Madras High Court

Muthukumarasamy vs Gunasekaran on 2 December, 2021

                                                                                  CRP.PD.No.770/2019




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 02.12.2021

                                                           CORAM:

                                      THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                         CRP.PD.No.770/2019 & CMP.No.5085/2019

                                                       [Hybrid Mode]

                    Muthukumarasamy                                                    .. Petitioner

                                                              Vs.

                    1.Gunasekaran
                    2.Kumar
                    3.Ramesh                                                     .. Respondents

                    Prayer:- Civil Revision Petition filed under Article 227 of the Constitution
                    of India to set aside the order dated 03.12.2018 made in IA.No.589/2018 in
                    OS.No.315/2012 on the file of the learned District Munsif, Jayankondam.

                                         For Petitioner             :   Mr.M.Senthil Vadivu
                                         For Respondents            :   No appearance

                                                           ORDER

(1) This Civil Revision Petition is directed against the order dated

03.12.2018 made in IA.No.589/2018 in OS.No.315/2012 on the

file of the Court of District Munsif, Jayamkondam.

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(2) Despite service of notice on the respondents and printing of the

names of the respondents in the cause list today, none of them has

appeared.

(3) The Revision Petitioner is the plaintiff in the suit in

OS.No.315/2012 and the said suit is filed for permanent injunction

restraining the defendants from interfering with the peaceful

possession and enjoyment of the suit property.

(4) Revision petitioner and the respondents are brothers. It is the

specific case of the revision petitioner/plaintiff in the plaint that the

suit property originally belonged to one Saraswathi, mother of the

revision petitioner and the respondents/defendants as well as one

Ranganathan and Saminathan. It is stated in the plaint that there

was an oral partition among the sons of the said Saraswathi

including the revision petitioner and the respondents and the said

partition was also recorded subsequently by executing a Partition

List dated 20.10.2010 signed by all the parties.

(5) During the pendency of the suit, the plaintiff filed IA.No.589/2018

seeking permission to pay stamp duty and penalty and to mark the

CRP.PD.No.770/2019

unstamped document. The petitioner undertook to pay the stamp

duty and penalty in respect of the said document and thereafter,

proposed to mark the said document as evidence on the plaintiff's

side.

(6) The said application was dismissed on the ground that the

document which is sought to be marked is neither stamped nor

registered.

(7) The law is well settled that a document which is neither stamped

nor registered is not admissible even for any collateral purpose.

However, the plaintiff has come forward to pay the stamp duty and

penalty and therefore, the document can be impounded and it is

open to the Court to rely upon the said document after payment of

stamp duty and penalty as if the said document is duly stamped. If

the document is impounded and duly certified as stamped, there is

no difficulty in admitting the document for collateral purpose as

contemplated under Section 49 of the Indian Registration Act.

(8) The Hon'ble Supreme Court had an occasion to deal with a

situation where it is observed that a document which is not stamped

CRP.PD.No.770/2019

can be admitted in evidence for collateral purpose, if the stamp duty

and penalty are duly paid. In the case of Sita Ram Bhama Vs.

Ramavatar Bhama reported in (2018) 3 CTC 441, it has been

held by the Hon'ble Supreme Court in para 12 to 15 as follows:

12. We are, thus, in full agreement with the view taken by the trial court as well as the High Court that the document dated 09.09.1994 was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and order of trial court allowing the application under Order XII Rule 3 CPC and the reasons given by the trial court in allowing the application of the defendant holding the document as inadmissible cannot be faulted.

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

CRP.PD.No.770/2019

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 another vs. Buddha Jagadheeswararao and others, (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 Ext. 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

CRP.PD.No.770/2019

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 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

CRP.PD.No.770/2019

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

CRP.PD.No.770/2019

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 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. Following the law laid down by this Court in the above case, we are of the opinion that document dated 09.09.1994 may be admissible in evidence for collateral purpose provided the appellant get the document impounded and to pay the stamp duty together with penalty as has been directed in the above case.

(9) In tune with the decisions of the Hon'ble Supreme Court cited

supra, the present Civil Revision Petition is allowed and the order

CRP.PD.No.770/2019

dated 03.12.2018 made in IA.No.589/2018 in OS.No.315/2012 on

the file of the learned District Munsif, Jayankondam, is set aside.

(10) The learned District Munsif, Jayankondam, is directed to impound

the document and admit the same if the revision petitioner pays the

stamp duty and penalty as duly certified by the competent

authority.

02.12.2021 AP Internet : Yes

The District Munsif Jayankondam.

CRP.PD.No.770/2019