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2013 DIGILAW 4161 (MAD)

Muthukumaran @ Muthu v. Sekar

2013-12-11

K.KALYANASUNDARAM

body2013
JUDGMENT 1. This civil revision petition is directed against the order dated 11.11.2009 passed by the District Munsif, Panruti, in O.S. No. 151 of 2009. 2. The petitioners are the defendants 1 and 2 in O.S. No. 151 of 2009 on the file of the District Munsif, Panruti. Respondents 1 to 4 herein have filed the suit for declaration of title and for permanent injunction. The averments in the plaint are that their grandfather-Venupillai had been in possession and enjoyment of the property for more than 100 years continuously and after his death, his son Pondurangan, who is the father of the plaintiffs, enjoyed the property and therefore, they are the owners of the suit property. The petitioners filed their written statement contending that the said Venupillai had four sons and they have entered into an oral partition and after few years, they have reduced the oral partition into writing called ‘Partition List’, on 21.9.1974. So the petitioners contended that as per the partition, they are entitled to share in the suit property. 3. During trial, the defendants produced the Partition List, dated 21.9.1974. The same was objected by the respondents on the ground that it is an unregistered document and cannot be relied on for any purpose. The learned District Munsif, Panruti, held that the document requires registration under the Registration Act, and since it is an unregistered document, it cannot be accepted. Due to the non-registration, the document was rejected by the learned District Munsif. Aggrieved by the said order, the petitioners have filed the above revision. 4. Heard Mr. R. Gururaj, the learned counsel for the petitioners and Mr. S. Kinston Jerold, the learned counsel for the respondents. 5. It is contended by the learned counsel for the petitioners that the Partition List dated 21.9.1974 is only a record of past events and therefore, it does not require registration. The learned counsel further submitted that even if the document requires registration, the Court has to impound the unregistered document and send it to the District Collector for collection of stamp duty and only after payment of stamp duty and penalty, the question of marking the document would arise. The learned counsel also contended that the unregistered document is admissible in evidence for collateral purpose. Therefore, the order of the Court below rejecting the document, is not sustainable in law. The learned counsel also contended that the unregistered document is admissible in evidence for collateral purpose. Therefore, the order of the Court below rejecting the document, is not sustainable in law. The learned counsel relies on the judgments of the Honourable Apex Court as well as this Court reported in (i) AIR 1960 SC 335 – Mst. Rukhmabai vs. Lala Laxminarayan and others (ii) 2001-3-L.W.113 (S.C.) – Chilakuri Gangulappa v. Revenue Divisional Officer, Mandanpalle and another, (iii) (2003) 4 SCC 161 – Bondar Singh and Others v. Nihal Singh and Others and (iv) AIR 2001 Madras 135 – A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar and others and (v) 2013-3-L.W.381 - The Chairman & Managing Trustee Krishnaswamy Educational Trust rep. by N.A.K. Balakrishnan v. Tmt. C.V. Rajeswari Ammal (Deceased) & others. 6. The Partition List dated 21.9.1974 has been enclosed in the typed set of papers, which does not show that there was earlier partition between the father of the plaintiffs and the father of the defendants, as contended by the learned counsel for the petitioners and it was subsequently reduced into writing. On the other hand, it is stated as if the properties were partitioned on the date of the document. So, the contention of the petitioners that there was partition effected earlier and it was reduced into writing on 21.9.1974 does not merit acceptance. 7. The learned counsel for the petitioners has relied on the judgment of the Division Bench of this Court reported in AIR 2001 Madras 135 – A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar and others for the proposition that if oral agreement was already made and when it was reduced into writing subsequently, the same need not be registered and stamp duty need not be paid. The said judgment is not applicable to the facts of this case. 8. The learned counsel also relied on the judgment of the Honourable Apex Court reported in (2003) 4 SCC 161 – Bondar Singh and Others v. Nihal Singh and Others and 2013-3-L.W.381-The Chairman & Managing Trustee Krishnaswamy Educational Trust rep. by N.A.K. Balakrishnan v. Tmt. C.V. Rajeswari Ammal (Deceased) & Others and argued that un-stamped and unregistered documents can be relied on for collateral purpose. 9. by N.A.K. Balakrishnan v. Tmt. C.V. Rajeswari Ammal (Deceased) & Others and argued that un-stamped and unregistered documents can be relied on for collateral purpose. 9. In the cited judgments, the parties have relied on the documents to prove their nature of possession and they did not claim title on the basis of the documents. In the above facts, the Honourable Apex Court and the Division Bench of this Court have held that unregistered and un-stamped documents can be accepted for the collateral purpose of seeking the nature of possession of the parties. But in this case, the petitioners claimed title on the basis of the Partition List. Therefore, the above judgments are not helpful to the case of the petitioners. 10. The Honourable Apex Court in the judgment reported in 2001-3-L.W.113 (S.C.) – Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and another has decided the course to be adopted by the Court when the un-stamped and unregistered documents are filed in the Court. In that case, an agreement for sale was filed and the trial Judge, impounded it and forwarded the instrument to Revenue Division Officer for the purpose of taking further action on it. The Revenue Divisional Officer instead of considering the procedure under Section 38 of the Stamp Act, decided the issue under Section 47-A of the Stamp Act. The Honourable Apex Court found that the procedure was not correct and has observed as follows: “12. 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 a 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 need 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 Collector 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. But if the party refuses to pay the amount aforesaid the Collector 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 proper 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 proper duty or of the deficient portion thereof.” 13. In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial Court. In the present case, the trial Court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the Court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the Court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount, the Court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed. 14. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed. 14. In as much as none of the above proceedings had been adopted by any of the authorities including High Court, we set aside the impugned orders. We direct the Munsif to consider first whether the document is insufficiently stamped and if he finds that question in the affirmative, he has to adopt the next step indicated above.” 11. In the light of the dictum laid down by the Honourbale Apex Court, the order dated 11.11.2009 passed in O.S. No. 151 of 2009 is set aside and the matter is remitted back to the District Munsif, Panruti, for fresh consideration in the light of the judgment referred to above. 12. In the result, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.