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2005 DIGILAW 845 (MAD)

Pyarijan v. Puttappa & Another

2005-06-14

R.BANUMATHI

body2005
Judgment :- This revision is directed against the Judgment and Decree of the learned District Munsif, Hosur, dated 20.12.1999 made in I.A.No.707/1999 in O.S.No.121/1993, allowing the petition filed under Or.13, R.9 and Section 151 CPC and holding that the document is inadmissible in evidence. The Plaintiff is the revision Petitioner. 2. Case of the Plaintiff is that the Defendants have borrowed a sum of Rs.15,000/- repayable in three years. In lieu of interest, the Defendants are said to have hypothecated the mulberry crops in S.No.103 – 50 cents. To that effect, the Defendants 1 and 2 have executed an agreement on 8.1.1992, wherein they have acknowledged the receipt of the amount. The Defendants have not repaid the amount. Hence the Plaintiff issued legal notice to the Defendants calling upon them to allow her to draw water from the well to do mulberry crop plantation or pay back the amount. The Defendants though received the notice did not reply the notice nor paid the amount and also not complied with the demand of the notice. Hence the suit has been filed directing the Defendants to pay Rs.15,000/-. 3. Denying the averments in the Plaint, Defendants have filed Written Statement inter-alia contending that the alleged document is possessory mortgage which should be on stamped papers for proper value and they should have been registered. For want of registration and insufficiency of stamps the document is inadmissible in evidence. The Plaintiff's husband wanted the second Defendant to be his farm servant. It was agreed that the Plaintiff would pay Rs.5000/- to the second Defendant, for which the Plaintiff's husband took the thumb impression and signature of the Defendant in blank stamp papers and the same has been created as a loan transaction. The Plaintiffs have neither borrowed the amount nor have the means to pay the amount. 4.I.A.No.707/1999:- During the pendency of the suit this application was filed by the Defendants under Or.13 R.3 CPC and Sec.151 CPC on the ground that the document is inadmissible in evidence. According to the Defendants, the document is liable for stamp duty as required for mortgage, under section 58 of Transfer of Property Act. The document without payment of proper Stamp Duty cannot be received in evidence under Section 35 of the Stamp Act. According to the Defendants, the document is liable for stamp duty as required for mortgage, under section 58 of Transfer of Property Act. The document without payment of proper Stamp Duty cannot be received in evidence under Section 35 of the Stamp Act. Further the document should have been registered under section 17 of the Registration Act and is inadmissible under Section 49 of the Registration Act. 5. Resisting the application, the Plaintiff has filed the counter statement contending that the possession of mulberry crop was given only for a short time, which was later not complied with by the Defendants. The Plaintiff being innocent and illiterate lady, has no worldly knowledge. The question of mortgage or usufructory mortgage does not apply to the facts in hand. 6. Upon consideration of the submissions by both parties, the learned District Munsif held that the document relates to the transaction relating to immovable property creating the interest of the Plaintiff in the immovable property. On those reasonings the lower Court found that the agreement is not properly stamped and such insufficiently stamped document cannot be looked into and the document is inadmissible in evidence for want of proper stamp and registration. 7. Aggrieved over the same, the revision Petitioner has preferred this revision. 8. The learned counsel for the Revision Petitioner has submitted that the revision Petitioner has claimed only the principal amount. When that being so, it is contended that the lower Court has erred in finding that the document has not been properly stamped. The learned counsel for the revision Petitioner has further submitted that the document is relied upon only for showing the purpose of lending the money and that there is no impediment to look into the document. In support of his contention, the learned counsel has relied upon 2001 (3) SCC 1 . Countering the same, the learned counsel for the respondents has submitted that when recitals are incorporated showing that possession of immovable property in S.No.103 has been handed over for enjoying the usufructs for three years, the document needs to be registered. It is further submitted that such an unregistered document which is not properly stamped cannot be admitted in evidence. Countering the same, the learned counsel for the respondents has submitted that when recitals are incorporated showing that possession of immovable property in S.No.103 has been handed over for enjoying the usufructs for three years, the document needs to be registered. It is further submitted that such an unregistered document which is not properly stamped cannot be admitted in evidence. Drawing the attention of the Court to Sec.49 of the Registration Act and Sec.91 of the Indian Evidence Act, the learned counsel has submitted that in view of the clear provisions, the trial Court has rightly declined to admit the document and that the impugned order does not suffer from any infirmity warranting interference. 9. Upon careful consideration of the submissions by both sides, the impugned document and other materials on record, the only point that arises for consideration is whether the trial Court was right in declining to admit the document and whether the impugned order suffers from any material irregularity warranting interference ? 10. The Plaintiff has filed the suit alleging that the Defendants have borrowed a sum of Rs.15,000/- and have executed the document dated 8.1.1992. In the document, it is contended that the amount of Rs.15,000/- is incorporated. That apart, the recitals of the document show that for payment of interest, possession of fifty cents of land in S.No.103 and the enjoyment of the usufructs – mulberry has been handed over to the Plaintiff. Relevant recital in the document reads :- 11. By a careful analysis of the above recitals, two things emerge :- 1. Advancement of Rs.15,000/-; and; 2. Handing over of possession of 50 cents in S.No.103 for the purpose of enjoyment of usufructs - mulberry in lieu of interest. 12. Both the above aspects are inseparable. In other words, advancement of money Rs.15,000/- and handing over of possession of 50 cents in S.No.103 for enjoyment of mulberry in lieu of interest are integral parts of the document. The said document is more in the nature of usufructory mortgage which requires to be registered. 13. It is to be noted that even in the legal notice issued by the Plaintiff, the Plaintiff has called upon the Defendant either to allow her to draw water from the well and do the mulberry crop plantation or pay back the amount. The said document is more in the nature of usufructory mortgage which requires to be registered. 13. It is to be noted that even in the legal notice issued by the Plaintiff, the Plaintiff has called upon the Defendant either to allow her to draw water from the well and do the mulberry crop plantation or pay back the amount. Calling upon the Defendants to permit/allow the Plaintiff to do the mulberry crop plantation also shows that the document creates a right in favour of the Plaintiff in the immovable property. 14. Unregistered document which falls within Sec.17 of Registration Act cannot be used in any legal proceeding to bring out indirect effect which it would have if registered. The document stating advancement of money and also handing over of possession being inseparable property that document involved is immovable property which needs to be registered, cannot be received in evidence. When the document is inadmissible in evidence, it cannot be looked into for any purpose. The contention that the document can be looked into for the purpose of advancement of money does not merit acceptance. Under Section 49 of the Registration Act, no document required by Sec.17 or any of the provisions of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting immovable property. 15. Documents which are inadmissible for want of registration may at times be admissible for collateral purpose. A collateral purpose is a purpose other than creating, declaring, assigning, limiting or extinguishing a right of immovable property. In this case, the purpose of document is advancement of loan and at the same time, creating an interest in the immovable property to enjoy the usufructs for a period of three years. Hence the document being unregistered is inadmissible in evidence of the transaction, affecting the immovable property. The advancement of money cannot be separated from that of the interest affecting the immovable property to receive the same for collateral purpose. 16. The learned counsel for the Revision Petitioner, placing reliance upon 2001 (3) SCC 1 (Bipin Santhilal Panchal Vs. State of Gujarat and another) submitted that the trial Court erred in passing an elaborate order on the admissibility of the document on the application filed by the Defendant. 16. The learned counsel for the Revision Petitioner, placing reliance upon 2001 (3) SCC 1 (Bipin Santhilal Panchal Vs. State of Gujarat and another) submitted that the trial Court erred in passing an elaborate order on the admissibility of the document on the application filed by the Defendant. It is submitted that the Court ought to have relegated the procedure for determining the question of admissibility of the document at the evidence taking stage. In the said decision, the Supreme Court has held : "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. 15. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final Judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." 17. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." 17. Even in the said decision, the Supreme Court has observed that the procedure of determining the admissibility of document at the trial stage has to be followed except whether the objection relates to deficiency in stamp duty on a document. In this case, objection has been raised regarding the deficiency in stamp duty and the registration of the document. Hence the lower Court was right in taking up the point of admissibility of the document for determination. The contention that the Court ought to have determined the point at evidence taking stage does not merit acceptance. 18. When the Court of first instance has determined the question of admissibility of evidence, the revisional Court cannot interfere. This is all the more so when the question of payment of stamp duty is involved. The impugned order does not suffer from any error or infirmity, warranting interference. This revision has no merits and is bound to fail. 19. Therefore, the Judgment and Decree of the learned District Munsif, Hosur, dated 20.12.1999 in I.A.No.707/ 1999 in O.S.No.121/1993 is confirmed and this revision is dismissed. However, in the circumstances of the case, there is no order as to costs. It is directed that during trial, the trial Court may not be influenced by any of the views expressed by this Court.