Andhra Pradesh High Court - Amravati

This Revision Is Preferred By The vs "17. It Is To Be Noted That In This ... on 2 August, 2023

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

             Civil Revision Petition No.357 of 2022

ORDER:

This revision is preferred by the petitioners challenging the

docket order, dated 25.01.2022, in O.S.No.157 of 2014 on the file

of the Court of Principal Junior Civil Judge, Mangalagiri.

2. Heard Sri Doddala Yathindra Dev, learned counsel for the

revision petitioners/defendants and Sri Srinivasa Rao Velivela,

learned counsel for the respondents/plaintiffs.

3. The facts, in brief, are that:

The respondents 1 to 3/plaintiffs filed the suit for partition of

the plaint schedule property into nine (9) equal shares and to allot

one such share to the plaintiffs jointly by metes and bounds and put

them in separate possession of the same. Originally, the schedule

property is the ancestral property of Malkapurapu Manmadhudu S/o

Venkatappaiah. Plaintiff No.1 is the son and plaintiffs 2 & 3 are the

granddaughters of Malkapurapu Manmadhudu. Malkapurapu

Manmadhudu enjoyed the schedule property and died intestate.

After his death, the schedule properties devolved on his legal heirs,

viz., plaintiffs and defendants and that they are in joint possession

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and enjoyment. As the defendants failed to cooperate for partition

of the schedule property, the plaintiffs filed the suit for partition.

4. The defendants filed written statement contending that the

plaintiffs and defendants were never in joint possession of the

schedule property at any point of time and the plaintiffs are not

entitled to any share in the schedule property and the defendant

No.12 along with her children including plaintiff No.1 executed a gift

agreement letter/Dhakalu Oppudala Patram, dated 05.04.2022, in

favour of defendant No.13 duly mentioning all the events that lead

to the execution of the said letter and in furtherance thereof, the

defendant No.12 also executed a registered gift deed, dated

07.08.2004.

5. While things stood thus, both the plaintiffs and defendants led

their evidence in the suit. While the suit was coming up for

arguments, the defendants stated to have come to know that the

letter, dated 05.04.2022, was not marked on account of payment of

deficit stamp duty. As such, the defendants filed I.A.No.1575 of

2018 in O.S.No.157 of 2014 under Section 38(2) of the Indian

Stamp Act read with Section 151 CPC to send the letter filed into

the Court along with the chief affidavit of defendant No.13 to the

District Registrar for deciding the deficit stamp duty and for

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impounding the document. However, the trial Court, by order,

dated 07.02.2019, dismissed the said petition.

6. Aggrieved by the order, dated 07.02.2019, passed in

I.A.No.1575 of 2018 in O.S.No.157 of 2014 on the file of the Court

of Principal Junior Civil Judge, Mangalagiri, the petitioners herein

preferred C.R.P.No.1395 of 2019 and this Court, vide order, dated

19.06.2019, allowed the revision petition holding in the operative

portion of the order as follows:

" In the result, the Civil Revision Petition is allowed and the impugned order is set aside and I.A.No.1575 of 2018 in O.S.No.157 of 2014 is allowed directing the trial Court to send the document/instrument in question to the Stamp Duty Collector concerned for ascertaining the nature of the transaction embodied in the document/instrument and collecting deficit stamp duty, if any, & penalty payable on the said instrument. It is made clear that in the event the deficit stamp duty and penalty are paid by the defendants as determined by the stamp duty collector, the trial Court shall then consider the admissibility of the said instrument for any collateral purpose, however, following the precedential guidance of the Supreme Court wherein the word 'collateral purpose' is explained, nonetheless, uninfluenced by the observations on the said aspect, which are already recorded in the order, which is now set aside."

7. In furtherance of the aforesaid order, the petitioners herein

paid the deficit stamp duty and penalty and placed the letter before

the trial Court for marking of the same for collateral purpose.

However, the trial Court, by the impugned order, dated 25.01.2022,

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held that the unregistered 'Oppudala Patram, dated 05.04.2022',

cannot be received in evidence.

8. Aggrieved thereby, the defendant No.1 and 10 to 16 preferred

this revision petition.

9. In the grounds of revision, the petitioners primarily raised the

following grounds:

(i) The order of the Court below is contrary to law and the facts and probabilities of the case;

(ii) Letter, dated 05.04.2022, has created right to obtain registered gift deed, dated 07.08.2004 (exhibit B1) and is thereby excluded from registration under Section 17(2)(v) of the Registration Act, 1908. Any document not creating any right, title or interest, but merely creating right to obtain another document does not require registration under Section 17(2)(v) of the Registration Act, 1908. As such, the observation of the trial Court that the letter cannot be received in evidence is erroneous.

(iii) The trial Court erred in not receiving the letter in evidence construing it to be in the nature of gift deed. It ought to have considered that it reflects only family arrangement/settlement previously arrived at between the parties.

(iv) Even assuming for the sake of arguments that the letter is in the nature of gift deed, it is settled that in a suit for partition, an unregistered document cannot be marked in evidence for any collateral purpose of severance of title,

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conduct of the parties, establishing the petitioners' possession of the schedule property, nature and character of possession and conduct of the parties etc.

10. The chequered history of the case shows that this High Court,

while allowing the revision petition, directed the trial Court to

consider whether the document, dated 05.04.2022, can be received

in evidence for collateral purpose, upon payment of the necessary

stamp duty and penalty, keeping in view the decision of the

Supreme Court in K.B.Saha and sons Pvt. Ltd. V. Development

Consultant Limited1. Accordingly, the stamp duty and penalty

were paid. The dispute is not about the stamp duty and penalty

collected, but the objection is raised against receipt of the document

in evidence on the ground that the document requires registration,

and therefore, the document cannot be looked into for want of

registration which is an incurable defect. It is settled law and not

disputed that the document which requires registration, if not

registered, cannot be received in evidence for the purpose of

establishing the main transaction under the document.

11. Learned counsel for the petitioners contended that except

observing that the document cannot be received in evidence for any

collateral purpose, the trial Court did not make any exercise as to

(2008) 8 SCC 564

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what could be the 'collateral purpose' for which the document can

be received or not. He further submitted that since it is a suit for

partition, the said document can be received in evidence for

collateral purpose of showing severance of the status, nature of

possession and the conduct of the parties which are clearly stated in

the ground of revision as well and he further placed reliance on the

decision in Sita Ram Bhama v. Ram Vatar Bhama 2 and

Korukonda Chalapathi Rao and another v. Korukonda

Annapurna Sampath Kumar3.

12. On the other hand, learned counsel for the respondents 1 to

3/plaintiffs contended that the very pleading of the revision

petitioners/defendants 1, 10 to 16 is that the said document is a gift

deed and the property was given under the said document and

moreover, the amount was also paid to the other defendants and

therefore, it amounts to sale and not gift as contended and that the

revision petitioners intended to rely on the document for the

purpose of transfer of title under the document, and therefore, as

per Section 49 of the Registration Act, the document cannot be

received in evidence. He further contended that there is no

collateral purpose for which said document can be received in

(2018) 15 Supreme Court Cases 130

2021 SCC Online SC 847

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evidence as there is no plea to that effect and in case of a gift,

transfer of title, passing of no consideration and acceptance of the

gift are the main ingredients and none of them can be called as

collateral purpose and except such purposes, no other purpose can

be shown from the said document and as such, the document

cannot be received in evidence. He further submitted that the

petitioners have not shown specifically for what purpose they intend

to use as collateral transaction by virtue of the document.

13. The order of the trial Court shows that emphasis was laid by

the trial Court on examining the admissibility of the document in

evidence for want of registration and no examination was done as

to the purpose for which the document can be taken as proof of

collateral transaction which does not require registration, however,

it made an observation that the document cannot be received even

for collateral purpose, though stamp duty and penalty were paid

and that payment of stamp duty and penalty does not cure the

defect of registration. As such, the order impugned is irregular on

its face.

14. Now, coming to the aspect whether the document can be

received in evidence, as contended by the revision petitioners, it is

apropos to refer the decision of the Supreme Court in Sita Ram

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Bhama (1 supra), wherein it was held at paragraphs No.13 & 14 as

follows:

"13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yellapu Uma Maheswari and Anr. v. Buddha Jagadheeswararao and Ors. [(2015) 16 SCC 787], is appropriate. In the above case also admissibility of documents Ext. B-21 dated 05.06.1975 a deed of memorandum and Ex. B-22 dated 04.06.1975 being an agreement between one late Mahalakshamma, Respondent No. 1-Plaintiff and Appellant No. 1-Defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B-21 and B-22 held that they require registration. In paragraph 15 following was held:

'15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the

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recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged Under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.'

14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context the Court accepted the submission of the Appellant that the documents can be looked into for collateral purpose provided Appellant-Defendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down:

16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v.

Chinnappareddigari Venkata Reddy [AIR 1969 AP 242] has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the Appellant-Defendant want to mark these documents for

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collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B- 21 and B-22 for collateral purpose subject to proof and relevance.

17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy."

15. In Korukonda Chalapathi Rao and Ors. vs. Korukonda

Annapurna (2nd supra), it was held at paragraph Nos.17, 18, 22,

28 & 33 as follows:

"17. It is to be noted that in this regard emphasis is placed by the Appellants on the decision of this Court in Subraya M.N. v. Vittala M.N. (supra). Therein, in regard to the dispute to plaint items 1 and 2 properties, there was D22 resolution passed by the village panchayat signed by the Panchayatdar, Plaintiffs 3 and 4 and Defendant. It was, inter alia, mentioned therein that the Defendant, in whose favour the Plaintiffs 3 and 4 relinquished the rights, had paid Rs. 15,000/- each to the said Plaintiffs. Dealing with the impact of Section 17 and 49 of the Registration Act this Court, inter alia, held: '16. Even though recitals in Ext. D-22 are to the effect of relinquishment of right in Items 1 and 2, Ext. D-22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ext. D-22 panchayat

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resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the Defendant in lieu of relinquishing their interest in Items 1 and 2.(Emphasis supplied)'

18. This view has been also followed in Thulasidhara v. Narayanappa [(2019) 6 SCC 409] Paragraph-9.5 reads as below:

"9.5. As held by this Court in Subraya M.N. v. Vittala M.N., [(2016) 8 SCC 705] even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the Plaintiff has also categorically admitted that the oral partition had taken place on 23-4-1971 and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the Plaintiff that there was an oral partition on 23-4-1971, the document, Ext. D-4 dated 23-4-1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Ext. D-4 dated 23-4-1971.

22. We may notice that in Sita Ram Bhama v. Ramvatar Bhama [(2018) 15 SCC 130], wherein the Appellant and Respondent were brothers, according to the Appellant, a memorandum of settlement as decided by their late father was recorded in regard to his acquired property. The question arose as to whether the settlement was admissible. It is necessary to notice paragraph-10, which reads as under: '10. The only question which needs to be considered in the present case is as to whether document dated 9-9-1994 could have been accepted by the trial court in evidence or the trial court has rightly held the said document inadmissible. The Plaintiff claimed the document dated 9-

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9-1994 as memorandum of family settlement. The Plaintiff's case is that earlier partition took place in the lifetime of the father of the parties on 25-10-1992 which was recorded as memorandum of family settlement on 9-

9-1994. There are more than one reasons due to which we are of the view that the document dated 9-9-1994 was not mere memorandum of family settlement, rather a family settlement itself. Firstly, on 25-10-1992, the father of the parties was himself owner of both, the residence and shop being self- acquired properties of Devi Dutt Verma. The High Court has rightly held that the said document cannot be said to be a will, so that the father could have made the will in favour of his two sons, the Plaintiff and the Defendant. Neither the Plaintiff nor the Defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10-9-1993. After his death, the Plaintiff, the Defendant and their mother as well as sisters become the legal heirs under the Hindu Succession Act, 1956 inheriting the property being a Class I heir. The document dated 9-9- 1994 divided the entire property between the Plaintiff and the Defendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, there is relinquishment of the rights of other heirs of the properties, hence, the courts below are right in their conclusion that there being relinquishment, the document dated 9-9-1994 was compulsorily registrable Under Section 17 of the Registration Act.'

28. In N. Varada Pillai v. Jeevarathnammal [AIR 1919 P.C. 44], the Privy Council Court took the view that though unregistered, the document could be used to explain the nature of the possession of a person. In the said case, in fact, two widows, who were in possession of the property in equal shares applied to the Collector that they had given away the property as Stridhan to a lady and that the orders may be issued for transferring the property to her. The property was so transferred on the basis of the petition. On the question whether the transferee had obtained title by adverse possession while finding the unregistered petition before the Collector could not be admitted to prove a gift, the fact that transferee was

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continuing as a donee and owner was gleaned from the said petition to support the case of adverse possession."

33. Thereafter, the Court also approved of the use of the said document for a collateral transaction and observed as follows:

'11. Even otherwise, the document Exh. P 12 can be looked into under the proviso to Section 49 which allows documents which would otherwise be excluded, to be used as evidence of 'any collateral transaction not required to be effected by a registered instrument'. In Varada Pillai v. Jeevarathnammal, (1919) 46 Ind App 285 : AIR 1919 PC 44 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift 'because no legal title passed' but to prove that the donee thereafter held in her own right. We find no reason why the same Rule should not be made applicable to a case like the present.'

16. The test for collateral purpose can be followed from the

decision of the Supreme Court in the case of K.B.Saha and Sons

Private Limited v. Development Consultant Limited (1 supra).

17. Keeping the above propositions in view, when document in

question in this case is examined, as represented by the learned

counsel for the petitioners and indicated in ground No.4 of the

grounds of revision, referred to supra, it cannot be said that the

document cannot be used for collateral purpose at all. It is

premature to comment about whether the purposes for which the

document intended to be relied on would prove the same or not. At

this juncture, it cannot be said only that the said document can be

received in evidence for the purpose of establishing severance of