C.R.P. No.4476 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2022
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.No.4476 of 2017
and
C.M.P.No. 21135 of 2017
Abdul Aziz,
S/o. Abdul Karim ... Petitioner
Vs.
1. Mohammed Anwar,
S/o. Abdul Khader
2. A.R.Mohammed,
S/o. Abdul Rahman ... Respondents
PRAYER: Civil Revision Petition filed under Art. 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 22.02.2016
passed in I.A.No.429 of 2015 in O.S.No.96 of 2006 on the file of District
Munsif cum Judicial Magistrate, Kattumannarkoil.
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C.R.P. No.4476 of 2017
For Petitioner : Ms.A.Ajimath Begam
For Respondents : Mr.A.Muthukumar for R1
R2 – no appearance
ORDER
The revision petitioner is the plaintiff in the suit in O.S.No.96 of 2006 on the file of District Munsif cum Judicial Magistrate Court, Kattumannarkoil filed the suit against the defendants for the relief of permanent injunction in respect of the suit property stating that as class-2 legal heir of his uncle viz., Mohamed Ismail, he is claiming right over the property. The defendants also contested the suit stating that based upon a class-2 legal heir of Mohamed Ismail, they are also entitled to the suit property.
2. The plaintiff's evidence was over and during the pendency of trial proceedings, the plaintiff filed an application in I.A.No. 429 of 2015 under Sec.17(1)(a) and Section 49 of Indian Registration Act and Sec. 151 of C.P.C. praying to reject the document viz., unregistered gift deed dated 2/7 https://www.mhc.tn.gov.in/judis C.R.P. No.4476 of 2017 14.09.2000, which has not been properly executed with valid stamp paper as well as not marked in the register. So, he want to reject the document. Hence, he filed the said application.
3. The said application was contested by the defendants stating that as per the preposition laid down by the Hon'ble Supreme Court, their document is admissible one and it need not be rejected as prayed by the plaintiff. On hearing both sides, the trial court rightly dismissed the said application stating that as such, is not maintainable in law. Hence, they prayed to dismiss this Civil Revision Petition.
4. Challenging the said findings, the plaintiff preferred this Civil Revision Petition. The learned counsel for Revision Petitioner submitted that the trial court has erred in holding that an unregistered document dated 14.09.2000 can be received as collateral purpose, but, even for collateral purpose, an unregistered document cannot be used, however, the said preposition was not followed by the trial court. Hence, he prayed to set aside the order passed by the trial court.
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5. By way of reply, the learned counsel for respondents/defendants relying upon the judgment reported in 2011 (5) SCC 654, in the case of Hafeeza Bibi and others vs. Shaikh Farid (dead) by LRs. and others, argued that for an unregistered gift deed, the registration is not required under Mohammedan Law. So, the order passed by the trial court is valid one. Therefore, the trial judge has rightly passed an order, which needs no interference.
6. Per contra, the learned counsel for Revision Petitioner submitted that even for the collateral purpose, an unstamped and unregistered document should not be accepted as evidence.
7. Heard and considered rival submissions of learned counsel for revision petitioner and respondents and perused the records.
8. On considering submissions of both sides as well as on seeing the facts of the case, during the pendency of trial proceedings, the said 4/7 https://www.mhc.tn.gov.in/judis C.R.P. No.4476 of 2017 application was filed by the petitioner to reject the document, which is going to be marked on the side of defendants side stating that it is an unregistered and unstamped document, as such is an gift deed, which is inadmissible in law. But, on seeing the facts, so far, the document was not marked on the side of defendants. Furthermore, the learned counsel for respondents submitted that the said document is permissible in law and it is a piece of evidence to prove their case as per the ratio laid down in a judgment reported in 2011 (5) SCC 654, in the case of Hafeeza Bibi and others vs. Shaikh Farid (dead) by LRs. and others. Therefore, on considering the validity of document before the trial court, the defendants are entitled to submit their document, but the plaintiff is having every right to raise objection with regard to the legality of the document and whether the document needs to be marked can be permissible or not is the mixed question of law and facts, it should be decided only at the time of trial. Hence, the order of trial judge as such is maintainable in law. Accordingly, this Civil Revision Petition is dismissed. However, liberty is granted to the revision petitioner/plaintiff to raise his objections with regard to the validity of an unregistered document during the trial. Since the suit is pending from 5/7 https://www.mhc.tn.gov.in/judis C.R.P. No.4476 of 2017 the year of 2006, the trial court is directed to dispose the case within a period of six months from the date of receipt of copy of this order. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
21.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
District Munsif cum Judicial
Magistrate,
Kattumannarkoil.
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https://www.mhc.tn.gov.in/judis
C.R.P. No.4476 of 2017
T.V.THAMILSELVI, J.
rpp
C.R.P.No.4476 of 2017
21.09.2022
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