Madras High Court
Valliammal vs Sakunthala on 10 August, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.07.2018
PRONOUNCED ON : 10.08.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.Nos. 2287 & 2288 of 2004
S.A.No. 2287 of 2004
1. Valliammal
2. Ammanniammal
3. Thangammal ... Appellants
Vs.
1. Sakunthala
2. Sudha
3. The District Collector,
Collectorate Office Building
Perundurai, Erode 3,
Erode District.
4. The District Registrar
Erode 3,
Erode District.
5. The Joint Sub Registrar
No.1, District Registrar Office,
Erode 3, Erode District. ... Respondents
S.A.No. 2288 of 2004
1. Valliammal
2. Ammanniammal
3. Thangammal ... Appellants
Vs.
1. Sakunthala
2. Sudha ... Respondents
(RR3 & 4 transposed as Appellants
2 and 3 vide order of Court dated
23.01.2015 made in CMP.No.267 of 2013)
Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 25.11.2003 passed in A.S.Nos.160 & 161 of 2002 respectively on the file of the First Additional District Court, Erode confirming the Judgment and Decree dated 18.07.2002 passed in O.S.Nos.286 of 1999 & 136 of 1993 respectively on the file of the First Additional Subordinate Court, Erode.
For Appellants in both : Mr.J.Murugamanickam
the second appeals Senior Counsel
for Mr.P.T.Ramadevi
For Respondents in both : Mr.S.Parthasarathy
the second appeals Senior Counsel
for Mr.Vimalkumar
COMMON JUDGMENT
Challenge, in these second appeals, is made to the Judgement and Decree dated 25.11.2003 passed in A.S.Nos.160 & 161 of 2002 respectively on the file of the First Additional District Court, Erode confirming the Judgment and Decree dated 18.07.2002 passed in O.S.Nos.286 of 1999 & 136 of 1993 respectively on the file of the First Additional Subordinate Court, Erode.
2. The second appeals have been admitted on the following substantial questions of law;
(i). In the face of the recitals found in the title deeds relating to the property in question and the oral evidence of the plaintiff, which is in total corroboration to the recitals in the title deed itself, which clearly establishes that the property in question is the separate acquisition of Muthusamy Gounder, has not the lower appellate Court committed an illegality in reversing the finding contrary to the evidence on record?
(ii). If the property is held to be self-acquired property of Muthusamy Gounder, would the Release Deed, relied upon by the defendants to exclude the plaintiff from the line of succession, be legal?
(iii). Is the finding of the Courts below that the Will has been duly proved is contrary to the evidence on record?.
3. Further, this Court had also formulated the further substantial questions of law to be determined in these second appeals:
(i). Whether the judgment of the Courts below are vitiated in that they have dismissed the suit for partition merely on the ground, that the Appellants have released their right in the suit properties under Ex.B6 Release Deed, whereas the suspicion surrounding the execution and registration of this document has not been dispelled by the respondents?
(ii). Whether the registration of Ex.B6 Release Deed can be held to be valid in law, when it has not been presented for execution by the so-called executants to this document to this document?
(iii). When the appellants have denied execution of Ex.B6 Release Deed, and the very fact, that the stamp papers on which this document has been typed been obtained several months prior to the execution of this document, but also from different placed, then, whether respondents 1 & 2 have discharged their duty to remove the suspicion surrounding execution of this document?
4. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the fact of the case in detail.
5. The suit in O.S.No.136 of 1993 has been laid by the first appellant for partition.
6. The suit in O.S.No.286 of 1999 has been laid by the appellants for the cancellation of the release deed dated 11.09.1992 and for the consequential relief of permanent injunction.
7. The first appellant is the wife and the appellants 2 & 3 are the daughters of the deceased Muthusamy Gounder. The deceased Muthusamy Gounder had a son by name Thulasimani. The contesting respondents Sakunthala and Sudha are the wife and daughter of the deceased Thulasimani. Claiming that the properties involved in the matter belonged to the deceased Muthusamy Gounder as his separate properties and accordingly, it is stated that Muthusamy Gounder having died intestate leaving the appellants and the respondents as his legal representatives, accordingly, the first appellant had laid the suit against the contesting respondents as well as the other appellants for partition in O.S.No.136 of 1993. The contesting respondents resisted the abovesaid suit by putting forth the plea that the suit properties are the ancestral properties of Muthusamy Gounder and accordingly, the first appellant and the other appellants are not entitled to the share in the suit properties as put forth by them and further, it is also pleaded by the contesting respondents that the appellants had executed a released deed dated 11.09.1992 as regards their share in the family properties for a valid consideration in favour of the deceased Thulasimani and further, it is pleaded by the contesting respondents that the deceased Thulasimani had executed a Will during his lifetime on 02.10.1992 bequeathing the suit properties in favour of the contesting respondents viz., his wife and daughter and accordingly, it is putforth by the contesting respondents that the suits laid by the appellants abovestated are liable to be dismissed.
8. On the basis of the materials placed on record, the Courts below had upheld the release deed dated 11.09.1992 and the Will dated 02.10.1992 projected by the contesting respondents and thereby, dismissed the suits laid by the appellants respectively. Impugning the same, the present second appeals have been preferred.
9. The release deed dated 11.09.1992 has been marked as Ex.B6, the Will dated 02.10.1992 has been marked as Ex.B7. The specific case of the contesting respondents is that the appellants, being entitled to the specific share in the family properties as detailed in the written statement, claimed that they had executed a release deed in favour of the deceased Thulasimani by way of the release deed dated 11.09.1992 marked as Ex.B6 and accordingly, it is their case that the deceased Thulasimani became entitled to the entire family properties that belonged to the deceased Muthusamy Gounder and it is also further stated that the deceased Thulasimani, in a sound and disposing state of mind, bequeathed the suit properties in favour of the contesting respondents by way of a Will dated 02.10.1992 and thereby, sought for the dismissal of the suits filed by the appellants.
10. The trial Court, on the basis of the materials placed on record, held that the first item of the suit properties is the separate property of Muthusamy Gounder and the item 2 to 5 of the plaint schedule properties are his ancestral properties. However, the first appellate Court, on the appreciation of the materials placed on record, held that all the suit properties are the joint family properties of Muthusamy Gounder and his son Thulasimani and accordingly, proceeded to dispose of the first appeals preferred by the appellants. Insofar as the abovesaid determination of the first appellate Court as regards the character of the plaint schedule properties to be the joint family properties of Muthusamy Gounder and his son Thulasimani, no contra contention as such has been raised by the appellants' counsel. On the other hand, the focus that has been placed by the appellants' counsel in these second appeals is only as regards the validity of the release deed marked as Ex.B6. According to the appellants' counsel, Ex.B6 is found to be shrouded in mystery and accordingly, it is contended by him that Ex.B6 has not been presented by the appellants or the deceased Thulasimani for registration before the registration office and on the other hand, the same has come to be presented for compulsory registration only by the wife of the deceased Thulasimani viz., Sakunthala and accordingly, it is stated that the registering authority without considering the contentions of the appellants as regards the invalidity of the release deed in the right perspective, erred in registering the same and accordingly, it is stated that the released deed dated 11.09.1992 is not a true document and not validly registered as per law and accordingly, it is stated that the claim of the respondents to have derived title to the suit properties based on the abovesaid release deed and also on the basis of the Will dated 02.10.1992 should be rejected. In other words, it is stated that once the release deed is held to be an invalid document, according to the appellants' counsel, the Will would have not any force legally and accordingly, the main point that has been focused in the second appeals is only as regards the truth and validity of Ex.B6 Release deed.
11. As abovestated, according to the contesting respondents, the appellants, for a valid consideration, have by way of the release deed relinquished their interest in respect of the suit properties in favour of the deceased Thulasimani and further, according to the contesting respondents, only after the demise of Thulasimani, they had come to know about the release deed and on noting that the said document had not been registered, accordingly, it is stated that the abovesaid document had been presented for registration before the registering authority and the registering authority, accordingly, passed an order, ordering the registration of the said document on the basis of the materials placed on record and accordingly, it is stated that Ex.B6 released deed is a valid document. The order of the registering authority directing the registration of the release deed in question has been marked as Ex.A3 and on a perusal of the same, it is found that inasmuch as there had been some delay in presenting the document for registration, accordingly, the matter had been referred to the District Registrar for the condonation of delay and the District Registrar, considering the materials placed on record, condoned the delay and accordingly, passed an order directing the registration of the document in question, accordingly, it is found that the registering authority, on the basis of the materials placed by the respective parties, finding that the appellants, for a valid consideration, as recited in the release deed had relinquished their shares in favour of the deceased Thulasimani and resultantly, holding that the release deed is a genuine document and entitled for registration as per law, ordered the registration of the said document as per the order dated 23.06.1998 which has been marked as Ex.A3. On a perusal of the order marked as Ex.A3, it is found that the parties involved in the matter presented the evidence in support of their respective contentions, both oral and documentary and accordingly, it is seen that on an appreciation of the same, the registering authority had directed the registration of the said release deed.
12. The main contention put forth by the counsel for the appellants is that the stamp papers used for the release deed are found to have been obtained much prior to the date of the release deed and also found to have been secured from different stamp vendors on different dates and accordingly, on that footing, it is his contention that a serious suspicion arises as to the genuineness of the release deed and accordingly, put forth the argument that the release deed should not have been registered by the registering authority on the abovesaid sole point. Countering the abovesaid argument put forth by the appellants' counsel, it is argued by the counsel for the contesting respondents that merely because old stamp papers had been utilised for the execution of the release deed secured from the different stamp vendors, that ground alone by itself would not enure to the benefit of the appellants to contend that Ex.B6 release deed is a false document and in this connection, strong reliance is placed upon the decision of the apex Court reported in (2008) 4 Supreme Court Cases 530 (Thiruvengadam Pillai Vs. Navaneethammal and another). On a perusal of the abovesaid decision, it is found that the mere usage of the old stamp papers secured on different dates from various vendors by itself would not render the document invalid and when the Stamp Act does not, as such, prohibit the usage of the old stamp papers and when the persons associated with the document in question cannot be deemed to be familiar with the legal provisions relating to stamps and accordingly, bona fidely would have thought that old stamp papers available in their custody could also be utilised for the purpose of the execution of the document and accordingly, used the old stamp papers, on that footing it cannot be held that the document in question is an invalid document. Accordingly, the above position of law has been enunciated by the apex Court in the following manner:
11. The Trial Court and the High Court have doubted the genuineness of the agreement dated 5.1.1980 because it was written on two stamp papers purchased on 25.8.1973 and 7.8.1978. The learned counsel for first respondent submitted that apart from raising a doubt about the authenticity of the document, the use of such old stamp papers invalidated the agreement itself for two reasons. Firstly, it was illegal to use stamp papers purchased on different dates for execution of a document. Secondly, as the stamp papers used in the agreement of sale were more than six months old, they were not valid stamp papers and consequently, the agreement prepared on such 'expired' papers was also not valid. We will deal with the second contention first. The Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.
12. The Stamp Rules in many States provide that when a person wants to purchase stamp papers of a specified value and a single stamp paper of such value is not available, the stamp vendor can supply appropriate number of stamp papers required to make up the specified value; and that when more than one stamp paper is issued in regard to a single transaction, the stamp vendor is required to give consecutive numbers. In some States, the rules further require an endorsement by the stamp vendor on the stamp paper certifying that a single sheet of required value was not available and therefore more than one sheet (specifying the number of sheets) have been issued to make up the requisite stamp value. But the Indian Stamp Rules, 1925 applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with consecutive serial numbers. The Rules merely provide that where two or more sheets of paper on which stamps are engraved or embossed are used to make up the amount of duty chargeable in respect of any instrument, a portion of such instrument shall be written on each sheet so used. No other Rule was brought to our notice which required use of consecutively numbered stamp papers in the State of Tamil Nadu.
13. The Stamp Act is a fiscal enactment intended to secure revenue for the State. In the absence of any Rule requiring consecutively numbered stamp papers purchased on the same day, being used for an instrument which is not intended to be registered, a document cannot be termed as invalid merely because it is written on two stamp papers purchased by the same person on different dates. Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under section 35 or 37 of the Indian Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues.
14. If a person wants to create or a back-dated agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5.1.1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an anti-dated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.
13. In the light of the decision of the apex Court, when there is no impediment for the usage of the stamp papers purchased more than 6 months prior to the proposed date of the execution being used for a document and when the Stamp Act does not prohibit the usage of old stamp papers and when the layman would have been under the bonafide impression that old stamp papers could also be utilised for the preparation of a document and accordingly, used the same, resultantly, it is seen that on the abovesaid reasonings alone, we cannot determine that Ex.B6 is an invalid document. In such view of the matter, the decision relied upon by the appellants' counsel reported in (2013) 4 Supreme Court Cases 546 (Garre Mallikharjuna Rao (Dead) By Lrs and others Vs. Nalabothu Punniah), as rightly put forth by the respondents counsel would have no application to the case at hand and at the most, the usage of the old stamp papers could also be a circumstance to cast doubt on the validity of the said document and in such view of the matter, on that sole basis, we cannot determine that the document in question is an invalid document.
14. In the light of the abovesaid position, when it is found that the registering authority, on the basis of the appreciation of the materials placed before him, found that the release deed in question had been executed by the appellants in favour of the deceased Thulasimani relinquishing their interest in the family properties for a valid consideration as recited in the document and accordingly, the attestors, who had been examined before the registering authority, as also been examined by the contesting respondents as DW2 in the present lis and when DW2 has tendered evidence in a clear and cogent manner as regards the execution of the release deed as well as the execution of the Will marked as Exs.B6 & B7 respectively and the Courts below had rightly assessed his evidence in the proper perspective and finding that his evidence has not been shown to be untrustworthy by the appellants during the cross examination accordingly, it is found that the Courts below had rightly believing the evidence of DW2, upheld the defence version of the contesting respondents as regards the genuineness and validity of the release deed Ex.B6. No doubt, the appellants have examined the other attestor as PW3. However, considering the evidence of PW3 in toto noting when that he has admitted that the contents of the document has been written in the stamp papers at the time of his signing the same and also admitted that he has been informed that the said document is a release deed and accordingly, he has affixed his signature in the said document and when he has also further admitted that he had not refused to sign the document on the footing that the appellants had not signed the same accordingly, on an analysis of his above version, the Courts below rightly disbelieved his case as if the appellants had not signed in the said document at the time, when his signature had been obtained therein, accordingly, it is found that the Courts below, on a thorough and proper appreciation of the evidence of PW3 and DW2 as regards the execution of the release deed, finding that the release deed had been indeed executed by the appellants as put forth by the contesting respondents and when the case of the appellants that the usage of the old stamp papers for the purpose of the release deed has not been shown to be undermining, in any manner, the validity of the said release deed, particularly, in the light of the decision of the apex Court as abovenoted and when the release deed had come to be presented for registration compulsorily by the contesting respondents as provided under law and when as per Section 32 of the Registration Act, the document could be presented for registration even by any person claiming right under the same and accordingly, noting that Sakunthala, the wife of the deceased Thulasimani is entitled to present the document for registration as per law and when the document is found to have been registered by the concerned authorities, after following the legal formalities as provided under the Registration Act i.e. after inviting the objections of the appellants and when it is found that the second appellant who has been examined even before the registering authority is not definite in her stand that LTI found in the release deed is not that of all the appellants and accordingly, even in the present matter, no acceptable evidence has been adduced by the appellants to disbelieve the release deed either as regards the falsity or invalidity of the same as projected by them, accordingly, it is found that the Courts below had rightly upheld the validity of the released deed in question and in such view of the matter, no interference is called for in the determination of the Courts below upholding the genuineness and the validity of the same.
15. Following the same, it is found that Thulasimani being entitled to the suit properties in entirety has bequeathed the same in favour of the contesting respondents by way of Ex.B7 will and the validity of Ex.B7 Will has been duly established by the contesting respondents through the evidence of DW2 and nothing has been pointed out by the appellants to disbelieve his evidence with reference to the genuineness of Ex.B7 Will and following Ex.B6 release deed, when Thulasimani is found to be entitled to bequeath the suit properties in entirety in favour of the contesting respondents, accordingly, it is seen that the Courts below are also justified in upholding the genuineness and validity of Ex.B7 Will. In the light of the above discussion, the appellants having failed to establish that any suspicion besets the execution and registration of Ex.B6 release deed as sought to be made out and when it is seen that the release deed has been duly presented for registration and accordingly, declared to be a valid document by the registering authority and also entitled for registration as per the Registration Act and when the case of the appellants that the genuineness of Ex.B6 release deed gets undermined on account of the usage of the old stamp papers for the reasons aforestated, found to be unacceptable in the light of the decision of the apex Court as abovenoted and the materials placed on the side of the respondents dispelled all the suspicions surrounding the execution of the same, sought to be made out, and on the other hand, only point to the due execution of the same by the appellants in favour of Thulasimani for a valid consideration. Accordingly, it is found that the contesting respondents have duly established the genuineness and validity of the release deed Ex.B6 as well as the Will Ex.B7 in the manner known to law and the determination of the first appellate Court that the suit properties are the joint family properties of the deceased Muthusamy gounder and his son Thulasimani, does not call for any interference in any manner, accordingly, the substantial questions of law formulated in the second appeals are answered against the appellants and in favour of the contesting respondents.
Resultantly, both the second appeals fail and accordingly, are dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
10.08.2018 Index : Yes / No Internet : Yes / No sms To
1. The First Additional District Court, Erode.
2. The First Additional Subordinate Court, Erode.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN, J.
sms Pre-Delivery Judgment made in S.A.Nos. 2287 & 2288 of 2004 10.08.2018