Calcutta High Court (Appellete Side)
Madhusudan Das And Others vs Kripasindhu Das And Others on 28 November, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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28.11.13
C. O. 310 of 2011
With
C. O. 311 of 2011
Madhusudan Das and others
-vs-
Kripasindhu Das and others
Mr. Koushik De
Mr. Arun Kumar Saha ... For the Petitioners
Mr. Mohit Chatterjee ... For the Opposite
Parties No. 1 and 2
It is the case of the petitioners that the opposite parties
no. 1 to 7 as plaintiffs filed Title Suit No. 123 of 1989 before the
learned Court of Munsif, 2nd Court at Burdwan praying for
decree for partition and injunction. The said suit was
subsequently transferred to the Court of the learned Civil Judge
(Senior Division), First Additional Court at Burdwan being Title
Suit No. 149 of 1994. The opposite parties-plaintiffs alleged that
the property which originally belonged to Khudiram Das and his
brother Nidhiram Das remained unpartitioned and that
Khudiram Das died leaving his only son Kalipada Das
(defendant no.8). Defendant no.8 having eight annas share in
the scheduled property transferred the same to the defendant
no.1 and 2 to 6 by two registered deeds of 1989. As those
purchasers were strangers, the plaintiffs filed the said suit for
partition, pre-emption and injunction.
The present petitioners-defendants entered appearance
and filed written statement alleging that the ejmali property of
Nidhiram and Khudiram's only son Kalipada was partitioned by
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metes and bounds at the intervention of the local people and
that the suit for partition and/or pre-emption and injunction
was not maintainable.
At the time of evidence, the memorandum of partition
was filed by the petitioners-defendants. It was initially marked
'X' for identification, but the same was subsequently marked as
Exhibit 'E' by the learned trial court. Learned trial court after
contested hearing dismissed the suit on contest by judgement
dated 30th of July, 1998. The opposite parties-plaintiffs
preferred an appeal being Title Appeal No. 5/113/35A of
2002/1998. On the date of delivery of judgement, learned lower
appellate court observed that "Toknama", which was filed as a
document of partition, was marked as Exhibit 'E' without
impounding the same as per law, as it was not on requisite
stamp paper. Accordingly, learned lower appellate court directed
the learned trial court to impound the document 'Toknama'
under Section 33 of the Indian Stamp Act on hearing both sides
and following the procedure as laid down in Section 38 of the
Indian Stamp Act and thereafter to mark the document as
exhibit and to send the same to the learned lower appellate
court within a time framed for further order.
Being aggrieved with the said order, the petitioners-
defendants have filed the revisional application being C.O. 310
of 2011.
C. O. 311 of 2011 is directed against the order no. 124
dated 8th of June, 2010 passed by the learned Civil Judge,
(Senior Division), First Additional Court at Burdwan in Title Suit
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No. 124 of 2010. By the order impugned dated 8th of June,
2010, learned trial court after overriding the objections taken by
the learned counsel, for the present petitioners-defendants,
proceeded to impound the said document in terms of Section 35
of the Indian Stamp Act and requested the Collector, Burdwan,
to assess the valuation of impoundable instrument and the
stamp duty chargeable and to submit a report on that score by
the order impugned.
Mr. Koushik Dey, learned advocate appearing for the
petitioners in both the matters, submits that admittedly the
success or failure of the revisional application being C.O. 311 of
2011 was dependent on the success or failure of C.O. 310 of
2011.
Mr. Dey further submits that the impugned order of
learned lower appellate court in connection with C.O. 310 of
2011 is not sustainable in law. According to him, the said
'Toknama', being a document of partition, was executed on 20th
Jaistha 1360 B.S. which corresponds to 1953. According to
him, Section 14 of the West Bengal Land Reforms Act came into
operation in 1965 making the partition of properties to be
effective only if it is executed through a registered deed or in
terms of a court decree. He further submits that once a
document is marked as an exhibit without objection then there
is no scope of going back and raising objection on the ground
that it should have been executed on a stamp paper or that it
should have been registered. In this connection, he refers a case
law reported in (2006) 11 SCC 331 Shyamal Kumar Roy -vs-
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Sushil Kumar Agarwal. In this conenction he further submits
that once a document is marked as an exhibit by a court, then
Section 36 of the Indian Stamp Act comes into operation and
that no objection on the ground of execution of a document on
an insufficient stamp paper can be permitted to be raised at that
subsequent stage.
He further submits that even if a document, which is
compulsory registrable, is not registered and put into evidence
then the court by invoking Section 49 of the Indian Registration
Act can look into said document for collateral purposes. In
support of this contention, he refers a case law reported in
(2009) 2 CLJ (Cal.) p.650. He further submits that a 'Toknama'
can also be viewed as a document of a family settlement
between the parties through which parties started to reside in
their respective portions for convenience of possession.
Mr. Mohit Chatterjee, learned advocate appearing for the
opposite parties no.1 and 2 on the other hand, submits that the
document namely 'Toknama' was described by the opposite
parties-plaintiffs as a fabricated document. He further submits
that it is a specific plea that no document for partition by metes
and bounds between the parties was ever effected. He further
submits that in view of objection of the opposite parties-
plaintiffs, the said document was marked 'X' for identification
when it was tendered into evidence on 25th March, 1988. He
also submits that thereafter several dates were fixed for further
evidence of petitioners-defendants and for argument. According
to him, only on the date of delivery of judgement that is 30th
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June, 1988 the said 'Toknama' was marked as an exhibit 'E' by
the learned trial court behind the back of the present objecting
opposite parties-plaintiffs. According to him, as said 'Toknama'
was exhibited not with the consent of the plaintiffs-opposite
parties and rather behind their back, the plaintiffs had right to
take objection against the same in the appellate court.
He next submits that though the order impugned was
passed by the learned lower appellate court on 26th February,
2010 and that thereafter the learned trial court rejected the
submission of the learned counsel of the petitioners-defendants
and passed an order of impounding the same by an order dated
8th June, 2010 the present petitioners did not take any step.
According to him only when the learned trial court in terms of
the report of the Collector directed the petitioners-defendants to
deposit requisite stamp duty of Rs. 4 lakhs and odd, this
revisional applications being C. O.310 of 2011 and C. O. 311 of
2011 were filed just to drag the matter and to delay the payment
of amount towards stamp duty and impounding of document.
In support of his contention, he refers a case law reported
in 2008 (2) CHN 461 (Indrawati Tiwari Vs. Sheo) wherein it was
held that if a document with insufficient stamp paper is
produced in Court during hearing for making an exhibit then it
was the duty of the Court irrespective of the fact whether any
party raising any objection or not, to impound the same
according to law. He next refers the case law reported in (2008)
8 SCC 564 (K. P. Saha & Sons Pvt. Ltd. Vs. Development
Consultant Ltd.) under what circumstances Section 49 of the
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Registration Act can be invoked. He submits that the document
of partition should have been executed on proper stamp paper
in terms of the provisions as laid down in the Indian Stamp
Paper Act, 1899. He next submits that if said document of
alleged partition is not executed on the requisite stamp paper
then the court should impound the same in terms of Section 33
read with Section 38 of said Act of 1899. According to him, ld.
lower appellate court did not commit any wrong by passing the
direction upon the ld. trial court for impounding said alleged
document of partition as per law.
In terms of case laws referred by the ld. counsel for the
defendant petitioners once the document even executed upon
insufficient stamp paper is produced in Court and is admitted
into evidence without objection from the other side then there is
no scope of raising any further question on the ground of
execution of the same on insufficient stamp paper in terms of
Section 36 of the Act of 1899. But in the case in hand, it is
apparent that the "Toknama" claiming to be an alleged
document of partition between the original owners of the
property was objected to be exhibited from the side of the
plaintiffs when it was produced by the petitioner defendants
during trial and was marked 'X' for identification on 25th March,
1998.
It further appears that thereafter several dates were fixed
for examination of further witnesses for defendant petitioners
and for arguments. Said document was not exhibited during
said period. It appears that only at the time of passing judgment
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on 30th July, 1998 learned trial court passed an order of
exhibiting said document as Exhibit-E rather behind the back of
the plaintiff O.Ps. As such, it is palpably that it is not a case
where a document was exhibited on admission thereby
debarring the aggrieved party to raise any question on the
ground of exhibition of said document on insufficient stamp
paper in view of Section 36 of the Act of 1899. If the alleged
"Toknama" is regarded as a document of partition as alleged by
the petitioner defendants then it should have been executed on
sufficient stamp paper as prescribed in the Stamp Act of 1899.
Again as said document was not exhibited on admission and
rather behind the back of the O.P. plaintiffs there is no bar for
passing the order of the ld. lower appellate court to impound the
same according to law.
For invoking Section 49 of the Registration Act for using
an unregistered document for collateral purposes the
observations of Hon'ble Apex Court in the case of K. P. Saha &
Sons Pvt. Ltd. (supra) as laid down below are worthy to note:-
"34. 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. 8
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".
Learned lower appellate court by passing the order impugned has observed at least indirectly that said document "Toknama" was required to be executed on requisite stamp paper and was also required to be registered as per law and that before admitting said document into evidence as an exhibit ld. trial court should have impounded the same.
Considering the above spirit of the order impugned, of the ld. lower appellate court, I am of the opinion that said order does not call for any interference by this Court exercising the extraordinary power under Article 227 of the Constitution of India. Accordingly, the revisional application being C.O. 310/2011 is hereby dismissed on contest, but without cost.
Admittedly, the order challenged in connection with C.O. 311/2011 was passed by the ld. trial court for complying the 9 order challenged in C.O. 310/201. As the order impugned in C.O. 310/2011 is found to be sustainable in law, the order impugned in C.O. 311/2011 does not call for any interference. Accordingly, the C.O. 311/2011 is also dismissed on contest.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Tarun Kumar Gupta, J.)