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THIRUMAL NADAR versus THANGADURAI NADAR

High Court of Madras

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Thirumal Nadar v. Thangadurai Nadar - CRP. (PD) (MD) No.267 of 2005 [2007] RD-TN 2125 (29 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 29/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRP. (PD) (MD) No.267 of 2005

and

C.M.P.(MD)No.2328 of 2005

1. Thirumal Nadar

2. Sudalaikumar ... Petitioners

Vs

Thangadurai Nadar ... Respondent

Prayer

This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order dated 28.02.2005 passed in I.A.No.61 of 2004 in O.S.No.465 of 2003 on the file of the learned Principal Subordinate Court, Tirunelveli.

For Petitioners .. Mr.K.Srinivasan

For Respondent .. No Appearance Amicus Curiae .. Mr.S.Sundar :ORDER



The petitioners who are the defendants in O.S.No.465 of 2003, have come forward with this revision challenging the order of dismissal dated 28.02.2005, made in I.A.No.61 of 2004, on the file of the learned Principal Subordinate Judge, Tirunelveli. The respondent is the plaintiff in the said suit.

2. The respondent has filed the above suit against the petitioners herein for recovery of a sum of Rs.1,60,000/- with interest alleging that on 22.09.1988, the petitioners/defendants borrowed a sum of Rs.1,60,000/- from one Muruganantham S/o Kasi Nadar and executed an unregistered and unstamped document styling as Othi deed. It is the further case of the plaintiff that subsequently on 19.12.2000, Mr.Murugananthan after receiving Rs.1,60,000/- from the plaintiff executed a made-over deed in his favour. The suit has been laid to recover the said amount with interest on the basis of the made-over deed dated 19.12.2000.

3. During evidence, the respondent/plaintiff has marked the first document dated 22.09.1988 as Ex.A.1 and the made-over as Ex.A.2. When they were produced in evidence, the defendants questioned the admissibility of the said documents and accordingly raised due objection. The learned Principal Subordinate Judge has marked those two documents as Ex.A.1 and Ex.A.2, subject to the objections.

4. Later on, the petitioners/defendants have filed I.A.No.61 of 2004, under Order 13 Rule 3 C.P.C., requesting the Court to eschew Exs.A.1 and A.2, on the ground that they are inadmissible in evidence. According to them, the document-Ex.A.1 being an Othi deed is not admissible in evidence, since the same has not been neither stamped nor registered. Likewise, the second document- Ex.A.2 being a made-over document, is also not admissible in evidence as it was also neither stamped nor registered.

5. The said I.A., was opposed by the respondent/plaintiff on the ground that the suit claim has been made on the basis of money transaction between Mr.Muruganantham and the defendants which according to the plaintiff was only by means of oral agreement and Ex.A.1 was executed only to evidence the same and therefore, according to the respondent/plaintiff it can be used for collateral purpose. Like wise according to the respondent/plaintiff, Ex.A.2 also could be looked into for collateral purpose. Further, according to the respondent/plaintiff, the admissibility or otherwise of the documents could be gone into at the time of Judgment by the lower Court and the question of admissibility need not be gone into at this stage. Having considered the rival contentions, the learned Principal Subordinate Judge has dismissed the said I.A. Challenging the same, this revision has been filed.

6. Heard the learned counsel for the petitioner and Mr.S.Sundar appearing as amicus curiae appointed by this Court and also perused the records.

7. It is needless to say that while construing the documents the Court should not be carried away by the caption. In this case, though the caption of the document Ex.A.1 states that it is a Othi deed, to find out the nature of the document, this Court has gone through the entire document. The contents of the document would leave no doubt that it is meant to be a Othi deed requiring both stamp under the Indian Stamp Act, as well as registration under the Indian Registration Act. Like wise, Ex.A.2 also requires both stamp and registration. Assuming that the suit has been laid not on the basis of these two documents but on the basis of original money transaction between Mr.Muruganantham and the petitioners/defendants, the question is whether these two documents could be marked in evidence for collateral purpose as claimed by the respondent/plaintiff.

8. The learned amicus curiae would bring to my notice the Judgment of this Court reported in 2001 (3) Supreme Court Cases 1 (Bipin Shantilal Panchal v. State of Gujarat) wherein, the Hon'ble Supreme Court in paragraph No.14 has held as follows:-

"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed."

9. As it has been made clear by the Hon'ble Supreme Court, if the objection relates to the deficiency of stamp duty of a document, the Court cannot simply record the objections and proceed further. Instead, the Court should decide its admissibility first and then only it can proceed further. So, in the case on hand, since the question regarding the deficiency of stamp duty was raised by the petitioners/defendants, the lower Court ought not to have admitted the documents in evidence, by simply recording the objections and instead the Court should have decided its admissibility. Any how, the petitioners have rightly filed I.A.No.61 of 2004, at a later stage requesting the Court to eschew the document.

10. While deciding the admissibility of the documents, the lower Court has relied on the commentary found under Section 59 of the Indian Registration Act of Mulla which is to the following effect.

"59. Endorsement to be dated and signed by registering officer. The registering officer shall affix the date and his signature to all endorsements made under section 52 and 58, relating to the same document and made in his presence on the same day."

11. In the said commentary also the Author had no occasion to deal with the requirement of stamp for admitting a document. But, the said commentry relates only to the requirement of registration of the document for making the same as admissible. The Author only said though the document has not been registered it can be looked into for collateral purpose. But, in the case on hand, the documents are not only unregistered but also not sufficiently stamped. Therefore, the commentary relied on by the lower Court is not exactly applicable to the facts of the present case.

12. The learned amicus curiae would bring to my notice another Judgment of a Division Bench of this Court reported in 2001 (1) CTC 112 (Lakshmipathy, A.C v. A.M.Chakrapani Reddiar) wherein, the Division Bench after elaborately discussing the issues involved regarding the admissibility of documents requiring stamp as well as registration, has summed up the legal position as follows:-

"42. To sum up the legal position:

(I) A family arrangement can be made orally (II) if made orally, there being no document, no question of registration arises,

(III) If the family arrangement is reduced to writing and it purports to create declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian stamp Act and Indian Registration Act;

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.

(V) However, a document in the nature of a memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person can not claim a right or title, to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Sec.35 of the Indian Stamp Act."

13. Clause VII and IX of paragraph No.42 of the said Judgment are relevant to decide the facts of the case on hand. Clause VII speaks about a document which is sufficiently stamped but not registered and according to the Division Bench, it can be looked into for collateral purpose. But, in Clause IX of the said Judgment, the Division Bench has held that a document which is neither stamped nor registered cannot be looked into for any purpose, in view of the specific bar contained in Section 35 of the Indian Stamp Act. In the case on hand, the documents namely, Exs.A.1 and A.2 have been neither sufficiently stamped nor registered. Therefore, Clause VII squarely applies to these documents. Therefore, I have no other option but to hold that these two documents cannot be looked into even for collateral purpose as it is claimed by the respondent/plaintiff in his counter.

14. The learned amicus curiae would also bring to my notice the Judgment of this Court reported in 2005 (4) M.L.J. 337 (Indirani, Tmt. v. Seetharaman) wherein, this Court has held that, if Section 35 of the Stamp Act, is complied with, then, the Court can look into the document for collateral purpose though, the same has not been registered. A perusal of proviso to Section 35 of the Stamp Act, would show that if a party also relied on a document which has not been already stamped sufficiently then, he is at liberty to pay penalty and also stamp duty as required under the Act, and then make the said document in evidence. Here in the case on hand, Ex.A.1 has been written on a five rupees stamp paper and Ex.A.2 has been written on a ten rupees stamp paper. Therefore, option is to be given to the respondent/plaintiff even now to utilise the enabling provision available in proviso to Section 35 of the Stamp Act, to pay the balance stamp duty with penalty in which case there cannot be any difficulty for the lower Court to look into Exs.A.1 and A.2, for collateral purpose and if the respondent/plaintiff fails to do so then, there can be no doubt that both the documents shall stand eschewed from evidence as provided in Order 13 Rule 3 C.P.C.,

15. In the result, this Court holds as follows:- (i)Exs.A.1 and A.2 as such cannot be looked into even for collateral purpose since they have not been neither sufficiently stamped nor registered. (ii)The lower Court ought not to have marked Exs.A.1 and A.2 in evidence by simply recording the objections of petitioners/defendants without deciding the question of admissibility of the said documents since a very vital question regarding the stamp duty has been raised by the petitioners. (iii)For using Exs.A.1 and A.2 documents for collateral purpose, even now, the respondent/plaintiff can utilise the enabling provision contained in proviso to Section 35 of the Indian Stamp Act, to pay penalty and stamp duty as required under the Act.

(iv)If the respondent/plaintiff pays penalty and the stamp duty, within a period of two months from the date of receipt of a copy of this order, Exs.A.1 and A.2 shall remain in evidence for collateral purpose. If the respondent/plaintiff fails to comply with Section 35 of the Stamp Act, within the time stipulated by this Court, the documents Exs.A.1 and A.2 shall stand eschewed from evidence.

16. With the above directions, the civil revision petition is disposed of. No costs. Consequently, connected C.M.P is closed.

17. Before parting of the Judgment, this Court deems it absolutely necessary to record its appreciation for the remarkable help rendered by Mr.S.Sundar who has taken much efforts to gather relevant provisions and authorities to assist this Court.

To

The Principal Subordinate Court,

Tirunelveli




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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