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2025 DIGILAW 2887 (MAD)

Abdul Malik Saybu v. Haleemabee (deceased)

2025-08-01

P.B.BALAJI

body2025
ORDER : P.B. BALAJI, J. 1. The 1 st defendant in O.S.No. 232 of 2012, before the Additional District Munsif, Ulundurpet, is the revision Petitioner. 2. The plaintiffs have taken out an I.A.No.545 of 2019 under Order XIII Rule 8 of the Code of Civil Procedure, 1908 seeking to impound the unregistered partition deed dated 01.07.1993 and to collect deficit stamp duty. The said application was allowed by the learned Additional District Munsif, as against which the present revision has been preferred. 3. I have heard Mr.N.Muruganandam, learned counsel for the Petitioner and Mrs.S.Sasikala, learned counsel for the First Respondent. 4. The learned Counsel for the Petitioner, taking me through the order passed by the Trial Court, would state that the procedure adopted by the Trial Court is in direct conflict with the ratio settled by this Hon'ble Court in A.Devasikamani Gounder v. M. A. Andamuthu Gounder , reported in 68 LW 146. He would also rely on the Hon'ble Division Bench of the Andhra Pradesh High Court in K.Shantakumari v. K.Sushiladevi , reported in AIR 1961 AP 424 . He would also rely on the decision of this court in Nachi Muthu vs Ramanan reported in( 2024) 3 CTC 399 , where this Court held that when the plaintiff asserted title based upon a family arrangement under which property had been divided in praesenti, then the effect of non-registration of the document cannot be cured and same cannot be received in evidence. This Court further held that deficit stamp duty can be rectified by payment of the same with penalty, but however the effect of non-registration is not curable. 5. Relying on the said decisions, the learned counsel for the petitioner states that the Trial Court ought not to have directed the unregistered partition deed to be received in evidence, on payment of deficit stamp duty. He would state that the proper approach of the Trial Court should have been to decide the admissibility of the document in the first place and thereafter, proceed to find out whether the document requires any deficit stamp duty and penalty. He would therefore pray for the revision being allowed, setting aside the order of the Trial Court. 6. He would state that the proper approach of the Trial Court should have been to decide the admissibility of the document in the first place and thereafter, proceed to find out whether the document requires any deficit stamp duty and penalty. He would therefore pray for the revision being allowed, setting aside the order of the Trial Court. 6. Per Contra, Mrs.S.Sasikala, learned counsel for the 1st respondent, would submit that the partition deed dated 01.07.1993 is unregistered and under the said partition deed, the suit properties were allotted to one Sharunisha Beevi who has sold the same in favour of the plaintiff on 03.03.2009 and subsequently, the plaintiff was in enjoyment of the property and after his demise, plaintiffs 2 to 5, his legal heirs have been in absolute possession and enjoyment. She would therefore state that in order to establish the contentions raised in the plaint, it has become necessary to impound the partition deed and direct payment of deficit stamp duty and penalty. She would further state that the Trial Court has not committed any error in allowing the application filed by the plaintiffs. 7. The learned counsel would also rely on the decision of the Hon'ble Supreme Court in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra , reported in (2009) 2 SCC 532 where the Hon'ble Supreme Court held that if all purposes for which the document is sought to be brought in evidence are excluded, then there is no way the document would be admissible, even for collateral purposes. The Hon'ble Supreme Court further held that when adequate stamp duty has not been paid, the Court is empowered to pass an order in terms of Section 35 of the Stamp Act and Section 33 casts a statutory obligation on all the authorities to impound the document. 8. I have carefully considered the submissions advanced by the learned counsel on either side. 9. It is the specific contention of the revision petitioner that the partition deed cannot be impounded since, according to the revision petitioner, there was no such partition deed executed on 01.07.1993 in the first place and it is only in pursuance of a registered partition deed dated 27.09.1993 that the suit property was allotted to Sharunisha Beevi who subsequently conveyed the same in favour of the plaintiff. It is therefore the contention of the revision petitioner that unless the said partition deed dated 01.07.1993 had been registered, the same cannot be received in evidence and question of payment of stamp duty also does not arise. 10. The Trial Court finds that the said partition deed dated 01.07.1993 was a document that required compulsory registration under Section 17 (1)(b) of the Registration Act, 1908 . However, without stopping there, finding that the document is an un-stamped instrument and inadmissible in evidence even for collateral purposes, proceeded to impound the same. The said order of the Trial Court unfortunately is in direct conflict with the decision of this Court in the Devasigamani Gounder ’s case (referred herein supra), in which case, the Trial Court had held that the document was a deed of partition requiring stamp duty under the Stamp Act and also requiring payment of deficit stamp duty and penalty. 11. This Court found that the Trial Court failed to address the issue of the instrument falling under Section 17 and consequently, see whether it can even be admitted in evidence. This Court held that the curious procedure adopted by the Trial Court was wholly unsustainable. This Court further held that when an objection is taken to the admissibility of a document on the ground that it is not stamped and registered, then the Trial Court should decide both the questions and if the Trial Court finds that the document requires registration and it is inadmissible on the ground that it is unregistered, then the document itself will have to be rejected and the Court cannot first ask the document to be stamped and thereafter decide whether it would require registration. 12. The Andhra Pradesh High Court also following the decision of our High Court held that without deciding the question of admissibility, the Court cannot call upon payment of deficit stamp duty and penalty. These decisions would squarely apply to the facts of the present case. 13. An objection has been taken by the revision petitioner that the document requires registration and therefore, it is inadmissible in evidence. However, the plaintiffs want to impound the document and upon payment of deficit stamp duty and penalty, to rely upon the same, for collateral purposes. These decisions would squarely apply to the facts of the present case. 13. An objection has been taken by the revision petitioner that the document requires registration and therefore, it is inadmissible in evidence. However, the plaintiffs want to impound the document and upon payment of deficit stamp duty and penalty, to rely upon the same, for collateral purposes. When an objection has been taken that the document is inadmissible on account of the same being unregistered, then the issue of requirement of deficit stamp duty and penalty should be postponed and the Trial Court has to first decide whether the document can be admitted in evidence and if the Court finds that the document is admissible or can at least be received for collateral purposes, then the Trial Court should proceed to adjudicate the issue of payment of deficit court fee and penalty, if any. The Court, on the other hand cannot require payment of deficit stamp duty and penalty even before deciding the issue of admissibility of the document. 14. In view of the above, I am inclined to set aside the order of the Trial Court. The Trial Court having already found that the document is inadmissible, the question of impounding the document and requiring payment of deficit stamp duty and penalty does not arise. 15. In fine, this Civil Revision Petition is allowed and the order passed in I.A. No.545 of 2019 in O.S. No.232 of 2012 dated 10.04.2023, on the file of the Additional District Munsif Court, Ulunthurpettai, Kallakurichi District is set aside. Consequently, connected Miscellaneous Petition is also closed. No costs.