Madras High Court
Saminathan vs Sukumar
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 05.07.2021
PRONOUNCED ON: 30.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P. (PD) No. 578 of 2021
And
C.M.P.No. 4898 of 2021
Saminathan
... Petitioner/1st Plaintiff/Petitioner
-Vs-
Sukumar ... Respondent/1st Defendant/Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, 1908 against the fair and decreetal order of the Principal District
Court at Ariyalur, dated 02.07.2019 in I.A.No. 120 of 2018 in O.S.No. 5 of
2011.
***
For Petitioner : Mr. P.Valliappan
For Respondent : Mr. S.Vijayakumar
https://www.mhc.tn.gov.in/judis/
2
ORDER
This Civil Revision Petition has been filed under Article 227 of the Constitution of India, by the 1st plaintiff in O.S. No. 5 of 2011 pending on the file of the Principal District Court at Ariyalur, questioning the order dated 02.07.2019 dismissing I.A. No. 120 of 2018, which Interlocutory Application had been filed by the petitioner herein u/s 151 CPC calling upon the Court not to take on file an unregistered partition deed dated 05.03.1957, which document was sought to be marked as an Exhibit by the defendants in the suit.
2. The suit in O.S. No. 5 of 2011 had been filed seeking partition and separate of possession of the suit schedule properties and for a direction against the 1st defendant to render accounts and for costs of the suit.
3. The suit has been pending for the past 10 years without any effective progress. Thankfully, pleadings have been completed and the parties have now been invited to graze the witness box. https://www.mhc.tn.gov.in/judis/ 3
4. The plaintiffs and the defendants trace title to the properties mentioned in the schedule to the plaint to their grandfather, Rangaraja Nainar. The plaintiffs claim through one of his sons, Maharaj Nainar, which claim is disputed by the 1st defendant, who claims through another son, Nadusamy. None of the parties to the suit had toiled to purchase any of the properties. Naturally, they have ventured into litigation, thereby ensuring that pride and prejudice would always score over sense and sensibility.
5. The trial has just commenced and it would therefore be inappropriate on my part to delve into a discussion on the relative merits of the facts pleaded and I would leave that privilege to the learned Principal District Judge, Ariyalur.
6. A reading of the plaint would indicate that the plaintiffs have axe to grind against the 1st defendant in the suit. https://www.mhc.tn.gov.in/judis/ 4
7. In the written statement, the 1st defendant questioned the suit for partition, claiming that the surviving 4 sons of Rangaraja Nadar had divided the ancestral properties by an unregistered, unstamped partition deed dated 05.03.1957. All the signatories, all the witnesses and even the scribe to the document are dead. The arduous task of deciding admissibility, relevancy and proof of the said document has now been thrown open and the revision petitioner herein filed I.A. No. 120 of 2018, calling upon the Court to reject the same. The Court refused, leading to the filing of this Revision Petition. The said document had come for consideration in earlier proceedings between the parties to the disadvantage of Maharaja Nainar, through whom the plaintiffs claim, in O.P. No. 2 of 1985, which was a petition filed seeking Succession Certificate, and the said document is claimed to be one of the reasons to deny grant of Succession Certificate. That fact may not have a direct bearing on the discussions now required to decide whether an unstamped, unregistered partition deed can be relied on in a judicial proceedings, in the teeth of Sections 35 of the Indian Stamp Act, 1899 and in the teeth of Sections 17 and 49 of the Registration Act, 1908. https://www.mhc.tn.gov.in/judis/ 5
8. The revision petitioner/1st plaintiff claims that the document should not be looked into for any purpose, the respondent/1st defendant claims that the document can be looked into for collateral purposes. The Learned Principal District Judge acceded with that view and stated that the document can be looked into to establish possession.
9. I have given careful consideration to the arguments advanced by Mr. P. Valliappan, who disputed such view of the learned Judge, and by Mr. S. Vijayakumar, who supported that view.
10. Section 35 of the Indian Stamp Act, 1899 is as follows :
“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-
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(a) any such instrument 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 a penalty of five rupees, or, when ten times the amount of the 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, 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 anyone of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
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(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 ( 5 of 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.
11. Section 17 of the Registration Act, 1908 is as follows :
17. Documents of which registration is compulsory.—
(l) 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, 1866, 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 https://www.mhc.tn.gov.in/judis/ 8 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) leases 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 https://www.mhc.tn.gov.in/judis/ 9 which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
(2) Nothing in clauses (b) and (c) of sub-section
(l) applies to—
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, https://www.mhc.tn.gov.in/judis/ 10 conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than the documents specified in sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or
(vii) any grant of immovable property by Governmen]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land https://www.mhc.tn.gov.in/judis/ 11 Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any https://www.mhc.tn.gov.in/judis/ 12 part of the purchase money.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.
Section 49 of the Registration Act, 1908 is as follows :
49. Effect of non-registration of documents required to be registered.— No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall —
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.
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12. The import of the above provisions can be stated as follows :
1. Under Section 35 of the Indian Stamp Act, 1899, an unstamped or inadequately stamped document cannot be admitted in evidence for any purpose, unless it is stamped.
2. It can be admitted in evidence, if duty and penalty as provided under sub clause (a) of Section 35.
3. Under Section 17 of the Registration Act, 1908, a document which creates, declares, assigns, limits or extinguishes, whether in present or in future, any right, title or interest in immoveable property has to be compulsorily registered.
4. Under Section 49 of the Registration Act, 1980, a document required to be so compulsorily registered cannot be received as evidence of any transaction affecting such property.
5. It may, however be received in evidence of any collateral transaction not required to be effected by registered instrument.
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13. A partition deed creates and limits the rights of the parties to the document. It has to be compulsorily registered. It has to be therefore stamped.
14. A small leverage of the words “for any purpose” in Section 35 of the Stamp Act has been given by the further words “unless such instrument is duly stamped”.
15. If an unstamped or inadequately stamped partition deed is filed as a document and is sought to be marked as an exhibit, it has to pass the test of admissibility.
16. To be even considered whether it is admissible, even ostensibly for collateral purposes, it has to be first impounded and the duty and penalty as stipulated in clause (a) of Section 35 of The Indian Stamp Act, 1899 will have to be determined and collected.
17. An unregistered document has to suffer the fate of non registration. An exception is, if it is introduced to evidence a “collateral https://www.mhc.tn.gov.in/judis/ 15 transaction”. A collateral transaction is often wrongly termed as collateral purpose. The said collateral transaction for evidence which an unregistered partition deed is produced should also be compulsorily registrable. Possession of a property claimed through a document indicates transfer of a right in immovable property. Thus an unregistered document cannot be an evidence to prove possession, since the document which grants that right of possession has not been registered.
18. Viewed from that angle, the order of the learned Principal District Judge, that the partition deed sought to be introduced as evidence by the respondent herein can be looked into for the purpose of determining possession, has to be interfered with. But, a process of partition contemplates severancy of status, division of the joint family property by metes and bounds and possession of the divided and allotted shares. When status is severed, then each coparcenor is a co-tenant of the other. That is the first stage. Then comes actual division of the property by metes and bounds. Then comes possession of the shares divided and allotted. Division by metes and bounds and handing over of possession are clauses inherent to any partition deed. If such a partition deed is neither stamped nor registered, https://www.mhc.tn.gov.in/judis/ 16 curing the document by payment of duty and penalty will still not make the document admissible to prove actual partition and putting or taking possession of the shares divided and allotted.
19. The only purpose for which an unstamped and unregistered partition deed can be looked into is to evidence severance of status among or between the coparcenors. Each coparcenor then become co-tenants of each other. Nobody gets an independent right over any particular portion of the joint family property. That right is created by actual division by metes and bounds.
20. In Vedangi Veeraragava Rao vs Vedangi Gopala Rao, (1941) 54 LW 499 : AIR 1942 Mad 125 : (1941) 2 Mad LJ 707 Justice M. Patanjali Sastri (as His Lordship then was) held as follows :
“The finding that the partition deed was inadmissible to show what property fell to each co- sharer must result in the conclusion that each co- sharer enjoyed an undivided share in each item of the properties. In such circumstances, even if one co- sharer happened to be in sole enjoyment of a https://www.mhc.tn.gov.in/judis/ 17 particular piece of property, he could not, as it seems to me, sue in ejectment if another co-owner disturbed such enjoyment. He could only bring a suit for partition of all the properties owned in common or, according to some decisions, for joint possession with his co-owners.”
21. In Nalam Ramayya and others v.Nalam Achamma, (1944) 57 LW 472 : (1944) 2 Mad LJ 164 (FB) : AIR 1944 Mad 550 (FB) a Full Bench of this Court approved that view. It was also observed that the view Patanjali Sastri J had been upheld in appeal. The Full Bench held as follows :
“As the property in suit admittedly had belonged to the joint family, the change in its character must be proved. As the agreement for partition cannot be proved, the Court can only regard the property as still belonging to the joint family. Moreover, as Patanjali Sastri, J. pointed out, one co-owner cannot maintain a suit for trespass against another co-owner.”
22. The issue again came up for consideration before a Full Bench of the Andhra Pradesh High Court, in Chinnappareddigari Peda Mutyalza Reddy vs Chinnappareddigari Venkata Reddy and others, AIR 1969 AP
242. It was held as follows :
https://www.mhc.tn.gov.in/judis/ 18 “Where a Partition has taken place, the terms of which are incorporated in an unregistered document that document is inadmissible in evidence and cannot be looked into for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately effect the nature of the possession held by the members of the separated family who from thence onward, hold it as co-tenants. For severance in status., all that is required is a communication either orally or in writing to the other members of the Joint Family of an unequivocal intention to separate. If the intention was reduced to writing, such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.”
23. This dictum that a partition deed, though inadmissible can be looked into only to establish severance of status has been upheld by the https://www.mhc.tn.gov.in/judis/ 19 Hon’ble Supreme in Yellapu Uma Maheswari and another vs Buddha Jagadheeswara Rao and others (2015) 16 SCC 727 = (2016) 2 LW 656.
The Hon’ble Supreme Court was concerned with two unstamped, unregistered partition deeds which had been marked as Exs. B 21 and B 22. Their admissibility was under challenge. It was held as follows :
“15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are https://www.mhc.tn.gov.in/judis/ 20 compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v.
Chinnappareddigari Venkata Reddy, 1967 SCC OnLine AP 4 : AIR 1969 AP 242 has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. https://www.mhc.tn.gov.in/judis/ 21 Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B- 22 for collateral purpose subject to proof and relevance.”
24. This has been the flow of law with respect to unstamped, unregistered partition deeds produced as documents and sought to be marked as evidence. They are not admissible. They have to be impounded and duty and penalty must be collected. They are still not admissible to prove the factum of partition. They are not admissible to prove division of properties and allotment of shares. They are not admissible to prove possession. They can only be relied on to show severance of status. A decree cannot be passed on the allotment of shares in accordance with the inadmissible partition deed. A suit for partition has to be decided independently of the allotment of shares as given in the inadmissible partition deed. Still, a co-parcenor has to “bring a suit for partition of all the properties owned in common or, according to some decisions, for joint possession with his co-owners.”
25. My attention had been invited to a string of decisions by Mr. P. https://www.mhc.tn.gov.in/judis/ 22 Valliappan by learned Single Judges of this Court regarding admissibility of unstamped and unregistered documents. I am constrained to examine the inadmissibility and the limited scope for admissibility of an unstamped, unregistered partition deed. I therefore refrain myself into entering on a discussion on those judgments. Suffice to point out, the document now under question cannot be admitted to prove the factum of partition, cannot be admitted to prove the factum of possession. It can be looked into only for the limited purpose of enquiring whether there has been severance of status among the parties to the lis or among the parties to the document. The shares allotted can never be examined. The reasoning of the learned Judge that the document can be looked into for the purpose of examining ‘possession’ is specifically set aside.
26. The order of the learned Judge to take on file the unstamped, unregistered partition deed dated 05.03.1957 is however up held, but a direction is given that as a necessary pre-condition, the document must be impounded and necessary duty and penalty as stipulated in the provisions of the Stamp Act, 1935 must first be collected. The document can be looked into only for the purpose of establishing ‘severance of status’ among the parties. Nothing more, nothing less. The suit for partition will have to https://www.mhc.tn.gov.in/judis/ 23 proceed in manner known to law and in accordance with established procedure by passing a preliminary decree determining the shares, then passing a final decree. The preliminary decree determining shares will have to based on the evidence let in and not based on the covenants of the unstamped, unregistered partition deed.
27. The Civil Revision Petition is disposed of accordingly. No order as to costs. Connected Miscellaneous Petition is dismissed. A direction is issued to the Principal District Judge, Ariyalur to dispose the suit on or before 31.12.2021.
30.07.2021 vsg Index: Yes/No Internet: Yes/No. Speaking / Non speaking C.V.KARTHIKEYAN, J.
https://www.mhc.tn.gov.in/judis/ 24 vsg Pre-delivery Order made in C.R.P. (PD) No. 578 of 2021 And C.M.P.No. 4898 of 2021 30.07.2021 https://www.mhc.tn.gov.in/judis/