Andhra HC (Pre-Telangana)
Smt. Bolleddula Lakshmi Devi vs Bolleddula Papanna And Ors. on 10 March, 2003
Equivalent citations: 2003(3)ALD50, 2003(3)ALT513
JUDGMENT V. Eswaraiah, J.
1. The petitioner herein is the plaintiff in O.S. No. 94 of 1991 on the file of the learned Senior Civil Judge, Nandyal. The said suit is filed for partition and separate possession of the petitioner's share in the suit schedule properties.
2. It is evident from the record that when DW1, during his examination-in-chief, filed an insufficiently stamped and unregistered partition deed dated 22-3-1981 to receive the same as evidence by marking it as an exhibit, the petitioner-plaintiff took an objection for marking of the same. In the circumstances, the learned Senior Civil Judge passed the docket order dated 31-7-2001 admitting the said document into evidence, which reads as under:
"After hearing the arguments of both sides, the partition deed which is unstamped and unregistered document though it is unregistered document and can be conferred on the status of admissibility upon the said document.
So, the document which is an unregistered partition deed cannot be admissible in evidence, but it can be looked into for the collateral purpose for the limited purpose and also to show the severance of the status of the parties.
Accordingly, the document can be admitted for the collateral purpose to show the intention of the parties and severance of the status at the time of the partition."
3. The petitioner-plaintiff filed an application in I.A. No. 188 of 2001 under Section 114 and Order XLVII, Rule 1 of the Code of Civil Procedure seeking to review the said order dated 31-7-2001.In the said application it is stated that when the DW1 wanted to admit the said partition deed dated 22-3-1981 as evidence by marking it as an exhibit, the advocate for the petitioner-plaintiff raised an objection for marking of the same on the ground that the said document is not sufficiently and properly stamped and it is also not a registered one. It is further stated that the said document has been executed on a stamp paper of the value of Rs.5-40 paise, but as per Article 40 of Schedule I-A of the Indian Stamp Act, the said partition deed has to be executed on a stamp paper the value of which should correspond to 3% of the value of the properties of the outgoing shareholder. It is also stated that by virtue of Section 35 of the Indian Stamp Act, the document, which is not stamped or properly stamped, cannot be used in a Court of Law for any purpose. It was further stated that the document in question is compulsorily registerable under Section 17 of the Registration Act and, therefore, on account of non-registration, the said document cannot be received in the evidence. It is categorically stated that unless the said document is properly stamped, it cannot be received in evidence even for collateral purpose.
4. The said review application has been dismissed by the learned Senior Civil Judge by his order dated 24-8-2001.The operative portion of the said order is as follows:
"In this review petition there is no such circumstances happen as the document is insufficiently stamped. But that fact is considered by this Court and the order was passed. Hence no new facts are arised in this review petition. Hence this petition is dismissed."
5. Aggrieved by the said order dated 24-8-2001, this Civil Revision Petition is filed by the petitioner-plaintiff.
6. A perusal of the docket order dated 31-7-2001 and the order passed in the review application dated 24-8-2001 clearly goes to show that the petitioner-plaintiff has raised an objection at the time of marking of the document itself that the said document is insufficiently stamped and unregistered and, therefore, the same cannot be received in evidence even for collateral purpose. In the docket order dated 31-7-2001 it is noticed by the learned Senior Civil Judge that the partition deed was unstamped and unregistered. But contrary to the same, in the order dated 24-8-2001 made in I.A. No. 188 of 2001the learned Senior Civil Judge states that there is nothing on record to show that the document is insufficiently stamped. It is further stated that the objection of the petitioner-plaintiff that the document in question is insufficiently stamped is considered by the Court and passed the docket order dated 31-7-2001 and therefore no new facts arise in the review petition. Every sentence of the operative portion of the order made in review application dated 24-8-2001 is incorrect and contrary to the record. Admittedly, the said document in question is insufficiently stamped. Under Section 35 of the Indian Stamp Act, an instrument not duly stamped is inadmissible in evidence unless such instrument is duly stamped. Though the petitioner-plaintiff raised an objection that the said document was insufficiently stamped and inadmissible in evidence under Section 35 of the Indian Stamp Act, the Court below failed to decide the said issue in the earlier order dated 31-7-2001. The Court below though noticed the objection of the petitioner that the said document was unstamped, but failed to decide the said issue. But when the review application has been filed by the petitioner-plaintiff seeking to review the said order dated 31-7-2001, it is surprisingly observed by the Court below that no new facts arise in the review petition.
7. Under Order XLVII Rule 1 of the Code of Civil Procedure, if there is any mistake or error apparent on the face of the record or for any other sufficient reason, a review application is maintainable. The aforesaid facts clearly disclose that the Court below has failed to consider the objection raised by the petitioner-plaintiff while passing the docket order dated 31-7-2001. I am of the opinion that non-consideration of the said objection is a mistake on the part of the Court below. Obviously, there is a mistake on the part of the Court below in not deciding the objection raised by the petitioner even though it was specifically pleaded and objected that the said document was not stamped, in the sense, it was insufficiently stamped and inadmissible in evidence under Section 35 of the Indian Stamp Act. If any new facts are raised in the review application, the review cannot be entertained. But the Court below without properly understanding the facts and without any proper appreciation of law, dismissed the review application filed by the petitioner-plaintiff.
8. In the circumstances, the order under revision is set aside. The review application in I.A. No. 188 of 2001 in O.S. No. 94 of 1991 on the file of the learned Senior Civil Judge, Nandyal filed by the petitioner-plaintiff stands allowed. It is declared that the partition deed dated 22-3-1981, which is insufficiently stamped and unregistered is inadmissible in evidence, unless the stamp duty and penalty is paid.
9. It is, however, open for the respondents-defendants to get the said instrument impounded to receive the same in evidence under Section 35 of the Indian Stamp Act for collateral purpose under proviso to Section 49 of the Registration Act, 1908.
10. The Civil Revision Petition is accordingly allowed. No order as to costs.