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2014 DIGILAW 4599 (MAD)

Ramalingam v. Ramachandran

2014-12-16

K.RAVICHANDRA BAABU

body2014
JUDGMENT K. RAVICHANDRABAABU, J. 1. The petitioners are the plaintiffs in O.S. No. 878 of 2004 on the file of the Additional District Munsif Court, Cuddalore. The respondent is the defendant therein. 2. The said suit was filed for declaration that the plaintiffs are vested remainder holders of the first item of the suit properties; to declare the title of the plaintiffs in respect of item Nos. 2 to 4 of the suit properties; for permanent injunction restraining the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of items 2 to 4 of the suit properties and for permanent injunction restraining the defendant from alienating the suit properties. In the said suit, the plaintiffs sought to mark the document dated 20.11.1999 claimed to be the family arrangement deed between the plaintiffs and the defendant. 3. The defendant filed I.A. No. 1811 of 2009 to reject the said document on the reason that the same is a forged one, as the defendant had never executed the same and that the same cannot be marked for any purpose for want of registration. The said application was opposed by the plaintiffs by contending that it is only a family arrangement evidencing the agreement arrived at between the parties earlier and that the document does not create right or title in the suit properties, but only affirms the pre-existing right of the parties. The trial Court, after considering the rival submissions of the parties, allowed the application by holding that the document purports to create and extinguish right, title and interest over the immovable properties on the parties and it is not a family arrangement evidencing the agreement arrived at between the parties earlier, and therefore, the same ought to have been registered. Thus, the Court below found that the document having not been properly stamped and registered, the same is not admissible in evidence. Challenging the said order, the present Civil Revision Petition is filed by the plaintiffs. 4. Mr. R. Subramanian, learned counsel for the petitioners/plaintiffs submitted that the document is not in effect the partition deed itself, creating rights on the parties, and on the other hand, it only recognises the rights already created on the parties and therefore, it does not require registration and consequently, the trial Court was not justified in rejecting the document as inadmissible in evidence. 5. 5. Per contra, learned counsel for the respondent/defendant submitted that the very reading of the disputed document itself would show that it is a partition deed creating right on the parties on the date of execution, and therefore, it requires registration. Thus, he contended that in the absence of registration, the document cannot be marked as evidence and the question of considering the document even for collateral purpose, does not arise in this case, since the very claim made by the plaintiffs is based on the said document alone. In support of his submissions, learned counsel for the respondent relied on the following decisions of this Court:- (i) Lakshmipathy A.C. vs. A.M. Chakrapani Reddiar and Others, 2001 (1) LW 257 (ii) Rajamanickam and Others vs. Elangovan and Others, 1998 (1) LW 443 (iii) Order dated 04.12.2007 made in C.R.P. No. 3273 of 2007 6. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 7. In this case, the petitioners as plaintiffs filed the said suit for declaration and permanent injunction as stated supra in respect of the suit properties. A perusal of the plaintiffs' case as stated in the plaint would show that they rely upon the said document dated 20.11.1999 in support of their claim in the present suit. In fact, in paragraph 3 of the plaint, the plaintiffs have stated that a family arrangement was entered into between the plaintiffs and the defendant on 20.11.1999, by and under which, the defendant has relinquished his interest in the suit properties. It is further stated therein that in pursuance of the family arrangement deed, the plaintiffs are in possession and enjoyment of items 2 to 4 of the suit properties. Therefore, it is evident that the said document dated 20.11.1999 is the document, based on which the entire suit claim is made by the plaintiffs. 8. When that being the position, it has to be seen as to whether the said document has created right on the parties on the date of its execution or it has simply recorded the right already created between the parties earlier. 8. When that being the position, it has to be seen as to whether the said document has created right on the parties on the date of its execution or it has simply recorded the right already created between the parties earlier. It is well settled that if a document creates a right on the parties, either by way of partition deed or by way of family arrangement, on the date of its execution, such document certainly requires registration and if the same is not registered, it cannot be admitted in evidence, if such document is the basis for the relief sought for in the suit. No doubt, such document can be relied on for collateral purpose, as contemplated under the proviso to Section 49 of the Registration Act, even though it is not registered. However, that could be possible only when the same is sought to be relied on only for collateral purpose depending upon the facts and circumstances of the case and the nature of the relief sought for in such suit. If the purpose of reliance on the said document is to establish the claim of title over the suit property, it cannot be admitted in evidence, if the same is not registered. 9. With the above legal position, if the document dated 20.11.1999 is looked into, it would certainly show that it is not a document which only records the partition of properties that had already taken place and given effect to, as contended by the plaintiffs. This Court has carefully gone through the said document and finds that no where it indicates that it records the arrangement already arrived at between the parties earlier. On the other hand, as rightly pointed out by the trial Court, it is a partition deed, which creates and extinguishes the right, title and interest over the immovable properties on the parties to the document on the date of its execution and therefore, when the document having not been registered, cannot be permitted to be marked. In this case, as already pointed out, the said document is the sole basis for the plaintiffs to claim their relief in the suit. Therefore, it cannot be contended that for collateral purpose, the said document can be considered, when admittedly the suit is one for declaration of title to the suit properties as well. 10. In this case, as already pointed out, the said document is the sole basis for the plaintiffs to claim their relief in the suit. Therefore, it cannot be contended that for collateral purpose, the said document can be considered, when admittedly the suit is one for declaration of title to the suit properties as well. 10. In a decision of this Court reported in Lakshmipathy A.C. vs. A.M. Chakrapani Reddiar and Others, 2001 (1) LW 257 , the Division Bench held in paragraph 42 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 prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, 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 depends upon facts and circumstances of each case. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes. (viii) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person cannot 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 Section-35 of the Indian Stamp Act.” 11. In an unreported decision of this Court in C.R.P. No. 3273 of 2007, dated 04.12.2007, a learned Judge of this Court observed in paragraph 11 as follows:- “11. Therefore, a reading of the entire agreement clearly shows that there is no recital to the effect that it is for recording the earlier partition which had already taken place the said agreement was entered. In that view of the matter, there is absolutely no difficulty to come to the conclusion that the said agreement cannot be marked as a document, since it requires to be stamped and registered so as to be admitted in evidence.” 12. In Rajamanickam and Others vs. Elangovan and Others, 1998 (1) LW 443 , a learned Judge of this Court has observed in paragraph 8 as follows:- “8. It is not in dispute that the document is unstamped and unregistered and the purpose of marking the document in evidence, as stated earlier, is only to establish the allotment of properties to Thayyalnayagi and that cannot be done, unless the partition is made out. Under those circumstances, the Court below fell into an error in holding that the document could be received in evidence for collateral purpose, overlooking that the document was attempted to be put in only to establish the partition as put forward in the written statement and nothing else. It is not in dispute that even the Court below had found in Paragraph 2 of its order that from the terms of the document, it was once of partition and in that the Court below was right. It is not in dispute that even the Court below had found in Paragraph 2 of its order that from the terms of the document, it was once of partition and in that the Court below was right. In that event, as pointed out by the Supreme Court in Roshan Singh vs. Zile Singh, AIR 1988 SC 881 : (1989) 2 LW 98, when the document purports by itself to effect a division and embodies all the terms of the bargain, it will be necessary to register it and if it is not registered, Section 49 of the Registration Act will prevent its being admitted in evidence, and evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872.” 13. Considering the above facts and circumstances and also following the above decisions of this Court, I am of the view that the petitioners/plaintiffs are not having any merits to succeed in this Civil Revision Petition. The trial Court has rightly allowed the application and rejected the said document to be marked on the side of the petitioners/ plaintiffs. I find no error or illegality in the impugned order of the trial Court. Accordingly, the Civil Revision Petition fails and the same is dismissed. Since the suit is of the year 2004, the trial Court is directed to take up the main suit in O.S. No. 878 of 2004 and dispose of the same on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs. The Miscellaneous Petition is closed.