The plaintiff is the revision petitioner in the above Civil Revision Petition which has been filed challenging the order dated 28.07.2009 of the District Munsif, Polur, in I.A.No.321 of 2009 in O.S.No.164 of 1999 in and by which the learned Judge has dismissed the application filed by the revision petitioner to reject Ex.B5 Sale deed on the ground that the same is not stamped as per Section 35 of the Indian Stamp Act and hit by the provisions of Section 17 of the Registration Act.
2. The facts in a nutshell required for considering this revision is narrated herein below:
a). The Revision Petitioner had filed the suit in O.S.No.164 of 1999 on the file of the District Munsif, Polur to declare his right over the 2nd item of the schedule mentioned property and deliver vacant possession of the same free of obstruction.
b). The Revision Petitioner, the deceased 1st defendant and 3 others namely Perumal, Krishnan and Harishchandran are brothers of the deceased 1st defendant, respondents 1 to 3 are his son, the 4th respondent is the wife of the deceased 1st defendant and the 5th respondent, his daughter. In an oral partition amongst himself and his brothers, of the property measuring an extent of 0.09.5 Hectares in S.No.221/B at Polur the revision petitioner had got a share of an extent of 1818 sq.ft described in the suit schedule. The other siblings were each given a share in the property. In the month of May 1997 the deceased 1st defendant had trespassed into the suit 2nd item of property without the revision petitioners consent and had remained there. The attempts to get the 1st defendant out of this encroached area went in vain. Ultimately the revision petitioner was constrained to file the suit.
c). The deceased 1st defendant apart from denying the various averments made in the plaint contended that the suit 2nd item was allotted to him under the partition. He further contended that the oral partition took place in the year 1989 and he had put up construction thereafter in the year 1990. He would submit that under this partition the property was divided into the north and south portions and the southern portion was shared by the Revision Petitioner and the 1st defendant and the northern portion by the other brothers and the sharing was 1550 sq.ft to the revision petitioner, 2442 sq.ft to the 1st defendant, 1800 sq.ft to Perumal, 1769 sq.ft to Krishnan and 1740 sq.ft to Harishchandran. He would therefore seek the dismissal of the suit.
d). During the chief examination of DW.1, an unregistered sale deed dated 08.04.1991 was marked as Ex.B.5 by the 1st defendant and therefore the revision petitioner came forward with the impugned application contending that the document could not be marked as it was not stamped as per the provisions of
Section 35 of the Indian Stamp Act and registered as Per
Section 17 of the Registration Act and therefore sought to have the same rejected.
e) The 3rd respondent herein filed the counter to this application inter alia contending that the respondent were not trying to assert any right under the document and was being filed only to show a that the claim of the revision petitioner that the oral partition took place in the year 1992 was false. He would also state that since the revision petitioner was only concerned with the non-stamping and non-registration of the document it implies that the revision petitioner is admitting this document.
f). The learned District Munsif by his order dated 28.07.2009 dismissed this petition stating that this document was being used only for collateral purpose and further since the revision petitioner had admitted this document it was not required to reject it, as the proof and relevancy could be tested at the time of trial.
3. Heard Mr.A.Rajendiran for the petitioner. Though notice was issued to the respondents, none appeared for them. The counsel for the petitioner would submit that the document was a sale deed in which handing over of the sale consideration and the possession was narrated and since the document creates a right over the property it has to comply with the provisions of
Section 35 of the Stamp Act and
Section 17 of the Registration Act. He would in support of his arguments provide the following decisions:-
(i) AIR 2009 SC Page 1489 Avinash Kumar Chauhan Vs.Vijay Krishna Mishra.
(ii) 2005 (3) L.W. Page 283 Amudha and others Vs. K.Jeyaraman and another.
(iii) 2006 (5) CTC Page 681 Duraisami Naidu and others Vs. C.Ramakrishnan and others.
(iv) 2010 2 MLJ Page 248 A.Pathrakali Vs. R.Senthilkumaran.
(v) 2011 (2) MWN (Civil) 594 Vasantha Ammal Vs. Gunasekaran.
4. Before proceeding to decide the issue it is necessary to recapitulate
Section 35 of the Stamp Act and
Section 17 of the Registration Act.
(i)
Section 35 of the Indian Stamp Act:-
35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :
Provided that
(a) any such instrument 6 [shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by
section 32 or any other provision of this Act.
(ii)
Section 17 of the Registration Act:-
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, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or 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;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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:] Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of
section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said
section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 1 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871), or the Land Improvement Loans Act, 1883 (19 of 1883); or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
5. Therefore from a reading of the above it is clear that where an instrument which is chargeable with duty is not so charged it is inadmissible as evidence for any purpose whatsoever which also includes collateral purpose. The 1st proviso to the section details the manner in which the same could be admitted in evidence. In the instant case, such a procedure contemplated under the proviso to
Section 35 has admittedly not been followed.
6. The Supreme Court in the judgment reported in AIR 2009 SC 1489 in the matter of Avinash Kumar Chauhan has held as follows:-
Para 21.
Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
7. This Court in the judgment reported in 2005 (3) LW page 283 has held as follows:
A conjoint reading of both
Sections 35 of the Indian Stamp Act, 1899 and 17(1)(b) of the Registration Act, 1908 in the light of the ratio of the above decision would indicate unmistakably that the unstamped and unregistered document, Ex.A-9 becomes inadmissible in evidence and it follows that the same cannot be looked into for any purpose.
8. The judgment reported in Avinash Kumar Chauhdan supra has been followed by this Court in the judgment reported in 2010 (2) MLJ 248 A.Pathrakali vs. R.Senthil Kumaran.
9. Thus it follows that a document is inadmissible in evidence even for a collateral purpose and this bar is absolute unless the requirements of the 1st proviso to
Section 35 of the Stamp Act are complied with.
10. The Learned District Munsif, Polur was therefore clearly in error in admitting the document on the ground that the same is for a collateral purpose and that the execution of the document was admitted by the Revision Petitioner.
11. In the result, the Civil Revision Petition is allowed. The order of the learned District Munsif, Polur in I.A.No.321 of 2009 in O.S.No.164 of 1999 is set aside and Ex.B.5 is rejected. There shall be no order as to costs. Considering the fact that the suit is of the year 1999 the learned District Munsif, Polur shall complete the proceedings within a period of three months from the date of receipt of the order. Consequently, connected miscellaneous petition is also closed.
06.09.2018 Index : Yes/No Internet : Yes/No speaking order /non-speaking order bsm To The learned District Munsif, Polur, Thiruvannamalai District, P.T.Asha, J.
bsm Order made in C.R.P.(PD) No.3051 of 2009 06.09.2018