This Civil Revision Petition is filed against the order dated 8.12.2008 passed in IA.No.814/2008 in OS.No.37/2007 by the learned Principal District Munsif, Tirunelveli, rejecting the document as inadmissible in evidence and for want of registration and stamp duty.
2. The brief facts, which are essential for the disposal of this Civil Revision Petition, are as follows:-
The petitioner has filed the above said suit through his Power Agent for permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property. He had purchased the property by means of a sale deed from one Maideen Fathumal, who got the property from her husband under a settlement deed dated 12.11.1998 and her husband got the property by way of partition entered into between the heirs of Hasad Qutooz under the registered partition deed dated 25.2.1981. Pursuant to the said partition, the respective sharers were in possession and enjoyment and that some of minor sharers challenged the said partition by filing a suit in OS.No.134/1984 and as against the decree passed in the said suit, an appeal was preferred in AS.No.187/1991. Pending the appeal, the parties thereto entered into a compromise and executed an agreement of partition (ghfg;gphptpid xg;ge;jgj;jpuk;) dated 25.3.1992, wherein they agreed to enjoy the properties in terms of the partition effected between the legal heirs thereon.
3. According to the petitioner, the suit property and another property was allotted to Asiyal Beevi and her children, viz. Nisam, Sithi Marlia, Sharmila and the defendants 1 and 2. Pursuant to it, it is stated that there was an oral partition effected between Asiyal Beevi and her children on the one hand and the defendants 1 and 2 on the other hand on 5.1.1993. On the basis of the oral partition, the suit property was allotted to Nizam, who took possession and mutation was effected in the municipal records in his name and subsequently, executed a settlement deed dated 12.11.1998 in favour of his wife, who had sold the property to the plaintiff by way of a registered sale deed. The plaintiff has filed the suit based on the registered sale deed executed by his vendor dated 9.1.2007.
4. During the trial, when plaintiff was examined as PW.1 before the court below, he sought to mark the unregistered agreement of partition dated 25.3.1992, which was opposed by the respondents on the ground that it is inadmissible in evidence as it is insufficiently stamped and also not registered and it cannot be looked into for any purpose. An application was filed by the plaintiff in IA.No.814/2008 to admit the said document in evidence and the same has been dismissed by the court below by order dated 8.12.2008, which is challenged in this Civil Revision Petition.
5. Mr.S.Meenakshisundaram, the learned counsel for the petitioner would contend that the said document is only an agreement entered into between the first and second wives, sons and daughters of P.M.Hasan Qutooz in the presence of the Village mediators and it only evidences the family arrangement already entered into and therefore, it need not be stamped or registered. He would further submit that even if it would not be accepted in evidence in view of non registration and non stamping, at least it could be relied on for the collateral purpose by stating that his vendor and her husband were in possession and enjoyment of property sold to him pursuant to the said agreement of partition.
6. On the other hand, Mr.S.Kadarkarai, the learned counsel for the respondents would support the order of the court below by contending that the said document cannot even be looked into for collateral purpose. He would submit that the law is well settled that an unregistered and insufficiently stamped document cannot be received in evidence.
6. It is not in dispute that the suit is not for partition, but for permanent injunction restraining the respondents from interfering with the possession of the plaintiff and he bases his title on the sale deed executed by his vendor, who has derived title by way of settlement deed executed by her husband. Her husband got the property in a partition effected between the legal heirs of Hasan Qutooz.
7. The document in question is relied on by the plaintiff to show that the property sold to him was allotted to the husband of his vendor in a partition. It is submitted that it is in the nature of an agreement evidencing the family arrangement already entered into while compromise was effected between the parties in the appeal. Admittedly, this document is neither stamped nor registered. To what extent it can be relied on will depend upon the nature of the document. Though there is a recital regarding the prior family arrangement, but as there was a dispute over the said division, some of the heirs filed the suit and after compromise, the sharers have divided the property in terms of the agreement entered into between them dated 25.3.1992. While making division, the management of the school was included and they have agreed to manage the affairs of the school in turn system. In order to show that the suit property was allotted to the vendor of the plaintiff and mutation of records had taken place, the plaintiff wants to rely upon the said document. Under the law, a deed evidencing partition is required to be properly stamped and registered before it can be admitted in evidence. Whether this document can be looked into for collateral purpose has to be gone into.
8. In the case of R.Deivanai Ammal (deceased by LR) and another Vs. G.Meenakshi Ammal and others [AIR-2004-Madras-529], the Division Bench of this court has held that a family arrangement, which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar under
Section 35 of the Stamp Act.
9. As early as in the year 1962, the High Court of Andhra Pradesh in the case of Bhaskarabhotla Padmanabhaiah and others Vs. B.Lakshminarayana and others [AIR-1962-AP-132] has held that the document is inadmissible due to want of being stamped and further held that the words "for any purposes" in
Section 35 of the Stamp Act should be given its natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms.
10. The said position of law is reiterated in the subsequent decision of the High Court of Andhra Pradesh rendered in the case of Sanjeeva Reddi Vs. Johanputra Reddi [AIR-1972-AP-373] holding that no part of a document (be it a single sentence, a word or a signature) which is chargeable with duty can be received in evidence even if that document is sought to be admitted only for a collateral purpose. It is further held that there is prohibition under
Section 49 of the Registration Act to receive such a document, which required registration to be used for a collateral purpose. However, under
Section 35 of the Stamp Act there is an absolute prohibition unless the requirements of the proviso to that section are fulfilled.
11. The Honourable Supreme Court in the case of Bondar Singh and others Vs. Nihal Singh andothers [2004-1-LW-706] has held that under the law, a sale deed is required to be properly stamped and registered before it can convey title to the vendee, however the legal position is clear that a document like a sale deed even though not inadmissible in evidence can be looked into for collateral purpose.
12. In a recent decision of the Honourable Supreme Court rendered in the case of Avinash Kmar Chauhan Vs. Vijay Krishna Mishra [2009-3-MLJ-409-SC] it is laid down that
Section 35 of the Indian Stamp Act, categorically provides that an unstamped document shall not be admitted for any purpose whatsoever and it expressed it opinion that if all purposes for which the document is sought to be brought in evidence are excluded, there is no reason as to how the document would be admissible for collateral purposes. The Honourable Supreme Court referred to the observations made in 2004-1-LW-706 cited supra and distinguished it by observing that in the said decision the court was not concerned with the relevant provisions of the Indian Stamp Act and only interpreted the provisions of the Registration Act, 1908 which was in question. It held thus:-
"19. The contention of the learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh V. Nihal Singh (supra) this court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question."
13. Therefore, it is now well settled that there is no prohibition under
Section 49 of the Registration Act to receive an unregistered document in evidence for collateral purpose, but the document so tendered should be duly stamped or should comply with the requirements of
Section 35 of the Indian Stamp Act. If not stamped the said document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under
Section 35 of the Stamp Act.
14. In view of the settled position of law, the document in question cannot be received in evidence and the court below has rightly rejected the said document as inadmissible in evidence for want of registration and stamp duty, which does not suffer from any infirmity or illegality.
15. For the aforesaid reasons, there is no merit in this Civil Revision Petition and it fails and it is dismissed accordingly. No costs. Consequently, the connected MP is closed.
Srcm To:
The Principal District Munsif, Tirunelveli