquished her right and she has no objection for availing loan by the first defendant. During trial, signature in the document was marked as Ex.B1.
6.Before adverting into the facts of the case, it is appropriate to consider the following decisions relied upon by the learned counsel for the revision petitioners:
(i) In AIR 1966 SCC 292 (Tek Bahadur Bhujil v. Debi Singh Bhujil and others), in para-12, it is held as follows:
12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the family arrangement is reduced 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 amount to a document of title declaring for future what rights in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under Section 17 of the Registration Act.
(ii)In AIR 1988 SCC 881 (Roshan Singh and others v. Zile Singh and others), in para-16, it has been held as follows:
Held, that admittedly there was a partition by metes and bounds of the agricultural lands and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house. The document does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered.
7.Learned counsel for the first respondent submitted that the document is not properly stamped, so the document is not reliable and admissible in evidence. To substantiate his arguments, he relied upon the following decisions:
(i) In 2013 (6) CTC 227 (Omprakash v. Laxminarayan and others), wherein it has been held that nomenclature has been decided only on the recital in the document and the admissibility can be decided only at the time of judgment. It is appropriate to incorporate para-12 and 13, which runs as follows:
12.From a plain reading of the aforesaid provision, it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence. The view which we have taken finds support from a decision of this Court in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532, in which it has been held as follows:
21.It is not in dispute that the possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. We are not concerned with the enforcement of the said agreement. Although the same was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908.
22.We have noticed here to before that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The Court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a Deed of Conveyance. Adequate stamp duty admittedly was not paid. The Court, therefore, was empowered to pass an order in terms of Section 35 of the Act.
13.To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008, (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don't think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
9.It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don't think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra).
(ii) In 2001 (1) CTC 112 (A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and five others), wherein it has been held that family arrangement must be engrossed in proper stamps and it must be registered and unstamped document cannot be looked into even for collateral purpose. Para-26 and 27 are extracted hereunder:
26. The next question would be what is the position is the said document is not only registered, but it is also not stamped i.e. unstamped. Section 35 of the Indian Stamp Act reads thus:
S. 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 not being an instrument chargeable with a duty not exceeding ten naye paise only, 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 the proper duty of deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.
27. Courts have interpreted the terms any purpose as for each and every purpose including collateral purposes or in other words such document is inadmissible and such a document cannot be looked into for any purpose. A Division Bench of this Court in Pentapatti Nageswara Rao v. Moka Narayanamurthi and another, 1937 (II) M.L.J.805, ruled thus:-
"The section Itself, in my opinion, provides a complete answer to the petitioner's case. If an unstamped document cannot be admitted for any purpose, it must mean, if the words are to be given their ordinary and plain meaning that it cannot be admitted under any circumstances in a civil suit. If the legislature in placing this provision of law on the statute book had intended to allow unstamped instruments to be admitted for collateral purposes, it would surely have said so. It did not say so, but on the other hand, it provided that a negotiable instrument which is insufficiently stamped at the time of execution cannot be properly stamped afterwards, even on payment of a penalty which is allowed in the case of other documents."
A Division Bench of this Court in the ruling reported in Yasodammal v. Janaki Ammal, AIR 1968 Mad. 294, held as under:
".....But in the case of an unstamped document it has been held that as the prohibition contained in Section 35 of the Stamp Act is wide and absolute even though in the pleadings the contesting party may admit the execution of the unstamped document, no relief could be granted on the basis of the admission, as it would amount to acting upon the unstamped document."
The above decision has been followed by this Court in 2004(4) CTC 208 (R.Deivanai Ammal (Died) and another v. G.Meenakshi Ammal and others) in para-23 of its order.
(iii) In 2013 (4) CTC 145 (D.Srinivasan and others v. D.Chairman and others), wherein it has been held that unregistered family arrangement is not admissible in evidence.
8.Considering the above decisions along with the facts of the present case, as per the dictum of the Apex Court, recital in the document is necessary to show that whether it conveys the title to the document.
9.Now this Court has to decide whether the document is conveyance as defined under Section 2(10) of the Indian Stamps Act. On perusal of document, it reveals that it is not conveyed any title to the parties. In Ex.B3 document, it was specifically mentioned that the plaintiff/first respondent herein has received amount for the property and relinquished her right and that the plaintiff has no right over the property and there is no objection to the first defendant to obtain the loan on the basis of the property. In such circumstances, entire recital of the document is not conveyance as defined under Section 2(10) of the Indian Stamps Act. Once it is not conveyance under Section 2(10) of the Indian Stamps Act, it need not be engrossed in stamps and registered as per Section 33 of the Indian Stamps Act and Section 17 of the Registration Act. On perusal of the recital in the document, it reveals that it is not conferred or created any title to any party and it is only a letter for confirmation and availing loan on the basis of the oral partition. In such circumstances, the trial Court has erroneously rejected the document as if it is inadmissible in evidence. So I am of the view, the impugned order passed by the trial Court is liable to be set aside and it is hereby set aside.
10.In the result, the Civil Revision Petition is allowed after setting aside the order dated 10.10.2013 passed by the Vth Additional District and Sessions Court, Coimbatore in O.S.No.715 of 2011. Ex.B3 is an admissible in evidence. No costs. Consequently, connected Miscellaneous Petition is closed.
17.09.2014 Internet:yes kj To V Additional District and Sessions Court, Coimbatore.
R.MALA,J.
Kj C.R.P(PD).No.527 of 2014 and M.P.No.1 of 2014 17.09.2014