Madras High Court
Azhagan Ambalam vs Rasu on 14 June, 2018
Equivalent citations: AIRONLINE 2018 MAD 1331
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.06.2018 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.R.P.(MD)(PD)No.907 of 2018 and CMP(MD)No.3993 of 2018 Azhagan Ambalam ... Petitioner -vs- 1.Rasu 2.Minor Navaneetha Krishnan 3.Minor Varadhan ... Respondents (Minor Respondents 2 and 3 Rep. by their Father Rasu Respondent No.1 herein) PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order of eviction dated 27.03.2018 in I.A.No.185 of 2018 in O.S.No.210 of 2013, on the file of the Additional District Munsif Court, Manaparai, Trichy District. !For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel for Mr.P.Ganapathi Subramanian ^For Respondents : Mr.V.G.Kamalesh :ORDER
The petitioner has filed this Civil Revision Petition, to set aside the order and decree dated 27.03.2018 in I.A.No.185 of 2018 in O.S.No.210 of 2013, on the file of the learned Additional District Munsif Court, Manaparai, Trichy District.
2.The instant Civil Revision Petition is filed by the Revision petitioner challenging the order of the Court below in allowing the application filed by the Defendants/Respondents herein under Order 8, Rule 1(3) r/w Section 151 of C.P.C. to receive the unregistered sale deed dated 19.04.1978 and kist receipts.
3.The case of the Revision Petitioner is that he filed a suit against the Respondents herein in O.S.No.210 of 2013 on the file of the learned Additional District Munsif Court, Manaparai for declaration, permanent injunction and mandatory injunction.
4.According to the Revision Petitioner, he has purchased the suit property from his sister Ponnammal under a registered sale deed dated 13.07.1970. Since the Defendants claimed that their father purchased the suit property from the Plaintiff through unregistered sale deed dated 19.04.1978, the Plaintiff filed the above suit for the reliefs stated supra.
5.Further contention of the Petitioner is that the Defendants have filed their written statement way back in the month of September 2013. When the claim of the Defendants through the unregistered sale deed dated 19.04.1978 they have not filed the original unregistered sale deed along with the written statement. Now at the time of commencement of trial the Respondents herein filed an application in I.A.No.185 of 2018 to receive the documents mentioned in the Petition on the ground saying that at the time of filing written statement the original unregistered sale deed could not be traced out and other three Kist receipts obtained only after the suit was filed.
6.The Revision Petitioner objected the application to receive the documents filed by the respondents herein. An unregistered document cannot be accepted and the same is required compulsory registration under Section 17 of the Indian Registration Act. Therefore, the unregistered sale deed is not valid under Law and the same is not having evidentiary value. Further, the unregistered sale deed cannot be looked into even for collateral purpose as the present suit is for declaration of title and not for the relief of specific performance and hence Section 49 of the Indian Registration Act will have no application at all in the present case. Hence, the Revision Petitioner prayed the Trial Court to dismiss the application.
7.The Lower Court has come to the conclusion that the receipt of documents would not prejudice the right of the Plaintiff and further directed the defendants to pay penalty stamp duty for the unregistered sale deed dated 19.04.1978. Feeling aggrieved over the said order, the Revision Petitioner has come up with the present civil revision petition.
8.I heard Mr.AR.L.Sundaresan, learned Senior Counsel for Mr.P.Ganapathi Subramanian, learned counsel appearing for the petitioner and Mr.V.G.Kamalesh, learned counsel appearing for the respondents and perused the entire records.
9.The learned Senior Counsel appearing for the Revision Petitioner would submit that when the Revision Petitioner denied the execution of the alleged unregistered sale deed; the Court below ought not to have received the document. Further, the Respondent herein failed to produce the document along with the written statement, when it is their specific case that they purchased the suit property only through the above said unregistered sale deed and there is no explanation for non-filing the same along with the written statement.
10.The learned Senior Counsel would further submit that when the Revision Petitioner questioning the admissible of document itself, the same cannot be received by the Court below. The learned Senior Counsel also draw the attention of this Court to the Judgment of our High Court in the case of E.Meganathan and another Vs. M.Samraj in C.R.P(PD)No.454 of 2016 and C.R.P(PD)No.2348 of 2016 dated 17.02.2016, wherein it was held as follows:
?4.It is in dispute that the value of the property as on the date of the documents itself was more than 100 rupees. As such, the said document is one that registration under Section 17 of the Registration Act, 1908 Section 49 of the Registration Act, 1908 makes such unregistered documents inadmissible in law in proof of any right said to have been derived under the said document. However, the proviso provides two expectation, which are as follows:
an unregistered sale deed can be unused as evidence of the contract for sale of immovable property in a suit for specific performance; and it can be used for proof of any collateral transaction, which is not required under aw to be registered.
The second exception is mostly misunderstood by projecting the same to be one for the use of an unregistered document for any collateral purpose. The term ?collateral purpose? was rightly countered by the opposite party and learned trial Judge has also correctly chosen to dismiss the petition I.A.No.2078/2014 by order dated 17.08.2015, which is impugned in the present revision proffered under Article 227 of the Constuutiution of India.?
11.Per contra, the learned counsel for the respondent contented that the Trial Court was right in receiving the documents. Mere receiving the documents could not amount to marking the same. Further, the Learned Trial Judge has directed the respondents to pay stamp duty penalty since the Respondents sought to receive the unregistered sale deed. Therefore the learned counsel for the respondents submitted that contention raised on the side of the revision Petitioner the documents cannot be received at all since the sale deed which is more than 100 rupees value requires compulsory registration is not holding good and prays this Hon?ble Court to dismiss the revision. He has also relied upon the following two decision of our High Court in support of his contention:
2015 ? 1- L.W. 134, in the case of Solai Vs. Periyakaruppan & others, it is held that ?From the various Judgments relied on by the Parties, an unregistered, unstamped document can be marked and relied on by the party for collateral purpose. It is also well settled that the Courts must mark an unregistered, unstamped document subject to the objection by the opposite party. The Courts should not shut down the evidence at the threshold itself. At the time of final decision only, the Courts must consider the evidence based on the document and objections by the opposite party. If the Court comes to conclusion that the objection with regard to document is sustainable, then the said document and evidence based on the said document must be rejected. The learned Judge committed irregularity by rejecting the marking of documents at the threshold itself. The learned Judge ought to have marked the documents subject to the objections as per well settled law. Therefore, the order of the learned District Munsif ?cum-judicial Magistrate No-1, Usilampatti, dated 18.09.2013, passed in I.A.No.511 of 2013 in O.S.No.149 of 1995, is liable to be set aside. Accordingly, the impugned order is set aside?.
2017(2) MWN (Civil) 165, in the case of Navinraj ?Vs- Gnanasekar & other, it is held that ?Thus, what emerges from the above position of law is that if a document with respect to which stamp duty is not paid or insufficiently stamped and it is unregistered as per section 17 of the Indian Registration Act. Then, when such document is produced before the Court, the Court has to impound it, calculate the stamp duty and collect the same together with penalty, if any. If the parties refuse for it, then it has to be sent to the collector for adjudication. Therefore, only it has to be received in evidence. Even then by paying the stamp duty, in view of the bar in section 49 of the Indian Registration Act a compulsory register able document when not registered cannot be looked into for any purpose but after paying the stamp duty it can be looked into only for collateral purpose.
Thus at the admission stage itself, the Court cannot refuse to admit the document merely because objections have been raised by the parties. Further, after collecting stamp duty and penalty, if any, the Court can note the objections including whether for a collateral purpose such document could looked into or not and defer its conclusions thereon to the judgment stage?.
12.Considering the rival submission on either side, I am of the opinion that the receipt of documents is no way prejudice the right of the revision petitioner. The petitioner is having right to object the documents at the time of marking. In this case the question of objection also would not arise, because the trial court has directed the respondent herein to pay penalty of stamp duty for the unregistered sale deed. Further, if the marking of unregistered sale deed is for the purpose of possession or deciding title could be gone into only during the course of trial. The respondent herein could mark the documents which are impugned in this civil revision subject to proof, relevance and admissibility and the same cannot be objected at the time of receipt of the documents. The learned trial judge is right in holding that all the objections raised by the revision petition could be gone into only at the time of trial and therefore, this court is of the view that the learned trial court has not committed any material irregularity in allowing the application. Therefore the objection by the learned counsel for the petitioner is not sustainable.
13.In the result, this Civil Revision Petition is dismissed and the fair and decreetal order dated 27.03.2018 in I.A.No.185 of 2018 in O.S.No.210 of 2013, on the file of the learned Additional District Munsif Court, Manaparai, Trichy District, is hereby confirmed. No costs. Consequently, connected miscellaneous petition is closed.
To The Additional District Munsif Court, Manaparai, Trichy District.
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