Madras High Court
Jayam vs Minor Sugumari on 16 February, 2009
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16..02..2009
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.R.P. (P.D.) No.769 of 2008
and M.P.No.1 of 2008
Jayam ... Petitioner
Vs
1. Minor Sugumari
rep by her mother and
next friend Parimala
2. Parimala
3. Duraikannu
4. Karpagam
5. Jayalakshmi
6. Minor Meena
7. Minor Devi
(6 and 7 rep. by mother
and guardian Jayalakshmi ... Respondents
Civil Revision Petition filed under Article 227 of Constitution of India against the fair and decretal order dated 10.01.2008 passed in I.A.No.2098 of 2007 in O.S.No.236 of 2004 on the file of the District Munsif at Poonamallee.
For Petitioner : Mrs. AL. Ganthimathi
For Respondents : Mr. S. Siva Shanmugam
O R D E R
The petitioner is fourth defendant in a suit filed by the first and second respondents for partition and separate possession of their 1/4th share in the suit "C" Schedule properties by metes and bounds and also for a permanent injunction restraining the defendants from interfering with their joint possession and enjoyment. The petitioner filed written statement, necessary issues were framed, the case was taken up for trial and the plaintif's witnesses were also examined. At the stage of examination of this petitioner, he filed an application in I.A.No.2098 of 2007 under Order 8, Rule 3A(3) and Section 151 of C.P.C to condone the delay in producing documents filed along with the petition. He has enumerated the particulars of documents, in which, the eighth document is Koorchit, which is unregistered and unstamped. In the affidavit, he has also alleged that the second respondent has given to him two power of attorney deeds dated 25.05.1994 and 28.06.1994, empowering him to sell certain properties and accordingly he sold them. Hence the documents may be received in evidence.
2. In the Counter filed by the 3rd defendant, it is stated that the petitioner cannot mark the documents which are in variance with the pleadings. The petitioner has cleverly chosen not to divulge anything about the 8th document he intends to mark in his affidavit, which misleads the Court. It is settled law that an unregistered document, being a compulsorily registrable one under Section 17(i)(b) of Indian Registration Act (hereinafter referred to as "Act") cannot be received as evidence at all under Section 49 of the Act. Since the said proposed eighth document severs the relationship of the parties therein and clothes them with distinct and separate title in respect of the property mentioned therein and thereby operates to create title in the parties therein viz, the principals of the petitioners, they cannot be admitted and the application comes at a very belated stage. There is no sustainable reason for the delay in filing the worthyless documents. Hence the petition has to be dismissed.
3. The learned District Munsif, Poonamallee, after examining the contention of the parties passed an order receiving documents 1 to 7 and rejected the document No.8 Koorchit. Aggrieved against the order of such rejection, the petitioner is before this Court. As far as documents No.1 to 7 are concerned, there has been no revision. As for 8th document, it is the contention of the petitioner/4th defendant that it should have been received by the Court below subject to proof and relevancy since the unregistered and unstamped Koorchit is to be admitted in evidence for collateral purpose and that his case could be considered only if all the documents were marked and considered and this document cannot be rejected.
4. The learned counsel for the petitioner Mrs.AL. Ganthimathi would submit that inasmuch as the document No.8, is an unregistered and unstamped koorchit, it could be admitted in evidence by permitting the petitioner to pay the stamp duty penalty and then it is for the Court to decide the validity of the document to see the collateral purpose, it should have been entertained by the Court below and the rejection of the same is unsustainable.
5. Per contra, learned counsel for the respondent Mr. Siva Shanmugam would submit that by virtue of the Koorchit itself, the parties to it, divided the properties, which purports to create their right and interest in the properties, it is compulsorily registrable and by means of non-registration, no question of payment of stamp duty penalty would arise and it is well settled that such document could not be relied upon for any purpose.
6. Before entering into the discussion, it is profitable to extract the relvant recitals in the unstampted and unregistered Koorchit (Partition Deed) dated 18.10.1987, which is as follows:
**jw;nghJ eh';fs; jdpj;jdpahf gpupe;J FLk;gk; elj;jp tUtjhYk;. v';fSf;Fs; Vw;gl;l FLk;g rr;rutpd; fhuzkhf fPnH ifbahg;ggk; bra;Js;s g";rhaj;Jjhuu;fs; Kd;dpiyapy; ghfk; gpupj;Jf; bfhs;tjhf xg;g[f;bfhz;L ,d;W ghfg;gpuptpid gj;jpuk; vGJtjhf xg;g[f;bfhz;nlhk;/** **,e;jg;gof;F ehk; ,UtUk; fPnH ifbahg;gk; bra;Js;s g";rhaj;jhuu;fs; Kd;dpiyapy; ,e;j ghfg;gpuptpid Tu;rPl;L gj;jpuj;jpy; ifbaGj;J bra;J ghfk; gpupj;Jf; bfhz;nlhk;/**
7. It is the main stress on the part of the petitioner that even though it is not registered, on payment of stamp duty penalty, the document may be utilised for collateral purpose i.e., the subsequent possession of the second defendant. As per Section 35 of Indian Stamp Act, unless a document, produced without having paid the stamp duty, is duly stamped, it cannot be admitted in evidence. Section 35 of the Act goes thus:
"Section 35 of Indian Stamp Act - Instrument not duly stamped inadmissible in evidence, etc., - No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped."
8. A Division Bench of this Court in a decision reported in 2001 (1) CTC 112 [A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar and five others] had an occasion to deal with the subject on the strength of Sections 17, 35 and 49 of the Registration Act, Section 35 of the Indian Stamp Act, judicial pronouncements of the Apex Court and this Court. Concluding the Judgment, the learned Judges have formulated principles on the basis of thorough scrutiny of the relevant factors, which are as follows:
"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 if 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 Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what 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 possess.
(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not 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.
9. It is the consistent view of this Court that a family agreement which is compulsorily registrable, if not registered, can be looked into by the Court for collateral purposes and if a family arrangement which is compulsorily registrable, is not stamped, then the same cannot be looked into for any purpose including for collateral purposes.
10. Hence, in the case on hand, it is to be seen whether the Koorchit is compulsorily registrable. The answer would be in the affirmative for the reason that by means of this document, the parties have intended to partition the properties and there is no recital nor reference as to earlier negotiations or arrangements of division between them as to the family properties. In case, if the koorchit contains a provision that in order to bring on record the earlier partition or division among the members of the family by means of the written koorchit, subsequently reduced to writing, it can be safely concluded that the document need not be registered. But inasmuch as the document itself creates division of interest in respect of specific items or portions of the family properties available to each of the member of joint family, the necessary corollary would be, it should have been registered. Non-registration of this document in this regard, lead to make it as illegal.
11. When a family arrangement, viz., Koorchit is compulsorily registrable which is not stamped then the same cannot be looked into for any purpose, including for collateral purposes as observed in para 34 of the decision aforementioned.
12. Reliance was placed upon another decision of this Court in 2007 (5) CTC 77 [Dinakaran v. Venkatesan and Others], in which, this Court has dealt with Section 35 of the Stamp Act and held that even though the Koorchit is unregistered and not stamped, it could be admitted in evidence on payment of stamp duty penalty.
13. In 2007 (5) CTC 444 [Ranganatha Giramani v. Visalatchi and others], this Court has observed that no document shall be admitted in evidence, if it is not properly stamped and if already not stamped, then stamp duty should be paid with penalty as prescribed by authority.
14. Learned counsel for the respondents would draw attention of this Court to a decision in 2000 (II) CTC 574 [Duraipandian v. Tamiljothi and 3 others] in which it is held that if the unregistered partition deed shows that records only past transaction and decision has already taken place on the basis of panchayat, the document does not require registration.
15. The learned Judge has followed a decision of the Supreme Court in 1996 (9) SCC 370 [Bakhtawar Singh v. Gurudev Singh] wherein the Supreme Court has referred its another earlier decision in AIR 1988 SC 881 = 1988 (2) SCR 1106 [Roshan Singh v. Zile Singh] in which it was held that a subsequent memorandum recording past oral partition as a family settlement was not required to be registered. In view of the decision of the Apex Court, if the division of status and possession is created pursuant to the oral partition by means of an unregistered deed of partition, it need not be registered.
16. In 2003 (4) SCC 161 [Bondhar Singh and others v. Nihal Singh and others] the Supreme Court has held that unregistered and unstamped sale deed could be received in evidence for collateral purpose, even though they are not admissible in evidence.
17. The learned counsel for the petitioner placed strong reliance upon recent Judgment of the Apex Court in 2008 AIR SCW 4829 [M/s. K.B. Saha and Sons Pvt. Ltd., v. M/s. Development Consultant Ltd.,] in which Their Lordships have referred to earlier decisions of the Supreme Court and formulated principles clarifying what is the collateral purpose, after holding that such documents could be relied upon for collateral purpose. The operative Portion of the Judgment goes thus:
"21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered 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."
In the above said Judgment the Supreme Court has referred to the following other Judgments :-
i) AIR 1989 SC 1806 [Bajaj Auto Limited v. Behari Lal Kohli]
ii) AIR 1991 SC 747 [Rai Chand Jain v. Chandra Kanta Khosla]
iii) 1969 (1) UJ 86 SC [Rana Vidya Bhushan Singh v. Ratiram]
18. The aspect for which registration is required by law, cannot be stated to be a collateral purpose, as per Supreme Court and the documents could not be utilised to establish those facts. If the collateral purpose is for showing some other features which are not expected by law to be registered, then they can be termed to be collateral purpose and for that purpose the court could admit the document and rely upon the same and then to proceed with the adjudication of the case. It is settled that an unstamped and unregistered document could be relied upon for a collateral purpose and as clarified by the Supreme Court, the collateral purpose should not be the one for which registration is called for by the statute. It is also observed that if the document is not compulsorily registrable and remains unstamped one, then it is for the Court to rely upon after payment of the stamp duty penalty as per law.
19. In the light of the observations made and findings obtained, following the illuminating judicial pronouncements of the Apex Court, it is held that the Koorchit, being an unstamped and unregistered document which is intended to establish the right of the party in an immovable property, is not admissible for evidence and the order impugned passed by the learned District Munsif does not suffer from any illegality and infirmity, which deserves to be confirmed and accordingly it is confirmed.
20. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P. is also dismissed.
16..02..2009
Index : yes
Internet : yes
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To
The District Munsif
Poonamallee.
S. PALANIVELU,J
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Pre-Delivery Order in:
C.R.P.(PD).No.769 of 2008
and M.P.No.1 of 2008
DATED : 16..02..2009