Madras High Court
M.Arunagiri vs M.Thangavel on 15 July, 2021
CRP.PD.No.3176 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P (PD) No.3176 of 2018
and
C.M.P.No.18156 of 2018
M.Arunagiri ... Petitioner
Vs.
1. M.Thangavel
2. Palanisamy
3. P.Raghupathi
4. Bhagavathiammal ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the order and decretal order dated 27.07.2018 made in
I.A.No.290 of 2017 in O.S.No.160 of 2014 on the file of the learned III
Additional District & Sessions Judge, Erode @ Gobichettipalayam by
allowing this Civil Revision Petition.
For Petitioner : M/s.R.Shase
For Respondents : Mr.A.Veerasamy for
Mr.M.Narayanaswamy (for R-1)
: Notice Served (No Appearance)
(for R-2 to R-4)
1/7
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CRP.PD.No.3176 of 2018
ORDER
This Civil Revision Petition is filed as against the fair and decretal
order passed in I.A.No.290 of 2017 in O.S.No.160 of 2014 dated
27.07.2018 on the file of the learned II Additional District & Sessions Judge,
Erode @ Gobichettipalayam, thereby dismissing the petition to order for
Stamp Duty with Penalty on the partition deed dated 14.04.2003.
2. The petitioner is the second defendant and the first respondent is
the plaintiff. The first respondent filed the suit for partition and declaration
to declare that the settlement deed dated 26.05.2010 is null and void. While
pending the suit, the petitioner filed a petition alleging that his father, the
first defendant, the third defendant and the plaintiff entered into a partition,
in respect of family properties by executing a partition deed dated
14.04.2003, in which the petitioner's father was allotted 'B' schedule
property. Now, the respondents are denying the execution of the said
partition deed. Therefore, the petitioner wanted to mark the partition deed
dated 14.04.2003. Admittedly, it is an unregistered and unstamped
document. Therefore, the respondents raised objections that the unregistered
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CRP.PD.No.3176 of 2018
and unstamped partition deed dated 14.04.2003 cannot be marked for any
purpose. Further, he raised objections that the execution of the partition
deed dated 14.04.2003 itself is denied and Section 17 of the Registration Act
is a bar to mark the alleged unregistered and unstamped partition deed dated
14.04.2003. The Court below dismissed the petition seeking direction to
impound the document dated 14.04.2003 for payment of stamp duty with
penalty. Aggrieved by the same, the present Civil Revision Petition is filed
by the petitioner.
3. The only point for consideration in this Civil Revision Petition is as
to whether the unregistered and unstamped partition deed dated 14.04.2003
can be mutated for the purpose of marking the same. The learned counsel
for the petitioner relied upon the judgment of this Court reported in 2017 (2)
MWN (Civil) 165 (Navinraj -vs- Gnanasekar) and this Court held that the
Court cannot refuse to admit the document merely because objections have
been raised by the parties. Further, after collecting Stamp Duty and Penalty,
if any, the Court can note the objections including whether for a collateral
purpose such document could be looked into or not and defer its conclusions
thereon to the judgment stage. She also relied upon the judgment of the
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CRP.PD.No.3176 of 2018
Hon'ble Supreme Court of India reported in 2015 (13) SCALE 615 (Yellapu
Uma Maheswari -vs- Buddha Jagadheeswararao). The Hon'ble Supreme
Court of India held that Section 17 (1) (b) of the Registration Act mandates
that any document which has the effect of creating and taking away the
rights in respect of an immovable property, must be registered and Section
49 of the Act imposes bar on the admissibility of an unregistered document
and deals with the documents that are required to be registered under
Section 17 of the Registration Act. Further, in the said case before the
Hon'ble Supreme Court of India, the matter pertains to partition. In this
context, the Hon'ble Supreme Court of India held therein as follows:-
“16..... Taking us through the recitals of these two
documents, the learned senior counsel tried to impress
upon this Court particularly through the last few lines
from Exhibit B-21, that these documents are only
evidencing the past transaction of partition that has
taken place but through these documents no rights in
immovable property have accrued to the parties as
envisaged under Section 17 of the Registration Act and
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CRP.PD.No.3176 of 2018
which makes these documents out of the purview of
Section 49 of the Registration Act.”
4. The Hon'ble Supreme Court of India further held that it is well
settled that the nomenclature given to the document is not a 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.
5. According to the petitioner, there was a partition deed dated
14.04.2003 and the suit properties were already partitioned between the
parties to the suit. In a suit for partition, an unregistered document can be
relied upon only for collateral purpose. An unstamped instrument is not
admissible in evidence even for collateral purposes, until the same is
impounded.
6. In view of the above discussion, this Civil Revision Petition is
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CRP.PD.No.3176 of 2018
allowed and the order passed in I.A.No.290 of 2017 in O.S.No.160 of 2014
dated 27.07.2018 is hereby set aside. It is made clear that after the payment
of stamp duty with penalty, the said document may be marked for collateral
purpose subject to proof and relevancy. Consequently, the connected
Miscellaneous Petition is closed. No costs.
15.07.2021
Speaking/Non-speaking order
Index : Yes/No
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To
1. The III Additional District & Sessions Judge,
Erode @ Gobichettipalayam
2. The Section Officer,
V.R. Section, High Court of Madras.
G.K.ILANTHIRAIYAN,J.
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CRP.PD.No.3176 of 2018
kv
C.R.P (PD).No.3176 of 2018
15.07.2021
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