Madras High Court
Aruchamy vs Ramasamy And Chinnaiyan on 4 July, 2007
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. Aggrieved over the fair and decretal order dated 19.04.2006 made in I.A. No. 183 of 2006 in O.S. No. 71 of 2005 on the file of the learned II Additional Subordinate Judge, Coimbatore, the petitioner/third party has filed the present civil revision petition.
2. For the sake of convenience the parties will be referred to as arrayed before the Court below.
3. The case in brief is as follows:
The revision petitioner is a third party in the suit O.S. No. 71 of 2005 filed by the plaintiff against defendants 1 to 3 for the relief of partition and separate possession and to appoint an Advocate Commissioner for the said purpose. The first defendant filed his written statement contending that the suit properties were already divided into two equal shares and the plaintiff and this defendant are in possession and enjoyment of their respective shares and there is no cause of action and the suit is bad for mis-joinder of parties and prayed for dismissal of the suit. Pending suit, the petitioner has filed the present interlocutory application under Section 151 CPC praying permission to receive document dated 05.07.2002, a Panchayat Muchalica, and mark the same as exhibit on the side of the defendants. The Court below after hearing both sides dismissed the said application. Aggrieved over the said order, the petitioner is before this Court.
3. Heard learned Counsel for the petitioner as well as the first respondent and perused the materials available on record.
4. According to learned Counsel for the petitioner a document not registered cannot be considered even for collateral purposes is against the well established principles of law and various decisions rendered by this Court. Further, learned Counsel would contend that as per ambit of Section 31 of Code Civil Procedure, the petitioner has got a right to produce documents in support of his evidence and if such right is curtailed the purpose of summoning a witness under Section 31 would defeat and consequently the ends of justice cannot be met. Mere marking of the document cannot be refused which undoubtedly curtails the right of a person to led evidence in support of his case and therefore, he cannot be thrown at the threshold. Thus the document sought to be marked is only the Panchayat Muchalika and therefore refusing to permit the same has resulted in miscarriage of justice.
5. Per contra, learned Counsel for the respondent would press into service the decision of our High Court reported in (2003) 3 MLJ, 45 Balakrishnan and Anr. v. Chandrasekharan wherein it has been held as follows:
It is settled law that if the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. If the family arrangement is stamped, but not registered, it can be looked into only for collateral purpose. A family arrangement which is not stamped and not registered, cannot be looked into for any purpose, in view of the specific bar in Section 35 of the Indian Stamp Act.
6. Learned Counsel would contend that the said document viz., Panchayat Muchalica, is invalid in law since it is unstamped and unregistered for which he pressed into service the decision reported in 2001 (1) CTC 112 Lakshmipathi A.C. v. A.M. Chakrapani Reddiar wherein the Division Bench after referring to the decisions of various High Courts and the Supreme Court, summed up the legal position in the following way:
42. To sum up the legal position (I) A family arrangement can be made orally.
(II) If made orally, there being no document, no question of registration arises.
(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of which had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties posses.
(VII) If the family arrangement is stamped but not registered, it cannot be looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon fact and circumstances of each case. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act
7. Considering the facts and circumstances of the case, upon hearing the learned Counsel for both sides and upon perusing the materials available on record, I am of the considered opinion that as per the decisions cited supra, I am of the considered opinion that the Court below is right in dismissing the application filed by the petitioner third party for permission to receive the 'Panchayat Muchalica'. I do not find any infirmity in the order of the Court below. Hence, the civil revision petition is liable to be dismissed.
8. In the result, the civil revision is devoid of merits and the same is dismissed. Consequently connected M.P. is also dismissed.