Madras High Court
Sakthivel S/O. Ramasamy vs Lakshmi W/O. Karuppan on 10 June, 2024
C.R.P. No.3869 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
C.R.P. No.3869 of 2022
and
C.M.P. No.20303 of 2022
Sakthivel S/o. Ramasamy ... Petitioner / 1st Respondent / Plaintiff.
Vs.
1. Lakshmi W/o. Karuppan
2. Santhi W/o. Raman
3. Suseela W/o. Karikalan
4. Vasantha W/o. Gopalnayacker ... Respondents 1 to 4 / Petitioners /
Defendants 1, 3 to 5.
5. Kumaravel S/o. Govindhan
6. Krishnamoorthi S/o. Govindhan ... Respondents 5, 6 / Respondents 2 & 3
/ Defendants 6 & 7
PRAYER: The Civil Revision Petition is filed under Article 227 of
Constitution of India praying to set aside the fair and decreetal order dated
24.08.2022 made in I.A. No.428 of 2022 in O.S. No.62 of 2015 on the file of
the learned II Additional District Munsif, Kallakurichi.
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C.R.P. No.3869 of 2022
For Petitioner : Mr. A.E. Ravichandran
For Respondents : Mr. N. Manoharan [for R1 to R4]
No appearance [for R5 & R6]
ORDER
This Civil Revision petition has been filed by the petitioner as against the order dated 24.08.2022 passed in I.A. No.428 of 2022 in O.S. No.62 of 2015 on the file of the learned II Additional District Munsif, Kallakurichi, wherein the respondents 1 to 4 herein have filed a petition before the Trial Court to reject the documents marked as Ex.A.4 and Ex.A.5 under Order XIII Rule 3 of Code of Civil Procedure and the same was allowed. Aggrieved by the said order, the present revision petition has been filed.
2. According to the petitioner, he is the Plaintiff in the main Suit and he filed a Suit for the relieves of declaration and permanent injunction and to set aside the decree passed in O.S. No.357 of 2005 on the file of learned District Munsif, Kallakurichi. During the trial of Suit, the petitioners have marked documents Ex.A4 and Ex.A.5, which are unregistered release deeds. The respondents 1 to 5 are his sisters and the 2nd defendant died pending Suit and her legal heirs were impleaded as defendants 6 and 7. The petitioner is 2/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 the only son to his parents and his father executed a Will dated 07.04.1980 in respect of the suit property measuring 0.89.5 hectares and he died on 15.05.1983 and after his death, the Will came into force. The above said Will is also known to his sisters and they have not raised any objection and thereafter his sisters 1 to 4 defendants had executed an unregistered family release deed dated 14.02.1990 and relinquished their right over the property. Similarly his mother also executed an another release deed dated 23.02.1998 and relinquished her right over the property. While the facts are being so, his sisters collusively filed a Suit for partition in O.S. No.357 of 2005 on the file of Principal District Munsif Court, Kallakurichi and obtained exparte decree. Therefore, he filed the present Suit. When the matter was riped for trial, he was examined as PW1 and marked Ex.A4, release deed executed by his sisters and Ex.A.5, release deed executed by his mother. Thereafter, the defendants filed a petition to reject the documents Ex.A.4 and Ex.A.5 stating that those deeds are unregistered documents and thereby they have to be rejected. The Trial Court, without going into the nature of the documents that the same are between the family members, simply allowed the petition and rejected the documents on the ground that those documents are unregistered. The said documents are necessary for proving his case and he 3/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 is entitled to the suit properties and he is in the possession of the suit properties. The Trial Court without considering the same, rejected the documents and therefore, the order passed by the Trial Court is liable to be set aside.
3. According to the respondents, the averments made in the petition affidavit are all denied as false and they never executed any release deed in favour of the petitioner. Those documents dated 14.12.1990 and 23.02.1998 were not executed either by the defendants 1 to 4 or by their mother Veerammal. The said documents are unregistered documents and the said documents have been marked as Ex.A.4 and Ex.A.5, which are compulsorily registrable documents. The Suit was filed for relief of declaration based on the above said documents. Therefore, the said documents are relied for main purpose of the Suit and the same are liable to be rejected. The Trial Court, after careful consideration of the documents, correctly rejected the said documents, which are compulsorily registrable and therefore, the present revision petition is liable to be dismissed.
4. After hearing both sides, the Trial Court has allowed the petition. Aggrieved by the said order, the present revision petition is filed. 4/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022
5. The learned counsel appearing for the petitioners would contend that the respondents 1 to 4, being Sisters of the petitioner, have relinquished their right over the property through an unregistered release deed dated 14.12.1990. From the date of release deed, he is in possession and enjoyment of the properties. Likewise, on 23.02.1998, the mother of the petitioner had also relinquished her right in respect of her share in the suit properties by executing an unregistered release deed. Those documents have been marked as Ex.A.4 and Ex.A.5. After marking the documents, the respondents 1 to 4 have filed a petition under Order XIII Rule 3 of Code of Civil Procedure for rejection of the said documents. The Trial Court without considering that those documents are between the family members and without considering the case of the petitioner, rejected those documents. The Trial Court ought to have impounded the documents and collected penalty of stamp duty of those documents, but the Trial Court without doing so, simply rejected the documents. Therefore, the order passed by the Trial Court is liable to be set aside.
5(i) In support of his contention, the learned counsel appearing for the petitioner has relied upon judgments as follows:- 5/21
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(i) Bipin Shantilal Panchal vs. State of Gujarat and another reported in 2001 3 SCC 1-3.
(ii) A. Ramamoorthy and another vs. G. Kumaresan and another reported in 2020 SCC Online Mad 26206.
(iii) Korukonda Chalapathi Rao and another vs. Korikonda Annapurna Sampath Kumar reported in 2021 SCC Online SC 847.
(iv) Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 reported in 2023 SCC Online SC 1666 and
(v) Sita Ram Bhama vs. Ramvatar Bhama reported in (2018)
15 Supreme Court Cases 130: (2019) 1 Supreme Court Cases (Civ) 116 :
2018 SCC Online SC 269.
6. The learned counsel appearing for the respondents would contend that the petitioner filed unregistered documents which are compulsorily registrable under Section 17 of Registration Act and thereby, under Section 49 of Registration Act, those documents cannot be marked as documents, but the petitioner has marked those unregistered release deeds alleging that the defendants 1 to 4 and his mother had executed those unregistered release 6/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 deed dated 14.12.1990 and 23.02.1998 respectively and he has been in possession and enjoyment of the property and thereby he is entitled to the property. The main suit is filed for relief of declaration and injunction and therefore, the Plaintiff mainly relied on those documents to prove the title of the property. The said documents are unstamped and unregistered documents and thereby those documents cannot be looked into for any purpose, even for collateral purpose. But the Trial Court, without considering that those documents are inadmissible, has marked those documents despite the respondents raised their objections to mark those documents on the ground that they are unregistered documents. Thereafter, the respondents have filed an application before the Trial Court to reject the documents Ex.A.4 and Ex.A.5 and the Trial Court after elaborate discussion, correctly held that unregistered documents cannot be received and marked as evidence and thereby, rejected the said documents. Therefore, the order passed by the Trial Court is in order and the present revision petition is liable to be dismissed.
6(i) In support of his contention, the learned counsel appearing for the respondent has relied upon the following judgments: 7/21
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(a) Yellapu Uma Maheswari and another v. Buddha Jagadheeswara Rao and others reported in (2015) 16 Supreme Court Cases 787.
(b) Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in (2009) 2 Supreme Court Cases 532.
7. Heard both sides. Perused all the materials available on record.
8. It is an admitted fact that Ex.A.4 and Ex.A.5 have been marked by the petitioner and those documents are styled as 'release deeds' said to be executed by the respondents 1 to 4 and one Veerammal respectively in favour of the petitioner. According to the petitioner, those documents are release deeds and under the said documents, the parties have relinquished their rights over the suit properties and the said documents have been executed by the concerned parties and based on the said documents, he has been in possession and enjoyment of the property and thereby, he filed a Suit for declaration and injunction. The respondents 1 to 4 denied the execution of said document and according to them, the said documents are compulsorily registrable under Section 17 of Registration Act and the same was also not denied by the petitioner. But his contention is that the 8/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 documents are between the family members and the said documents can be received and marked as evidence.
8(i) In this context, the learned counsel appearing for the petitioner has relied upon judgment in Bipin Shantilal Panchal vs. State of Gujarat and another reported in 2001 3 SCC 1-3, wherein the Hon'ble Supreme Court has held in Para 14 as follows:-
“14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed”.9/21
https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 On careful perusal of the above said judgment, it is clear that the objections raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence, the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case or record the objected part of the oral evidence, subject to such objections to be decided at the last stage in the final judgment. However, if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further. In the case on hand, the said documents Ex.A.4 and Ex.A.5 have been marked with the objection of the respondents. Therefore, the case law is no way helpful to the petitioner's case.
8(ii) A. Ramamoorthy and another vs. G. Kumaresan and another reported in 2020 SCC Online Mad 26206 – wherein the Hon'ble Supreme Court has held in para 5 as follows:-
“5. On a careful consideration of the rival submissions, this Court considers that the trial court ought to have gone slow in allowing I.A. No.934 of 2018. The ideal course that was available to the trial court is to impound Ex.A.1 as per the ratio of the Hon'ble Supreme Court in AIR 1961 SC 1655 and AIR (2009) 3 Mad LJ 409 SC 10/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 and impose stamp penalty on that. Secondly, the trial court ought to have refrained from making any observation or statement as to the evidentiary value of certain document during middle of the trial. Thirdly, if the stamp penalty leviable on Ex.A.10 is collected, then the document can be used for collateral purposes, even if it is registered”.
8(iii) Korukonda Chalapathi Rao and another vs. Korikonda Annapurna Sampath Kumar reported in 2021 SCC Online SC 847 – wherein, the Hon'ble Supreme Court has held in paras 34 to 36 as follows:-
“34. In SMS Tea Estates (P) Ltd., v. Chandmari Tea Co. Private Ltd., the question arose whether an arbitration agreement contained in a compulsorily registrable document which was not registered could be used to prove the collateral transaction, namely, the provision for arbitration. This Court held as follows:
“11. Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered 11/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 document (which is compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to Section 49 of the Registration Act.
16. An arbitration agreement does not require registration under the Registration Act.
Even if it is found as one of the clauses in a contract or instrument, it is an independent agreement to refer the disputes to arbitration, which is independent of the main contract or instrument. Therefore having regard to the proviso to Section 49 of the Registration Act read with Section 16(1)(a) of the Act, an arbitration agreement in an unregistered but compulsorily registrable document can be acted upon and enforced for the purpose of dispute resolution by arbitration”.
35. If we apply the test as to whether the Khararunama in this case by itself 'affects', i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which have been entered into by the parties, then, going by the words used in the document, they indicate that the words are intended to refer to the arrangements allegedly which the parties made in the past. The document does not purport to by itself create, declare, assign, extinguish or limit right in properties. Thus,the Khararunama may not attract Section 49(1)(a) of the Registration Act.
36. As far as Section 49(1)(c) of the Registration Act is concerned, it provides for the other consequence of a compulsorily registrable document not being so registered. That is, under 12/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 Section 49(1)(a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights i immovable property by way of creation, declaration, assignment, limiting or extinguishment. Section 49(1)(c) in effect, reinforces and safeguards against the dilution of the mandate of Section 49(1)(a). Thus, it prevents an unregistered document being used 'as' evidence of the transaction, which 'affects' immovable property. If the Khararunama by itself, does not 'affect' immovable property, as already explained, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property. However, being let in evidence, being different from being used as evidence of the transaction is pertinent [See Muruga Mudaliar (supra)]. Thus, the transaction or the past transactions cannot be proved by using the Khararunama as evidence of the transaction. That is, it is to be noted that, merely admitting the Khararunama containing record of the alleged past transaction, is not to be, however, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question”.
8(iv) Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 reported in 2023 SCC Online SC 1666, wherein, the Hon'ble Supreme Court has held in para 258 as follows:-
13/21
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8(v) Sita Ram Bhama vs. Ramvatar Bhama reported in (2018) 15 Supreme Court Cases 130: (2019) 1 Supreme Court Cases (Civ) 116 :
2018 SCC Online SC 269 - wherein, the Hon'ble Supreme Court has held in paras 14 and 15 as follows:-
“14. After holding the said documents as inadmissible, this Court in Yellapu Uma Maheswari case further proceeded to consider the question as to whether the documents B-21 and B- 22 can be used for any collateral purpose. In the above context, the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided the appellant – defendant to pay the stamp duty together with penalty and get the document impounded. In paras 16 an 17, the following has been laid down:
“16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the 14/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigiri Venkata Reddy 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., severency 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. 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.
17. Accordingly, the Civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy”.
15. Following the law laid down by this Court in the above case, we are of the opinion that the document dated 09.09.1994 may be admissible in evidence for collateral purpose provided the appellant gets the document impounded and to pay the stamp duty together with penalty as has been directed in the above case”.
On careful perusal of the above said judgments, it is crystal clear that as per Section 49 of Registration Act, it makes clear that the document 15/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner and it will also not be received as evidence of any transaction affecting such property, except for evidence of a contract in a suit for specific performance and evidence of any collateral transaction which by itself is not required to be effected by registered instrument. In the case on hand, Ex.A.4 and Ex.A.5 are said to be release deeds which are compulsorily registrable under Section 17 of Registration Act and thereby, those documents cannot be received as evidence, which is affecting immovable property. Moreover, the said documents are unstamped. Further, as per proviso of Section 49 of Registration Act, unregistered documents can be received for collateral purpose. However, in the present case, the Plaint averments shows that the Suit is filed for declaration and injunction based on those documents Ex.A.4 and Ex.A.5 as main purpose. Therefore, those documents cannot be received even for collateral purpose. Moreover, there is no pleadings in the Plaint that those documents can be relied upon for the collateral purpose. Per contra, the pleadings shows that those documents relied on for the main purpose of relinquishment of rights by the parties in respect of immovable properties. Therefore, those judgments are noway helpful to decide the case 16/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 in favour of the petitioner / plaintiff.
9. Per contra, the learned counsel appearing for the respondents has relied upon judgments in:
(a) Yellapu Uma Maheswari and another v. Buddha Jagadheeswara Rao and others reported in (2015) 16 Supreme Court Cases 787 – wherein, the Hon'ble Supreme Court held in Para 13 as follows:-
“13. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Act”.
(b) Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in (2009) 2 Supreme Court Cases 532, wherein Hon'ble Supreme Court has held in para 29 as follows:-
29. In T. Bhaskar Rao v. T. Gabriel it has been held: (AIR p.177, para 5) “5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence, Proviso(a) to Section 35 of the Stamp Act enables a document to be received in evidence on payment 17/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (a) to Section 35 are complied with. It follows that if the requirements of proviso (a) to Section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence”.
It was further held: (Gabriel case, AIR p.177, para 7) “7. It is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act”.
On careful perusal of the above said judgments, it is clear that there is no prohibition under Section 49 of the Registration Act to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be 18/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. In the case on hand also, the documents are unregistered and unstamped release deeds. As per Section 49 of the Registration Act, the said documents can be received for collateral purpose provided they have to be stamped / penalty has to be paid. The Suit is filed for the relief of declaration in respect of immovable property based on the documents Ex.A.4 and Ex.A.5 and thereby, the documents are for that main purpose and not for collateral purpose and thereby, the said documents cannot be received, even if the stamp duty and penalty is paid. Therefore, it is unnecessary to direct to make payment of stamp duty penalty and thereafter, to receive the documents as evidence. The above said exercises are only empty formalities and purpose will not be served. Therefore, this Court is of the opinion that even if payment of stamp duty penalty is paid due to non-registration, the documents cannot be received as evidence, as there is no any collateral purpose. The Trial Court, also in its order rightly held that unregistered and unstamped documents cannot be received as evidence and thereby, the order passed by the Trial Court is in order and warrants no interference. 19/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022
10. In view of the above said case laws and the above discussions, this Court is of the opinion that Civil Revision Petition has no merits and deserves to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
10.06.2024 Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No mjs To The II Additional District Munsif, Kallakurichi. 20/21 https://www.mhc.tn.gov.in/judis C.R.P. No.3869 of 2022 P.DHANABAL., J.
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