Madras High Court

C.Chelladurai vs Karuppanan on 6 June, 2023

                                                                         C.R.P.(MD) No.1671 of 2022

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 06.06.2023

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                             C.R.P.(MD) No.1671 of 2022
                                                        and
                                             C.M.P.(MD) No.7343 of 2022

                    C.Chelladurai                                               ... Petitioner

                                                           Vs.

                    Karuppanan                                                  ... Respondent


                              Civil Revision Petition filed under Article 227 of the Constitution
                    of India, to set aside the fair and decreetal order made in I.A.No.92 of
                    2022 in O.S.No.51 of 2019 dated 07.07.2022 on the file of the District
                    Munsif Court, Vadipatti.


                                    For Petitioner     : Mr.M.Thirunavukkarasu

                                    For Respondent     : Mr.K.Guhan

                                                         ******

                                                       ORDER

This Civil Revision Petition has been filed to set aside the fair and

decreetal order dated 07.07.2022 passed by the District Munsif Court,

Vadipatti in I.A.No.92 of 2022 in O.S.No.51 of 2019.

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C.R.P.(MD) No.1671 of 2022

2. By the impugned order dated 07.07.2022, the District Munsif

Court has dismissed the I.A.No.92 of 2022 filed by the petitioner who was

sole defendant in O.S.No.51 of 2019 to introduce a copy of the

unregistered Sale Agreement dated 13.06.1990 which is said to have

entered into between the mothers of the respective parties. The said Sale

Agreement dated 13.06.1990 is an unregistered document on Two Rupees

Stamp Paper.

3. The Court below has dismissed the I.A. by referring to Sections

17(1)(b) and 49 of the Indian Registration Act, 1908 and Section 35 of the

Indian Stamp Act, 1899 with the following observations:-

8) kDjhuH/gpujpthjpahy; FwpaPL nra;jpl Ntz;b jhf;fy; nra;ag;gl;l ,k;kDtpy; fle;j 13.06.1990k; Njjpapl;l gjpT nra;ag;glhj Mtzj;ij nghWj;jtiu ,e;jpa gjpT rl;lk; 1908 rl;lg;gphpT 17(1) cl;gphpT (b)d;gb &.100/- kw;Wk; mjw;F Nkw;gl;l kjpg;G cila nrhj;J njhlHghd chpik khw;w Mtzq;fs;

fl;lhakhf gjpT nra;ag;gl Ntz;Lk; vd;gJ epiyepWj;jg;gl;l rl;lf;Nfhl;ghL MFk;.

Nkw;gb rl;lg;gpuptpYk; mbapw;fz;lthW Fwpg;gpl;Ls;sJ.

17. Documents of which registration is

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C.R.P.(MD) No.1671 of 2022

compulsory.— (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

9. NkYk; gjpT nra;ag;glhj Mtzq;fspd; nraYWj;jg;gLk; jd;ik Fwpj;J ,e;jpa gjpT rl;lk; gphpT 49y; mbapw;fz;lthW Fwpg;gplg;gl;Ls;sJ.

49. Effect of non-registration of documents required to be registered.— No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, 1[***] or as evidence of any collateral transaction not required to be effected by registered instrument. vdf;Fwpg;gplg;gl;Ls;sJ.

                                         10)    NkYk;      Nkw;gb      gjpT      nra;ag;glhj

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C.R.P.(MD) No.1671 of 2022

fpiuag;gj;jpuj;jpd; mbg;gilapy;

kDjhuH/gpujpthjpfs; jth nrhj;jpid mDgtk;

nra;J tUtjw;F Mjuthf tUtha;Jiw Mtzq;fs; vJTk; jhf;fy; nra;ag;gltpy;iy. NkYk; ,e;jpa Kj;jpiu fl;lzr;rl;lk; gphpT 35d;gb rhpahd Kj;jpiu fl;lzk; nrYj;jp gjpT nra;ag;glhj Mtzk; rl;lg;gb rhl;rpakhf Vw;f ,ayhJ vd;gJk; rl;l epiyg;ghL MFk;.

vdNt Nkw;fz;l rl;l epiyg;ghl;bd;gb kDTld; jhf;f nra;ag;gl;l Mtzk; nry;Yk; jd;ik mw;w epiyapy;> mjdbg;gilapy;

kDjhuH/gpujpthjp vt;tpj ghpfhuKk; Nfhu ,ayhJ vd;Nw r%f ePjpkd;wk; jPHT fhz;fpwJ.

11) vdNt> Nkw;gb gjpT rl;lj;jpd;gb fle;j 13.06.1990 Njjpapl;l MtzkhdJ gjpT nra;ag;gltpy;iy vd;gjpdhYk;> Kj;jpiu fl;lzr;rl;lk; gphpT 35d;gb Kj;jpiuf;fl;lzk;

nrYj;jg;glhj fhuzj;jpdhYk;

kDjhuH/gpujpthjpahy; jhf;fy; nra;ag;gl;l ,e;j Mtzk; FwpaPL nra;a ,ayhJ vd r%f ePjpkd;wj;jhy; mwpe;J nfhs;sg;gl;L> KbT fhzg;gLfpwJ.

,Wjpahf> kDjhuH/gpujpthjpahy; jhf;fy; nra;ag;gl;l ,k;kDtpy ,e;jpa gjpT rl;lk; gphpT 17 kw;Wk;

49d;gbAk;> kw;Wk; ,e;jpa Kj;jpiu fl;lzr;rl;lk; gphpT 35d;gbAk; epge;jizfs; g +Hj;jp nra;ag;glhj fhuzj;jpdhy; ,k;kD js;Sgb nra;ag;gl;L cj;juT gfpug;gLfpwJ.

4.The learned counsel for the petitioner submits that Section 17 of

the Indian Registration Act, 1908 was amended vide Tamil Nadu

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C.R.P.(MD) No.1671 of 2022

Government Gazette, dated the 30th November, 2012 only with effect from

01.12.2012, whereby, it was mandatory for a person to register the Sale

Agreement and therefore, bar under Section 17 of the Indian Registration

Act, 1908 will not apply as above Sale Agreement precedes the above

amendment.

5. That apart, it is submitted that there is no impediment under

Section 49 of the Indian Registration Act. The learned counsel for the

petitioner submits that the Sale Agreement was sufficiently stamped as per

the stamp duty rates prevailing then for execution of Sale Agreement and

hence the impugned order declining the prayer for marking of the

aforesaid Sale Agreement dated 13.06.1990 is liable to be interfered with.

6. Per contra, the learned counsel for the respondent submits that

the impugned order is well reasoned and requires no interference and

therefore, the present Civil Revision Petition is liable to be dismissed.

That apart, it is submitted that the suit has been filed for declaration and

for permanent injunction in the year 2019, the introduction of alleged Sale

Agreement dated 13.06.1990 at the time of trial after the closure of

plaintiff's side witness was hopelessly time barred and therefore, on this

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C.R.P.(MD) No.1671 of 2022

count also, the impugned order does not call for interference and this Civil

Revision Petition is liable to be dismissed.

7. The learned counsel for the respondent relied on the decision of

this Court in Thangamuthu and others Vs. A.Jeyaraj, 2020 (1) CTC 47.

A reference is made to paragraph No.14, wherein, the Court has held that

where an instrument is improperly not stamped, such instrument cannot be

admitted in evidence in terms of Section 35 of the Indian Stamp Act,

1899. Paragraph No.14 from the above Judgment reads as under:-

14. The Judgments that have been cited by the learned Counsel for the Respondent may not come to his aid, since the Hon'ble Supreme Court in those Judgments has categorically held that in view of Section 35 of the Stamp Act, 1899, the document, which falls under the said provision, shall not be admitted for any purpose whatsoever. This would also include for collateral purpose.

8. I have considered the arguments advanced by the learned counsel

for the petitioner and the respondent.

9. The impugned order cannot be sustained as without allowing the

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petitioner for marking the additional document namely, Sale Agreement

dated 13.06.1990, the Court cannot determine the exclusive rights of the

petitioner and the respondent, as the case may be.

10. That apart, in the Written Statement filed in O.S.No.51 of 2019,

the petitioner has categorically stated that the Sale Agreement dated

13.06.1990 was executed between the petitioner's mother and the

respondent's mother. The relevant portion from the Written Statement

reads as under:-

2. ......... That as far as the other allegations set forth in para 4 of the suit plaint by alleging that the plaintiff's mother had possessed and enjoyed the suit property from the date of her purchase untill the date of death of her and further alleged that the plaintiff's mother had died on 10.09.2016 leaving the plaintiff and his sisters namely one Pitchar, Veerammal Selvi and Manimegalai as her sole legal heirs to be agreement of sale of the suit property on 13.06.1990. The sale price has been fixed as Rs.5,500/- to the present suit property and the mother of the plaintiff herein, received a sum of Rs.5000/- as advance amount, in token to the said sale agreement as on 13.06.1990. The time for sale has been fixed as 6 months from 13.06.1990 for completion of sale infavour of the mother of this defendant. The terms of the sale agreement had been reduced into writing and both the mother of the plaintiff and the mother of the defendant had signed in it in presence of witness for purpose of using it as cattle shed of the defendant's family.

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C.R.P.(MD) No.1671 of 2022

11. The only mistake the petitioner committed was in not filing the

copy of the said Sale Agreement dated 13.06.1990 along with the Written

Statement as is required under Order VIII Rule 1-A of the Code of Civil

Procedure, 1908 which reads as under:-

Order VIII Rule 1-A

(a) 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him - (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.