S.Sundarrajan vs P.Senthilkumar
2023 Latest Caselaw 1534 Mad

                                                                                        CRP(MD)No.160 of 2023


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 09.02.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                               CRP(MD)No.160 of 2023
                                                      and
                                               CMP(MD)No.757 of 2023

                S.Sundarrajan                                                     : Petitioner

                                                             Vs.

                P.Senthilkumar                                                    : Respondent

                PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of

                India to call for the records relating to the fair and decreetal order dated

                01.12.2022 passed by the learned Principal Subordinate Judge, Srivilliputhur, in

                I.A.No.1 of 2022 in O.S.No.56 of 2011 and set aside the same.

                                      For Petitioner     :   Mr.P.Athimoolapandian

                                                          *****

                                                        ORDER

The petitioner before this Court is the defendant in the suit in O.S.No.56 of

2011 on the file of the Sub Court, Srivilliputhur. The suit was filed by the

respondent for the relief of specific performance, based on a sale agreement dated

https://www.mhc.tn.gov.in/judis CRP(MD)No.160 of 2023

09.07.2010 [Ex.A1]. Pending the suit, the petitioner has moved an interlocutory

application in I.A.No.1 of 2022 under Order 7 Rule 11 CPC r/w Sections 33 & 35

of the Indian Stamp Act, to impound the sale agreement [Ex.A1] and to eschew the

proof affidavit from it. The trial court, by order dated 01.12.2022, dismissed the

application and aggrieved over the same, the petitioner / defendant has filed the

present revision petition.

2.The main contention of the petitioner is that the document Ex.A1 is an

unregistered and unstamped one and therefore, it cannot be taken into evidence.

By relying upon the decision in Yellapu Uma Maheswari v. Buddha

Jagadheeswararao & Ors [(2015) 16 SCC 787], learned Counsel for the

petitioner submitted that when there is a relinquishment of right in respect of an

immovable property, the document is compulsorily registrable and if it is not

registered, it is inadmissible as envisaged under Section 49 of Registration Act,

1908 [hereinafter referred to as 'the Act'].

3.The suit is filed for specific performance of an unregistered and

unstamped sale agreement. The documents, which have to be registered

compulsorily, are adumbrated under Section 17 of the Act. As per Section 49(c) of

https://www.mhc.tn.gov.in/judis CRP(MD)No.160 of 2023

the Act, no document can be received as evidence of any transaction affecting such

property or conferring such power, unless it has been registered. However, the

proviso to Section 49 of the Act permits the same to be received as evidence of a

contract in a suit for specific performance under Chapter II of the Specific Relief

Act, 1877 or as evidence for collateral transaction. Since the suit is for specific

performance, the document Ex.A1 can be taken on record, even though it is

unregistered, in view of the proviso to Section 49 of the Act.

4.The unregistered sale agreement was already marked as Ex.A1 in the

above suit. It appears that the trial Court, by order dated 15.02.2011, has directed

the respondent to pay a sum of Rs.220/- as stamp duty and if the petitioner still

had any objection with regard to the stamp duty, it should have been raised at the

time of marking. The petitioner who failed to raise any objection during the

marking cannot raise it as an issue now.

5.This Court in Manoharan v. Rangabashyam [2009 (1) CTC 628] has held

that under Section 36 of the Stamp Act, if a document has been received without

any objection as to the sufficiency of stamps, an objection cannot be taken at any

subsequent stage. In the case on hand, no objection can be seen to have been made

https://www.mhc.tn.gov.in/judis CRP(MD)No.160 of 2023

by the petitioner during the marking of the document. Therefore, the issue of

stamp duty does not arise.

6.The other grounds raised by the petitioner such as the veracity of the

document, etc., cannot be decided in this petition, in view of the decision of the

Hon'ble Supreme Court in Bipin Shantilal Panchal v. State of Gujarat [(2001) 3

SCC 1], wherein, it was held that except the issue of stamp duty, the other

objections, if any, made during the marking of the document can be decided only

at the last stage in the final judgment.

This Court does not find any infirmity in the order passed by the trial court

and this revision petition is accordingly, dismissed. No costs. Consequently,

connected miscellaneous petition is closed.

                Index             : Yes / No                                      09.02.2023
                gk

                To

                The Principal Subordinate Judge,
                Srivilliputhur.








https://www.mhc.tn.gov.in/judis
                                           CRP(MD)No.160 of 2023


                                     B.PUGALENDHI, J.

                                                            gk




                                  CRP(MD)No.160 of 2023




                                                09.02.2023







https://www.mhc.tn.gov.in/judis