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2011 DIGILAW 188 (MAD)

Vasantha Ammal v. Gunasekaran

2011-01-12

S.PALANIVELU

body2011
Judgment :- 1 This Revision has been filed against the order dated 23.6.2009 passed in I.A. No. 1524 of 2008 in O.S. No. 576 of 2005 on the file of the Additional District Munsif Court, Cuddalore. 2 The petitioner is the defendant in O.S. No. 576 of 2005 on the file of the Additional District Munsif Court, Cuddalore. This is a suit for partition filed by the respondent. Pending the trial of the suit, the respondent/plaintiff produced unstamped and unregistered release deed dated 24.9.1991 executed by the respondent in favour of his sister by name Anusuya Amma along with an application to impound the same by referring to the Deputy Collector (Stamps) for Collection of Stamp Duty and Penalty. The petitioner has filed a memo praying the Court to sent the document to the Deputy Collector Stamps and the memo was dismissed by the Court as against which she preferred C.R.P. No. 2549 of 2007 before this Court, in which a direction was issued to her to file an application for the said purpose and consequently, the petitioner has filed the petition to impound the said document. 3 In the counter filed by the respondent in I.A. No. 1524 of 2008, it has been stated that it is false to allege that the respondent executed a release deed dated 24.9.1991 in favour of his sister. The petition is not in conformity with the order of the High Court and that the alleged release deed is attacked as forged document. When the execution of document itself is denied, it cannot be impounded and made admissible in evidence. A forged document cannot be impounded. Apart from that, a document which is compulsorily registrable document, the same cannot be subsequently validated by impounding and if it is a genuine document it should have been presented for registration within four months from the date of Its execution. Failure in this regard will result its invalidity and the petitioner had made a faint attempt to indirectly validating a forced document and that the petition is not maintainable both in facts and in law. 4 After hearing both sides, the learned Additional District Munsif, Cuddalore, dismissed the application observing that when the execution of document is not admitted by the respondent, the question of impounding will not arise and that by means of impounding a document, which requires compulsory registration, it cannot be subsequently validated. 4 After hearing both sides, the learned Additional District Munsif, Cuddalore, dismissed the application observing that when the execution of document is not admitted by the respondent, the question of impounding will not arise and that by means of impounding a document, which requires compulsory registration, it cannot be subsequently validated. The said order is challenged before this Court in this revision. 5 The learned counsel for the petitioner Mr. R. Gururaj has submitted that when the petitioner who produced a document comes forward praying this Court to impound it by referring the same to the authority, there is no legal impediment for the Court to impound the same. 6 The learned counsel for the respondent Mr. R. Subramanian contended that there is no scope for impounding the document. Since the execution of document itself is not admitted by the respondent and that when it is compulsorily registrable document, it need not be impounded. 7 The document in dispute is dated 24.9.1991, captioned as “Tamil”. By means of this document, it is stated that the respondent relinquished his right in the suit property in favour of his sister by getting Rs. 11,000/- from her. The relevant recital in the document reads as follows: “Tamil” While the above said recital is subjected to a careful scrutiny, it transpires that by virtue of this document, the respondent released his right In the property. If it is so, certainly, it would attract the provisions of Indianwhich mandates the document be registered compulsorily. 8 The learned counsel for the petitioner placed reliance upon a decision of Supreme Court in Chilakuri Gangulappa v. Revenue Divisional Officer, Madanapalle and Another 2001 (3) LW 113 : (2001) 2 MLJ 33(SC) wherein Their Lordships while dealing with Section 47 -A(4) of Stamp Act (II of 1899) held as follows: “ It is clear from the first sub-section extracted above that the Court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with penalty amounting to ten times the deficiency of the stamp duty. When the Court chooses to admit the document on compliance of such condition the Court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. When the Court chooses to admit the document on compliance of such condition the Court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the, stamp duty. If the Collector Is of the opinion that such instrument is chargeable with duty and is not duly stamped “ he shall require the payment of the property duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the property duty or of the deficient portion thereof. ” 9 Learned counsel for the petitioner also cited another Supreme Court decision in Hindustan Steel Limited v. Dilip Construction Company AIR 1969 SC 1238 : (1969) 1 SCC 597 wherein the discussion was taken up under Sections 35 and 36 of the Stamp Act. The relevant paragraph of the said decision reads as follows: “ 4. An Instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61 , be called. in question at any stage of the same suit or proceeding an the ground that the instrument has not been duly stamped. Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61 , be called. in question at any stage of the same suit or proceeding an the ground that the instrument has not been duly stamped. Relying upon the difference in the Phraseology between Section 35 and 36 ,it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument… ” 10 In Chilakuri Gangulappa v. Revenue Divisional Officer, Madanapalle and Another (supra) case, the dispute was with reference to an agreement for sale, while in Hindustan Steel Limited v. Dilip Construction Company (supra), there was arbitral award which was unstamped and on that account it was opposed as invalid and illegal and liable to be set aside. There was no occasion for the Court to discuss whether the document involved in dispute were compulsorily registrable. 11 The learned counsel for the petitioner also draws attention of this Court to a decision of this Court in V. Ponnusamy v. N. Namis Dhas and Others (1998) 1 MLJ 407 wherein E. PADMANABHAN, J., while discussing Section 38(2) and 40 of the Stamp Act, formulated and enumerated the procedures to be observed by the Court and the parties concerned. The observations in the said case go (sic) thus (Headnote): “ When a document insufficiently stamped is tendered but not admitted in evidence, the Court has to exercise discretion under Section 38(2) of the stamp Act and has to send the impounded document to the Collector. In other words, if the party filing the document wants it to be admitted in evidence, then only the Court shall collect the stamp duty and penalty and admit it in evidence. In other words, if the party filing the document wants it to be admitted in evidence, then only the Court shall collect the stamp duty and penalty and admit it in evidence. But, if the party, instead of requiring the document to be admitted in evidence merely wants to send it to the collector to be dealt with under Section 40 of the said act, the Court has no option but to send it to the Collector as provided under Section 38. The Court also cannot compel the party to pay the stamp duty and penalty and for admitting it in evidence. If the petitioner/plaintiff so chooses, he could either pay the stamp duty and penalty and if he is not prepared to pay the stamp duty and penalty at this stage, the Court has to forward the same to the collector and it cannot return the impounded document to the plaintiff/petitioner. ” In the above said case, at the time of admission of the plaint anomalous and unregistered mortgage deed was produced wherein the defendant had agreed to repay Rs. 30,000/- with interest. The trial Court required the plaintiff to remit the stamp duty and penalty payable on the mortgage deed. The decision proceeds on the basis of payment of stamp Duty and penalty upon the said deed. 12 The facts available in the present case are distinguishable. By means of the document, the respondent purported to have released his right in the property which definitely attracts Section 17 of the Registration Act. Section 17(1) (b) of the Act reads as follows: “ 17. Documents of which registration is 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, and if they have been executed on or after the date on which, Act No. 16 of 1864, or the Indian , 1866 (20 of 1866), or the Indian , 1871 (7 of 1871), or the Indian , 1877 (3 of 1877), or this Act came or comes into force, namely: (b) other non-testamentary instruments which purport 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. ” The said provision mandates that the document which extinguishes the right of a, person the present or in future of the value of Rs. 100/- and upwards, in immovable property be registered. Even though there is no discussion on this point in the order challenged before this Court, it assumes much importance in this case. When the document is compulsorily registrable under law, it can not be relied upon for any purpose. In my considered opinion, since the document appears to have been extinguished the right of the respondent in the property. I am of the considered view that as the document is registrable under Section 17 (b) of the Registration Act, it cannot be received in evidence despite the Stamp duty and penalty are paid. 13 In a decision rendered by me in Kaliyappan v. Kulanthaivelu 2011-1- L.W.189 where an unstamped partition agreement deed was produced before the Court and the Court below rejected the contention that there was an agreement in the partition agreement that the property to be divided on a future date and that no partition takes place on the date of execution of partition agreement. In the said case, the partition of agreement shows that by virtue of the document, the parties have divided the properties in the presence of witnesses and they got the properties mentioned in A and B schedule. I have recorded the finding therein that the intention of the parties could be gathered from the recitals contained in the agreement. They intended to create right over the properties by virtue of the document itself which is indicated by the recital to the effect that in the presence of witnesses, they have divided the properties. There is no option for this Court except to interpret the said recital that both of them by means of agreement divided the properties. Hence, the document would attract Section 2(15) of the Stamp Act and Section 17(1) (b) of the Registration Act. Finally I have held that the document is liable for stamp duty and compulsorily registrable and hence, it is not admissible in evidence. 14 Likewise in this case also, since by means of execution of the document, the respondent is stated to have released his right over the property. Hence, the document has to be registered and without registration, it could not be admitted in evidence. 14 Likewise in this case also, since by means of execution of the document, the respondent is stated to have released his right over the property. Hence, the document has to be registered and without registration, it could not be admitted in evidence. In the light of the above said observation, interference with the order passed by the Court below is not warranted, which deserves confirmed and It is accordingly confirmed. The revision suffers and is liable to be dismissed. 15 In the result, the civil revision petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.