Madras High Court

S.Mallika vs Gowrammal on 29 November, 2021

                                                                               CRP.PD.No.305/2019




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 29.11.2021

                                                       CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                      CRP.PD.No.305/2019 & CMP.No.2263/2019

                                                 [Video Conferencing]


                    S.Mallika                                                     .. Petitioner

                                                         Vs.

                    Gowrammal                                                     .. Respondent

                    Prayer:- Civil Revision Petition filed under Section 115 CPC against the

                    petition and order dated 26.11.2018 in IA.No.642/2017 in OS.No.30/2016

                    on the file of the learned District Munsif, Vaniyambadi.


                                      For Petitioner           :   Mr.S.S.Raghavan

                                      For Respondent           :   Mr.Uayakumar for
                                                                   M/s.Karan and Uday




https://www.mhc.tn.gov.in/judis                           1
                                                                                   CRP.PD.No.305/2019




                                                            ORDER

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

IA.No.642/2017 in OS.No.30/2016 on the file of the learned

District Munsif, Vaniyambadi.

(2) The revision petitioner is the 12th defendant in OS.No.30/2016. The

respondent in the Civil Revision Petition is the plaintiff and she

filed the suit in OS.No.30/2016 for a declaration that the judgment

and decree passed in OS.No.138/2012 is null and void and for a

declaration of plaintiff's title to the suit property with a

consequential relief of permanent injunction.

(3) It is admitted that the revision petitioner/12th defendant has also

filed an independent written statement.

(4) It is seen that an unregistered and unstamped document of partition

was relied upon by the respondent/plaintiff to seek declaration. The

alleged Partition Deed dated 13.12.1992 based on the unregistered

and unstamped Partition Deed was pleaded by the

respondent/plaintiff. However, the said document was marked as

ExA1 by mistake, as contended by the revision petitioner. Hence,

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the revision petitioner/12th defendant filed IA.No.642/2017 to reject

the unregistered Partition Deed dated 13.12.1992 marked as Ex.A1

as inadmissible in evidence.

(5) The Court below placed reliance upon Section 33 of the Indian

Stamp Act and a few statutory provisions under the Transfer of

Property Act and the Registration Act and held that mere marking

of document will not amount to its admissibility and the

admissibility can be decided later. It was further observed that

whether the document can be relied upon for collateral purpose or

not, need not be decided at that stage and that the same will be

gone into at the time of final hearing of the suit. Therefore, the

petition filed by the revision petitioner/12th defendant was closed.

Aggrieved by the same, the revision petitioner/12th defendant has

filed the present Civil Revision Petition.

(6) The learned counsel for the revision petitioner submitted that the

suit filed by the respondent/plaintiff for declaration of title is based

on the unregistered and unstamped Partition Deed dated

13.12.1992 and that the said document cannot be relied upon even

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for collateral purpose. The learned counsel then relied upon a

decision of this Court in the case of S.Thirumalai V.

S.Govindarajan reported in 2016 [5] LW 834, wherein this Court

has held that an unregistered and unstamped Partition Deed cannot

be looked into for any purpose.

(7) This Court, in the above cited decision, while considering the scope

of admitting a similar document, has held in paragraphs No.19 and

20 as follows:-

''19.In the present case, the document Ex.B7 is not the original instrument for partition. The original instrument namely the unregistered and unstamped partition deed dated 07.04.1983 was marked as Ex.B1 in another suit in O.S.No.431 of 1976 on the file of the District Munsif Court, Thanjavur. The said suit was filed by one Kittappa against the appellant herein. The document Ex.B7 is only a certified copy namely Ex.B1 in O.s.No.431 of 1976. Even under Section 35 of the Indian Stamp Act, there can be validation only of the original when it is unstamped or insufficiently stamped. Hence, there is no scope for inclusion of a copy of a document as an

CRP.PD.No.305/2019

instrument for the purpose of the Stamp Act. The term ?instruments? in Section 36 is confined only to the original. Having regard to the provisions of Sections 35 and 36, no secondary evidence which is produced to prove the contents of the document, can be dealt with under Section 35 or Section 36. Hence, the document Ex.B7 filed in the present case by the defendant is neither admissible nor can be acted upon to prove the actual partition under Ex.B7. Having regard to the language of Section 33, 35 and 38, the Court is duty bound to impound the document once it is brought to the notice of the Court that the instrument is either unstamped or insufficiently stamped. Hence, when objection being raised, the Court is required to impound the document and decide as to the admissibility of the document even at that stage. In the present case, absolutely there is no judicial application of mind as to the requirement of Section 33 or Section 35 of the Act. There is no indication of any order passed by the Court admitting Ex.B7 in evidence. In such circumstances, the instrument Ex.B7 being original, absolutely there is no scope for relying upon Section

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36 of the Act in the present case.

20.Further, provisions to Section 35 are substantive whereas Section 36 are only procedure. There are two limbs for Section 35. The first limb is that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law authority to receive such instrument in evidence, if such instrument is not duly stamped. The second limb of Section 35 is that such unstamped instrument shall not be acted upon or authenticated by any such person who is the authority to receive any evidence. However, the instrument even if it is admitted in evidence cannot be acted upon by Court when the same is not duly stamped. Hence, considering the issue in all perspectives, I am of the view that the document Ex.B7 is inadmissible in evidence and the same cannot be acted upon or relied upon for any purpose. Since the instrument is also unregistered, the case of prior partition pleaded by defendants by metes and bounds cannot be accepted relying upon the document Ex.B7. The suggestion that the document can be looked into for

CRP.PD.No.305/2019

the purpose of severance of status has no merit for obvious reasons flow from my conclusions in the previous paragraphs.''

(8) Obviously, this Court is prima facie of the view that the document

itself is relied upon only for the purpose to establish the

respondent/plaintiff's title and therefore, it cannot be said that the

document is produced or marked for the purpose of proving any

collateral transaction. In view of the settled position that any

objection regarding improper and insufficient stamp duty should be

decided then and there, this Court is unable to sustain the order

passed by the Court below in closing the application in

IA.No.642/2017.

(9) The learned counsel for the plaintiff submitted that the application