Madras High Court
Viji @ Vijya Shree vs Selvaraj on 15 February, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
C.R.P.(P.D).No.3358 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(P.D).No.3358 of 2016
and C.M.P.No.17156 of 2016
1.Viji @ Vijya Shree
2.Swaminathan ...Petitioners
Vs.
1.Selvaraj
2.Narayana Sami Pillai (died)
3.R.Bhuvaneshwari
4.R.Amudha ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decretal orders passed in I.A.No.117 of
2016 in O.S.No.34 of 2015 dated 02.09.2016 on the file of the Court of
Additional Sub-Ordinate Judge, Mayiladuthurai.
For Petitioners : Mr.A.Muthukumar
For Respondents : Mr.S.Sounthar for R1
R2 to R4-Notice served-NA
1/10
https://www.mhc.tn.gov.in/judis/
C.R.P.(P.D).No.3358 of 2016
ORDER
This Civil Revision Petition is arising out of the fair and decretal orders passed in I.A.No.117 of 2016 in O.S.No.34 of 2015 dated 02.09.2016 on the file of the Court of Additional Sub-Ordinate Judge, Mayiladuthurai, thereby allowed the petition to receive the document dated 11.03.2013 and impound the same.
2.The petitioners are the defendants. The 1st respondent is the plaintiff. 1st respondent herein filed a suit for declaration and recovery of possession in respect of the suit schedule property. While pending the suit, the petitioners filed a petition in I.A.No.117 of 2016 to receive the release deed dated 11.03.2013 and impound to mark the same.
3.The learned counsel for the petitioners would submit that the suit has been filed for declaration and recovery of possession. While at the stage of part heard of the suit, the petitioners filed a petition to receive the document dated 11.03.2013 executed by one Balamurugan. The respondents does not have any proprietary right over the properties through 2/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 the said documents and the said Balamurugan was neither a co-owner nor a co-sharer for the properties and that therefore he cannot execute any release deed in respect of the suit property. Further in the very same document itself, he transferred the entire right of the property and therefore by a unregistered deed of conveyance cannot be received in evidence for any purpose. In support of his contention, he relied upon the Judgments:-
(i) in the case of Ammamuthu Ammal (Died) and others Vs. Devaraj and others reported in (2011) 5 MLJ 15,
(ii) in the case of D.Srinivasan and others Vs. D.Chairman and others reported in 2013 (4) CTC 145,
(iii) in the case of A.Devasikamani Goundar Vs. M.A.Andamuthu Goundar and others reported in 1955 (1) MLJ 457.
4.Per contra, the learned counsel for the 1st respondent would submit that the document dated 11.03.2013 is a release deed by relinguishing the share of one Balamurugam and it can be received as a evidence for collateral purpose. In fact, the trial Court allowed the petition on condition that it can be received as evidence on payment of stamp duty 3/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 and also with objections. The document can be decided only at the time of conclusion of trial and therefore prayed for dismissal of the Civil Revision Petition.
5.Heard Mr.A.Muthukumar, learned counsel for the petitioners and Mr.S.Sounthar, learned counsel for the 1st respondent.
6.The petitioners are the defendants in the suit filed by the 1st respondent for declaration and recovery of possession in respect of the suit schedule property. While the trial is in progress, the 1st respondent filed a petition to receive the document dated 11.03.2013 and impound to mark the same.
7.Admittedly, it is a unregistered deed. On perusal of the document dated 11.03.2013, one Balamurugan released his right over the said property to the 1st respondent herein. In this regard, the learned counsel for the petitioners would submit that the issue regarding admissibility of document in question is an unregistered partition deed and 4/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 it cannot be post cost. In support of his contention, he relied upon the Judgment in the case of A.Devasikamani Goundar Vs. M.A.Andamuthu Goundar and others reported in 1955 (1) MLJ 457, and this Court has held that in so far as the document in question did not purport to divide the properties not agree to divide the properties, it did not fall within Section 2 (15) of the Indian Stamp Act. If an objection is taken to the admissibility of a document for want of Stamp and registration, it is the duty of the Court to decide both the questions at once. If the Court finds that the document is unregistered, when it requires registration, it has to reject the document itself. It cannot ask the document to be stamped first and thereafter decide whether it would require registration. In the case on hand, admittedly the document which is sought to be impounded is a unregistered one. Therefore, above Judgment is squarely applicable to the case on hand. In so far as the reception and admissibility of the document the learned counsel for the petitioners rely upon the Judgment in the case of Ammamuthu Ammal (Died) and others Vs. Devaraj and others reported in (2011) 5 MLJ 15, and this Court has held as follows:-
"12.A mere perusal of the above precedents 5/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 would unambiguously and unequivocally, palpably and pellucidly highlight and spotlight the fact that if the recitals in the document do display and demonstrate, express and expatiate that transfer in immovable property was intended to be effected by the deed, then Section 17 of the Indian Registration Act would squarely be attracted.
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14.A mere poring over and perusal of the aforesaid extract would axiomatically and obviously point out that the plaintiff-Ammamuthu Ammal purportedly and allegedly intended to transfer all her rights in the suit properties, which are immovable properties. No doubt, there is some reference to previous Panchayat, but it is not in the form of recording the minutes of the Panchayat and it does not encompass any family arrangement.
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21.It is ex facie and prima facie clear that the trial Court misdirected itself by construing that by establishing collateral purpose, the defendants would be able to succeed in the litigation initiated by the plaintiff. Here the crucial and vital point is to find out whether as per Exhibit B-13 the defendants could claim that the plaintiff released her share in the suit properties and mere 6/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 proving the nature of possession etc, i.e., the collateral purpose would not ensure to the benefit of the defendants. The concept 'collateral purpose' has been dealt with in various decisions, with which at present this Court is not concerned.
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25.It is therefore crystal clear that the Courts below misdirected themselves and applied the wrong proposition of law and held as though Exhibit B-13 is a valid piece of document and decided the lis, warranting interference in the second appeal."
and in the case of D.Srinivasan and others Vs. D.Chairman and others reported in 2013 (4) CTC 145. Relevant portion is extracted hereunder:-
"24.In view of the law on this point above stated, it ought to be held that a document which creates or extinguishes right by itself would call for payment of sufficient Stamp duty and due registration under the Stamp Act and the Registration Act. If the document is not stamped or insufficiently stamped or not registered, such document is inadmissible in evidence and it could not be relied upon by the Court for any collateral purpose. Hence, the document cannot be 7/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 allowed to be marked in evidence. In such a view of the matter the order passed by the Trial Court needs no interference which deserves to be confirmed and accordingly it is confirmed. The Revision is devoid of merits, which suffers dismissal. The point is answered as indicated."
8.This Court has held that if the document is not stamped or insufficiently stamped or not registered, the said document is inadmissible in evidence and it could not be relied upon by the Court for any collateral purpose. In the case on hand, the document which is sought to be marked, creates a right by itself and as such it would call for appointment of sufficient stamp duty and due registration registration act. On perusal of the recital of the said documents would show that as well as filed affidavit in support of the petition revealed that based on the said deed, the respondent acquires title over the property. It also administered that the transfer of immovable property. Therefore, Section 17 of the Indian Registration Act, would squarely be attracted. Therefore, the Court below applied the wrong preposition of law and held as the document dated 11.03.2003.is valid peace of document and that the document dated 11.03.2003 can be allowed to be 8/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 marked with objections with stamp duty as such it warrants interference of this Court and accordingly the order made in I.A.No.117 of 2016 dated 02.09.2016 is illegal and liable to be set aside.
9.In fine, this Civil Revision Petition is allowed and the order dated 02.09.2016 in I.A.No.117 of 2016 in O.S.No.34 of 2015 is set aside. No costs. Consequently connected miscellaneous petition is closed.
15.02.2021 Index:Yes/No Speaking Order: Yes/No Jer To The Additional Sub-Ordinate Judge, Mayiladuthurai. 9/10 https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.3358 of 2016 G.K.ILANTHIRAIYAN.J, Jer C.R.P.(P.D).No.3358 of 2016 and C.M.P.No.17156 of 2016 15.02.2021 10/10 https://www.mhc.tn.gov.in/judis/