Madras High Court
Kalimuthu Pillai vs Velusami And Ors. on 17 February, 1997
Equivalent citations: (1997)2MLJ64
ORDER Thanikkachalam, J.
1. This civil revision is filed by the second defendant in the suit against the order passed in I.A. No. 761 of 1995 in O.S. No. 261 of 1993 on the file of the District Munsif, Manamadurai. The suit was filed for declaration of title and possession. In the suit, I.A. No. 761 of 1995 was filed under Order 13, Rule 2 of the Code of Civil Procedure, for admitting two release deeds, dated 31.12.1980 as documents. The first defendant is the maternal uncle of the plaintiff. The second defendant is the son of the first defendant. The third defendant is the daughter of the second defendant. The abovesaid two documents were neither stamped under the Stamp Act nor registered under the Registration Act, even though the documents transfer right in immovable properties. The trial Court, on hearing both the parties, held that these two documents along with other documents are admissible in evidence for the purpose of proving collateral aspects after the stamp duties were paid, with penalties. It is against that order, the present civil revision petition has been preferred by the second defendant.
2. According to the learned Counsel appearing for the petitioner herein the abovesaid two documents marked as Exs. A-4 and A-7 were not stamped and they were also not registered, and therefore they cannot be looked into. It is the case of the petitioner that even though when a document is properly stamped, but not registered, it can be admissible for the purpose of proving collateral incidence. According to the learned Counsel, the trial Court has not looked into Sections 17 and 49 of the Registration Act before ordering the admissibility of these documents.
3. On the other hand, the learned Counsel appearing for the first respondent herein plaintiff submitted that at the time when the documents-were filed before the trial Court they were not stamped and they were also not registered. But with the order of the Court, stamp duties were paid along with penalties, and therefore these documents can be admitted for the purpose of proving collateral aspect. In order to support his contention, the learned Counsel appearing for the first respondent relied upon various decisions. I have heard both the learned Counsel appearing for the petitioner as well as the first respondent.
4. The fact remains that Exs. A-4 and A-7 are the documents, releasing certain rights in certain immovable properties. The subject matter in those release deeds is not the subject matter in the suit. According to the first respondent herein, he wanted to file these documents to show the collateral aspect, viz., that the first defendant, who is his maternal uncle, was looking after his properties and at a later stage, he used to reconvey the same under the release deeds. The suit is not based upon these two documents. A perusal of the two release deeds stated above would go to show that there are endorsements to show that stamp duties were paid and penalties were also paid. If the stamp duties were paid and those documents were not registered it cannot to be said that those documents cannot be admitted to prove collateral aspects.
5. In Sironmani v. Hemkumar the Supreme Court held, while considering the Section 17(1)(b) of the Registration Act that such a document, which is stamped, but not registered, is admissible to prove the intention of the coparceners to become divided in status. So also the Karnataka High Court, in Mariappa v. Thimmegowda A.I.R. 1981 Karn. 121 held after the stamp duty and the penalty were paid, the unregistered document can be admitted for the purpose of proving collateral incidence.
6. In Gulam Hussain v. Additional Rent Controller, Hyderabad , the Andhra Pradesh High Court, while considering the provisions of Sections 35 and 38 of the Stamp Act, held that the Court can levy penalty and duty on party, as a pre-condition to admit such document in evidence.
7. In Kumaraswami Gounder v. Aravagiri Gounder (1974) 1 M.L.J. 413 while considering the provisions of Sections 49 and 17(i)(b) of the Registration Act, a Division Bench of this Court held that an unregistered partition deed could not be admitted in evidence to prove the terms of the partition; it could certainly be admitted in evidence for proving the division in status and the fact of partition.
8. In the case of Hindustran Steel Ltd. v. Dalip Construction Co. A.I.R. 1969 S.C. 736 the Supreme Court held that Section 42(2) of the Stamp Act, which enact in terms unmistakable that every instrument endorsed by the Collector under Section 41(2) shall be admissible in evidence and may be acted upon as if it had been duly stamped.
9. However, the learned Counsel appearing for the first respondent relied upon the decision of this Court in Rajamanickam and three Ors. v. Elangovan and four Ors. (1985) 1 C.T.C. 541 wherein this Court, while considering the provisions of Section 49 of the Registration Act and Section 92 of the Evidence Act, held that unstamped and unregistered partition deed filed to establish partition and allotment of properties, cannot be received and admitted in evidence. The document has to be stamped and registered. This judgment was rendered on the facts arising in that case where in the document, which was relied upon by the party, as neither stamped for registered, that was not the case here. As per the order of the trial Court, the plaintiff paid the stamp duties as well as the penalty, and therefore the documents could be deemed to be written in a proper stamp paper. The documents are not registered. Therefore, no suit can be filed on the basis of the documents. In fact, the suit was not filed on the basis of these documents. These documents were required, according to the first respondent herein, for the purpose of proving the collateral aspect of the managment of the properties by his maternal uncle. Therefore, inasmuch as the order passed by the trial Court is in conformity with the provisions of Section 42(8) of the Stamp Act, I consider that there is no infirmity in the order passed by the trial Court. Accordingly, this civil revision petition is dismissed. No costs.