Punjab-Haryana High Court
Hari Singh vs Shish Ram And Ors. on 7 May, 2002
Equivalent citations: AIR 2003 PUNJAB AND HARYANA 150, 2003 HRR 42, (2003) 1 CIVILCOURTC 554, (2002) 2 HINDULR 667, (2002) 3 PUN LR 538, (2002) 4 RECCIVR 830, (2002) 4 ICC 914
JUDGMENT M.M. Kumar, J.
1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) seeks to challenge the order dated 13.1.1999 declining the application of the plaintiff-petitioner for adducing additional evidence. In the additional evidence, the plaintiff-petitioner sought permission to lead secondary evidence of a document dated 31.12.1991 alleging that the original of the family arrangement witnessed in the writing was in possession of defendant-respod-nent No. 1. The application of the plaintiff-petitioner has been dismissed on the principal ground that the photostat copy of writing dated 31.12.1991, which is a family settlement, witnessed between the parties, it has been expressly recorded that consideration from one party to another has passed and, therefore, it required registration under Section 17 of the Registration act, 1908 (for brevity, the Act). The Civil Judge (Junior Division), Mohindergarh while dismissing the application has recorded the following order:
"Learned counsel for the plaintiff has argued that writing was family partition, hence, secondary evidence of the same should be allowed. Learned counsel for the plaintiff has relied upon authority in case Mukhtiar Singh v. Bant Singh, (1991-1)99 P.L.R. 15. On the other hand, learned counsel for the defendant has argued that alleged writing never came into existence otherwise also registration of the partition deed is necessary, hence secondary evidence of the same cannot be allowed. Learned counsel for the defendant has placed reliance upon authority in case Jupudi Kesava Rao v. Pulavvarthi Venkata Subharao and Ors., A.I.R. 1971 S.C. 1970; Thirumathi Ramayammai and Ors. v. Thirumathi Mathummal and Ors., A.l.R. 1974 Madras 321.
I am convinced with the arguments of learned counsel for the defendant because from the perusal of the alleged photostat writing it is clear that it is a partition between the parties and consideration also passed from one party to another. Thus it requires registration in view of authority in Thirumathi Ramayammai's case (supra). A document of which registration is necessary if the same is unregistered then secondary evidence of the same cannot be allowed. And for the same reliance can be placed upon authority in Jupudi Kesava Rao's case (supra). Authority in case Mukhtiar Singh's case (supra) is not sustainable in view of authority in Tek Bahadur Bhujil v. Debi Singh. A.l.R. 1966 S.C. 292 in which Hon'ble Supreme Court has held that when a family arrangement is brought about (sic...?) a document it requires registration. Hence, I found no merit in the application. Hence, application for leading secondary evidence is dismissed."
2. Brief facts of the case necessary to decide the issue involved are that the plaintiff-petitioner filed a civil suit No. 820/95 dated 4.11.95 for mandatory injunction against the defendant - respondents claiming that on the basis of family partition recorded on 31.12.1991, he is entitled to the properties specified in the heading of the plaint. Further prayer has also been made in the suit restraining defendant-respondents from forcibly occupying the land in dispute or raising any construction thereon. An application was filed on 21.12.1998 with a prayer that the original document regarding the family partition dated 31.12.1991 is with defendant-respondent No. 1 Shish Ram because after recording the settlement between the parties, it was handed over to him. A photocopy of the afore-mentioned document was retained by the plaintiff-petitioner and a prayer was made that the original be got produced from defendant-respondent No. 1 Shish Ram. Defendant-respondent No. 1 having failed to produce that document, the plaintiff-petitioner sought permission to prove the document by way of secondary evidence. In the reply filed by the defendant-respondents, the existence of document dated 31.12.1991 was seriously disputed by asserting that such a document was never written and the witnesses on the alleged writing are relatives of the plaintiff-petitioner. Therefore, secondary evidence of such a document of which existence is doubtful could not be permitted to be adduced,
3. 1 have heard Shri R.K. Gupta, learned counsel for the plaintiff-petitioner and Shri J.S. Yadav, learned counsel for the defendant-respondents and have perused the record with their assistance.
4. Shri R.K. Gupta, learned counsel for the plaintiff-petitioner has vehemently argued that the Civil Judge has committed grave illegality by dismissing the application on the ground that the document dated 31.12.1991 required a registration and in the absence of registration such a document cannot be produced. Learned counsel has relied upon two judgments of the Supreme Court, namely, Bhoop Singh v. Ram Singh Major and Ors., A.I.R. 1996 S.C. 196 and Balmik v. Ramnaresh Singh and Ors. J.T. 2001(10) S.C. 65 and argued that a document witnessing family partition would not require registration in all cases. According to the learned counsel it is only that compromise which creates new rights for the first time title or interest in immovable property of the value of Rs. 100/- or more which would require compulsory registration. He has drawn my attention to various propositions mentioned in para 18 of the judgment in Bhoop Singh's case (supra). According to the learned counsel, photostat copy of the document clearly shows that document does not create any new right which was not pre-existing. Therefore, the Civil Judge has committed grave error in law by refusing to grant permission to the plaintiff-petitioner for adducing secondary evidence.
5. On the other hand, Shri J.S. Yadav, learned counsel for the defendant-respondents with equal vehemence argued that once consideration even in accordance with the document has been passed from one party to the other then it is not possible to conclude that no new rights, were created. According to the learned counsel, had no new rights come into existence then there was no necessity to make payment of additional consideration. In support of his submission, the learned counsel has placed reliance on a judgment delivered by a Constitution Bench in the case of Tek Bahadur Bhujil v. Debt Singh Bhujil and Ors. A.I.R. 1966 S.C. 292. He has drawn my attention to para 12 of the judgment and argued that any document which declares the future right of the parties instead of pre-existing rights would require registration under Section 17 of the Act which provides for compulsory registration of certain documents.He has also placed reliance on paragraph 13 of judgment of Orissa High Court in the case of Gangadhar Das.s and Anr. v. Gadadhar Das and Ors., A.I.R. 1986 Orissa 173 and argued that the document in dispute in the present case would require compulsory registration and cannot be relied upon in the absence of its registration. Another submission made by the learned counsel is that the plaintiff-petitioner has failed to prove the existence of the document within the meaning of Section 65 of the Indian Evidence Act.
6. 1 have thoughtfully considered the submissions made by the learned counsel for the parties and am of the considered view that the revision petition is devoid of merit because according to the photostat copy of the document dated 31.12.1991 relied upon by the plaintiff-petitioner consideration has passed from one party to the other which is sufficient to show that future rights of the parties have been brought into existence. Section 17(1) of the Act postulates compulsory registration of specified categories of documents which include non-testamentary instruments which acknowledges the receipt or payment of any consideration on account of creation/declaration of a right, title or interest, Section 17(1) of the Act reads as under:-
17. Documents of which registration is compulsory.- (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
a) instruments of gift of immovable property:
b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest: and
d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent:
e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the (State Government) may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees."
7. The provisions of Section 17 of the Act came up for consideration before the Supreme Court in Tek Bahadur Bhujii's case (supra) which lays down the principle that if the writing creates, declare future rights and consideration on that account has passed from one person to another, then such a document would require registration. The observations of the Constitution Bench in Tek Bahadur Bhujii's case (supra) read as under: -
"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 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.
8. The judgment in Bhoop Singh's case (supra) also laid down the same principle in the context of compromise decree. After referring to numerous other judgments of the Supreme Court including Tek Bahadur Bhujii's case (supra), their Lordships in Bhoop Singh's case (supra) observed as under:-
"The legal position qua Clause (vi) of Section 17(2) can, on the basis of the aforesaid discussion, be summarised as below:
(1) Compromise decree if bonafide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the decree or order would require registration.
(3) if the decree were not to attract any of the Clauses of Sub-section (i) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the "subject matter of the suit or proceeding", Clause (vi) of Sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1999, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated."
9. The principles laid down in the aforementioned judgments of the Supreme Court is that when a document seeks to confer a future right or creates a right in favour of a party and consideration has passed hands, then registration of such document is compulsory. Even in cases of compromise decree/consent decree, registration has been made compulsory if the decree instead of declaring the existing rights, it creates a new right. In the present case, it is obvious that the photostat document has recorded a fact that consideration has passed hands from one party to another. It naturally is for creation of rights. Therefore, such a document would necessarily require registration under the Act.
10. Once it is clear that the original of the photostat document dated 31.12.1991 was itself required to be registered compulsorily under Section 17(i)(b) of the Act, then the question which falls for consideration is whether a document of which original is not admissible, could be permitted to be proved by allowing adducing of its secondary evidence. In this regard the observations of the Supreme Court in the case of Jupudi Kesava Rao (supra) would be relevant. In that case the question which fell for consideration before the Supreme Court was whether a copy of the document, original of which was insufficiently stamped could be permitted to be proved by allowing adducing of secondary evidence. Under Sections 35 and 36 of the Stamp Act, 1899, the payment of stamp duty is mandatory and a document chargeable with stamp duty cannot be admitted in evidence by any person who is to receive the document in evidence nor could such a document can be accepted for registration. The argument rejected by the Supreme Court is that in pursuance to the provisions of Section 35(a) of the Stamp Act, 1899, the stamp duty with penalty could be paid and then copy of the original could be received in evidence as a piece of secondary evidence. Therefore, it is obvious that Section 35(a) would apply if the original is actually before the court and not to the copy of the original. The observations of their Lordships in this regard at page 1074 read as under :-
"The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of its which relates to acting upon the instrument, will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35, Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
If Section 35 only deals with original instruments and not copies. Section 36 cannot be so interpreted a to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."
11. The principles enunciated by the Supreme Court in Jupudi Kasava Rao's case, (supra) were followed and applied by this Court in the case of Shri Balwant Singh v. Shri Mehar Singh, A.I.R. 1974 Punjab and Haryana 130. The same principles have been followed and applied by a Division Bench of Orissa High Court in the case of Gangadhar Dass 's case (supra). Therefore, no fault could be found with the impugned order.
12. I am further of the view that the argument of the learned counsel for the defendant-respondents that the plaintiff-petitioner has failed to fulfil the essential ingredients of Section 65 of the Evidence Act as he has failed to prove the existence of document dated 31.12.1991 is also well founded. Before a party is permitted to adduce secondary evidence it is a sine qua non for him to show that the document is in existence and despite notice it has not been produced by the party in whose custody the document is kept. In the present case, the plaintiff-petitioner has not been able to prove even the existence of document dated 31.12.1991. Therefore, on this account also, the revision petition is liable to be dismissed.
13. For the reasons recorded above, this revision petition fails and is dismissed.