Andhra HC (Pre-Telangana)
T. Arthi vs K. Anand Reddy And Ors. on 6 June, 2006
Equivalent citations: AIR2006AP335, 2006(5)ALD1, AIR 2006 ANDHRA PRADESH 335, 2006 (5) ABR (NOC) 773 (NCC), 2007 (1) AJHAR (NOC) 154 (AP), 2007 A I H C (NOC) 12 (AP), (2006) 47 ALLINDCAS 343 (AP), 2006 (5) ANDH LD 1, (2006) 44 ALLINDCAS 544 (SC), (2006) 4 CIVILCOURTC 5, (2006) 101 REVDEC 740, (2006) 5 ANDH LT 42, (2007) 1 CURCC 196, (2007) 2 LANDLR 345, (2006) 3 ALLMR 159 (SC)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Plaintiff in O.S. No. 37 of 2004 on the file of the Senior Civil Judge, Puttur, filed this revision. She feels aggrieved by the order dated 31-3-2006 passed by the trial Court, overruling her objection as to the admissibility of an unregistered relinquishment deed.
2. The petitioner filed the suit against the respondents herein for the relief of partition and separate possession of the suit schedule property. The relation of the parties to the suit was not disputed. However, the respondents pleaded that the petitioner executed a relinquishment deed dated 25-5-1994, giving up her right in two items viz., land in Sy.Nos. 127/lA and 128, after receiving a sum of Rs. 50,000/-. They urged that the petitioner is not entitled for any share in the said items of property.
3. The trial Court framed necessary issues, and the trial of the suit commenced. The evidence on behalf of the petitioner was closed. During the course of evidence, on behalf of the respondents herein, the document dated 25-5-1994 was sought to be relied upon. The petitioner raised an objection as to its admissibility on the ground that it is not registered. The respondents raised a twofold plea. According to them, once the document became part of the record, when it was filed through affidavit, in lieu of chief-examination, it is impermissible for the petitioner to raise an objection, in view of the bar contained in Section 36 of the Indian Stamp Act (for short 'the Stamp Act'). The second was that a relinquishment deed executed by one coparcener in favour of another, does not need registration. After hearing both the parties, and by undertaking extensive discussion, the trial Court overruled the objection raised by the petitioner, and held that the document can be received in evidence.
4. Sri K.S. Gopala Krishnan, learned Counsel for the petitioner submits that Section 17(1)(b) of the Indian Registration Act (for short 'the Registration Act') mandates that any document, which has the effect of creating or taking away the rights in respect of an immovable property, must be registered, and Section 47 of the said Act places bar on the admissibility of unregistered documents, which deal with transactions that are required to be registered, under Section 17(1)(b). He contends that the fact that the petitioner is a coparcener, hardly makes any difference, as long as the document had the effect of obliterating her rights. He further submits that the fact that a document was presented along with the affidavit, in lieu of chief-examination, cannot lead to the situation of the Court receiving it in evidence, and thereby, Section 36 of the Stamp Act, does not get attracted.
5. Sri A. Ramakrishna Reddy, learned Counsel for the respondents, who filed caveat, on the other hand, submits that the petitioner did not dispute the factum of receiving consideration or execution of the said document, and being the one, evidencing an arrangement within the family, it does not need registration. He further contends that the petitioner did not raise any objection, when the document was filed along with the affidavit, in lieu of chief-examination.
6. From the submissions of the learned Counsel for the parties, two questions arise, viz., (1) whether Section 36 of the Stamp Act gets attracted to the facts of the case, and (2) whether the relinquishment deed dated 25-5-1994 is admissible in evidence.
7. Section 36 of the Stamp Act mandates that once a document is received in evidence, an objection as to any defect in payment of stamp duty etc., cannot be entertained at a later point of time. Pressing this provision into service, the respondents contend that the document in question has already become part of record, and no objection can be raised at a subsequent stage.
8. Two aspects need to be taken into account in this regard. The controversy in the instant case is, not much about the adequacy or otherwise of the stamp duty, but in relation to the registration. In many cases, any defect, as to payment of stamp duty, can be cured, either by the Court itself or by the concerned revenue authority, in accordance with the provisions of the Stamp Act. Registration is, however, an aspect, which cannot be cured during the pendency of the suit. Since the controversy in this case is about registration, Section 36 of the Stamp Act, hardly becomes relevant.
9. The second aspect of the matter is that a document can be said to have been received in evidence, if only the Court had an occasion to address itself, to the admissibility of the document, and a mark of exhibit was assigned to it. It used to be the common practice, till recently, that, documents relied upon by the concerned parties are introduced during the course of chief-examination of the witness. The opposite party would have an opportunity to oppose introduction of the document, even during the course of chief-examination of the witness, and the Courts used to resolve the controversy at that stage itself. Through Act 22 of 2000, the Parliament amended CPC, providing for filing of affidavits of the witnesses, in lieu of chief-examination. Any reference to documents in the affidavits or enclosure of the documents along with such affidavit, is an act squarely attributable to the party, on whose behalf the witness is sought to be examined. Neither the other party would have an occasion to raise any objection, nor the Court would be in a position to apply its mind as to the admissibility of the document, at that stage. The actual consideration, in this regard, would take place only when the concerned witness is subjected to cross-examination.
10. The ad hoc and provisional identification mark, if any, given to a document, when it was presented along with an affidavit, in lieu of chief-examination, cannot be treated as a step taken by the Court, receiving it in evidence. Therefore, the opposite party would certainly be entitled to raise an objection at the stage of cross-examination. In such an event, Section 36 of the Stamp Act does not get attracted. The reason is that till that point of time, the document cannot be said to have been received in evidence. Hence, the contention raised by the respondents in this regard cannot be countenanced.
11. Coming to the second question, there is no controversy that the recitals of the document clearly indicate that it is a deed of relinquishment. The proof of the contents is a separate aspect. Since the relinquishment is in respect of an item of immovable property, the document requires registration under Section 17(1)(b) of the Registration Act. The relationship of the parties to the documents does not have any bearing on the requirement as to registration.
12. The trial Court placed reliance upon the judgment of this Court in Ramakrishna Naidu v. Hart Prasad 1982 (1) ALT 379, and held that the relinquishment of a share of a coparcener does not require any registration. The document, which was the subject-matter of the judgment, referred to above, is not comparable to the one, in the instant case. In that case, a release deed was executed by a party, giving up his right to get a sale deed executed, in pursuance of a decree, on receiving a sum of Rs. 1,000/-. An important fact that was taken note of by this Court was, that the decree, referred to in the document, itself was not conclusive as to the right of the party, who executed the said document. It was found that, when the transaction was not in relation to any definite item of property, the question of extinguishing the right, in relation to immovable property did not arise, and thereby, Section 17(1)(b) of the Registration Act does not get attracted. Such is not the case here.
13. The petitioner is said to have relinquished her share in a definite item of immovable property, on receiving consideration. Therefore, the transaction was compulsorily registerable. Since it was not registered, the document is inadmissible in evidence. It is a different thing that it can be relied upon, for collateral purposes.
14. Therefore, the C.R.P. is allowed, and the order under revision is set aside. There shall be no order as the costs.