Madras High Court
Solai vs Periyakaruppan on 25 September, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.09.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)(PD)No.2227 of 2013 & M.P.(MD) No.1 of 2013 Solai .. Petitioner Vs. 1.Periyakaruppan 2.Mayandi 3.Veeranan 4.Mayandi Thevar 5.Andi 6.Sivaraja 7.Sivapandi 8.Major Paulpandi 9.Sivanammal 10.Chellammal 11.Lakshiammal .. Respondents PRAYER Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the order, dated 18.09.2013, passed in I.A.No.511 of 2013 in O.S.No.149 of 1995, by the learned District Munsif-cum- Judicial Magistrate No.I, Usilampatti. !For Petitioner : Mr.J.Barathan ^For Respondents : Mr.R.Subramanian Date of reserving the Judgment : 09.09.2014 Date of pronouncing the Judgment : 25.09.2014 :ORDER
This Civil Revision Petition is filed to set aside the order, dated 18.09.2013, passed in I.A.No.511 of 2013 in O.S.No.149 of 1995, by the learned District Munsif-cum-Judicial Magistrate No.I, Usilampatti.
2.The petitioner is the nineteenth defendant and the respondents are the plaintiffs 3, 5 to 13 and 15 in the suit in O.S.No.149 of 2005 on the file of District Munsif-cum-Judicial Magistrate Court, Usilampatti.
3.The respondents along with four others filed the suit for partition and separate possession of respondents' 2/3rd share in the suit property item Nos.1 to 4 and for mesne profits. Defendants 1, 3 and 4 filed written statement on 04.02.1991 and filed additional written statement on 09.12.2004. The petitioner filed I.A.No.511 of 2013 for marking an unregistered documents, dated 08.07.1947 for collateral purpose. According to the petitioner, for collateral purpose, an unregistered document can be marked and relied on. The respondents denied the execution on disputed documents and contended that the document, dated 08.07.1947, is not a receipt, but it is only a sale deed. Therefore, it cannot be marked as document and relied for any purpose including any collateral purpose.
4.The learned Judge considering all the materials on record and the Judgments relied on by the learned counsel for the petitioner as well as the respondents, dismissed the application. Against the order of dismissal, the present civil revision petition is filed.
5.Heard Mr.J.Barathan, learned counsel for the petitioner and Mr.R.Subramanian, learned counsel for the respondents.
6.The learned counsel for the petitioner argued that it is well settled an unregistered document can be marked and relied on for collateral purpose. He also contended that the Courts cannot reject the documents at the time when the documents is sought to be marked. On the other hand, it has to be marked subject to objection by other party at the time of final decision, the objection has to be considered and the Court has to decide whether the said objection is sustainable or not. Based on such decision, the Court has to pass final orders. For this proposition, the learned counsel for the petitioner relied on the following Judgments:
(i) S.Kaladevi v. V.R.Somasundaram and others [2010 (4) MLJ 526 (SC)], wherein in paragraph 12 it has been held as follows:-
"12. .... This Court then culled out the following principles: "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.
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."
(ii)Bipin Shantilal Panchal v. State of Gujarat and another [AIR 2001 SC 1158], wherein in paragraph Nos.12 and 13, it has been held as follows:-
"12.It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
13.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.)"
(iii)Venkatasubramaniya Chettiar (died) and others v. Perumal Chettiar [2012 (3) CTC 160 (DB)], wherein in paragraph No.19, it has been held as follows:-
"19.In the light of the above principles let us consider the admissibility/evidentiary value to be attached to Ex.B1. Ex.B1-Partition Deed though not registered can be looked into for collateral purpose of division in status and also for considering the nature and character of possession. While the Trial Court erred in declining to look into the contents in Ex.B1- unregistered Partition Deed, in our considered view, the contents of Ex.B1 could be looked into for "collateral purpose" of proving division in status and the subsequent separate enjoyment of the parties. To that extent, the finding of the Trial Court as to the value to be attached to Ex.B1- unregistered document is liable to be set aside."
7.In the Judgment reported in 2010 (1) CTC 27 [Kalaivani @ Devasena and another v. J.Ramu and others], this Court considered all the Judgments on this point and held that an unregistered document can be marked and relied on for collateral purpose. In the said Judgment, in paragraph Nos.23 and 24, this Court has held as follows:-
"23. In the light of the above judgments, let me consider the facts of the present case.
24. A perusal of the document dated 31.3.1973 filed in the typed set of papers would make it very clear that it allotted properties and assets to J. Ramu Chettiar, Minor Vivekanandan and minor Krishnan. No where it discloses that there was a partition previously and the same was being by the Trial Court, it requires registration. This document being an unregistered one can be looked into for collateral purpose only. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law."
8.Per contra, the learned counsel for the respondent argued that the documents to be marked is only a sale deed and not a receipt as alleged by the petitioner. An unregistered sale deed cannot be marked to rely even for collateral purpose. In support of his submission, he relied on the Judgment reported in 2012 (1) LW 469 [S.Lakshmanan v. S.Palani]. According to the learned counsel for the respondent, in the said Judgment, this Court elaborately considered the issue and held that unregistered, unstamped usufructuary mortgage deed cannot be marked and relied on even for collateral purpose.
9.I have considered all the materials on record and the Judgments relied on by the learned counsel for the petitioner as well as the respondents.
10.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 Courts come to the 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.I, 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.
11.In the result, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To The District Munsif-cum-Judicial Magistrate No.I, Usilampatti.