IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1563 of 2010 Between:
Mehrunnisa Begum .. Petitioner AND M.A. Khadar and others ..
Respondents Petition against the order in I.A. No.385 of 2009 in O.S. No.96 of 2008 on the file of the Senior Civil Judge, Zaheerabad, Medak District, dated 09-03-2010.
The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri K. Lakshman, Advocate for the revision petitioner, and of Sri T. Lakshminarayana, Advocate for respondents 8 and 9, the Court made the following ORDER:
The order in I.A. No.385 of 2009 in O.S. No.96 of 2008 on the file of the Senior Civil Judge, Zaheerabad, dated 09-03-2010 is under challenge in this revision petition.
The petition was filed by the plaintiff under Order XIII Rule 3 and Section 151 of the Code of Civil Procedure to reject the document styled as ‘no objection certificate’ from the plaintiff and the 7th defendant, attempted to be exhibited and admitted into evidence through the 1st defendant as D.W.1. The plaintiff contended that the document could not have been confronted to the 1st defendant in his chief-examination as D.W.1 when it was filed by the 8th defendant and it could not have been admitted into evidence for want of required stamp duty and registration, as it amounted to relinquishment deed executed by the plaintiff and the 7th defendant in respect of the subject property. Defendants 8 and 9 contended that there is no prohibition against marking the document through the 1st defendant who was a witness to the document and the document cannot be treated as a conveyance or as a relinquishment requiring any stamp duty or registration, as no right is conveyed or transferred under the document.
After hearing both parties, the trial Court rendered the impugned order observing that the document can be confronted to D.W.1 by defendants 8 and 9 at the time of cross-examination, as D.W.1 was a witness to the document. The trial Court also observed that ‘no objection certificate’ is not a relinquishment deed executed by the plaintiff and the 7th defendant, as the recitals in the document do not convey any right or transfer any right in the property and also did not refer to any consideration. The trial Court referred to two decisions of this Court, whereunder the documents were considered to be not compulsorily registerable, but evidently the conclusions of this Court in the precedents were based on the facts of those cases and the contents of those documents. The trial Court further went on to opine that what all the ‘no objection certificate’ intended to convey was the intention of the executants that they had no objection to the sale deeds executed by the brothers and that they have no concern with the land which is the subject matter of the sale deeds. The trial Court also considered that the document cannot be considered to fall under the prohibition under Section 49 of the Registration Act when it is not a relinquishment deed and therefore, the ‘no objection certificate’ was held to be admissible in evidence not requiring any registration and the petition was dismissed.
The revision petitioner challenged the said order on the ground that the document could not have been confronted to D.W.1 during his chief-examination and the deed of relinquishment required registration under the Registration Act. The nomenclature of the document could not have been taken by the trial Court as the criteria and the document could not have been admitted into evidence.
Heard Sri K. Lakshman, learned counsel for the revision petitioner and Sri T. Lakshminarayana, learned counsel for respondents 8 and 9 at the stage of admission. As the document was filed into Court by defendants 8 and 9 who seek its admission into evidence, which is opposed by the plaintiff, the notice to other parties to the suit/respondents 1 to 7 herein is considered not necessary.
The only point for consideration is as to what is the nature of the document in question and depending on the nature of the document what would be its liability to any stamp duty and penalty or registration and the consequences thereof ?
Point:
It is seen from the plaint that the plaintiff specifically pleaded that she, her brothers-defendants 1 to 5, her mother- defendant No.6 and her sister-defendant No.7 became entitled to their respective shares in the suit schedule properties on the demise of her father Md. Gousuddin and based on such claim, she filed the suit for her share in A, B and C schedule properties. In the written statement filed by defendants 2, 3 and 7, the relationship of the parties and their entitlement to shares in the suit properties is admitted and it was specifically pleaded that when plaint C schedule property was sold to defendants 8 and 9 under registered sale deed by the brothers, it was with the specific understanding that the plaintiff and the 7th defendant should be given their legitimate shares. It was also admitted that such shares were not given to them. Though the 5th defendant appeared to have pleaded in his written statement about an earlier oral partition before elders, even defendants 8 and 9 in their written statement admitted that it was brought to their notice by defendants 1 to 5 that there was a panchayat before elders of the locality between the children of Md. Gousuddin, during which there was a settlement and consequential oral partition of the properties. Thus, it is evident that the plaintiff and the 7th defendant are admitted to be entitled to their shares as per Muslim law on the demise of Md. Gousuddin and the question in controversy in the suit is whether the plaintiff and the 7th defendant lost their right to any such shares in the suit properties due to the oral partition before the elders as pleaded by the defendants. It is during the trial into those questions in controversy that this document surfaced which was filed along with the written statement of defendants 8 and 9, under which the plaintiff and the 7th defendant were claimed to have expressed no objection for the sale deeds already executed by their brothers in favour of defendants 8 and 9 with their knowledge and they were also claimed to have declared that in future they have no right or interest or claim upon the said property. The document, therefore, clearly appears to be one under which the plaintiff and the 7th defendant seek to give up their right to a share in the property in question and as pointed out in Telugu Kishna Mohan and another v. Boggula Padmavathi and others[1] relied on by the learned counsel for the revision petitioner, mere nomenclature given to a document may not be always decisive and the recitals of the document may have to be gone into carefully apart from such nomenclature to understand the nature and scope of the document. The precedent also laid down that there cannot be any doubt whatsoever that the document, under which relinquishment of all rights in the immovable property have been specified, is liable for stamp duty and also registration. The learned Judge, in fact, referred to various precedents on the aspect and concluded that an unregistered relinquishment deed is inadmissible in evidence for any principal purpose, though it might have been relied on for a collateral purpose. In such cases, it was pointed out that it is the duty of the Court to reject the document, if it is inadmissible in evidence. Similarly, in a later decision in Venkata Krishna Reddy (died) by LRs. V. M. Anjinappa (died) by LRs. And others[2] again relied on by the learned counsel for revision petitioner, it was specifically laid down that if under the document in question, the executant is stated to have relinquished his rights over joint family property, the same amounts to relinquishment deed and unless the same is properly stamped and registered, it is inadmissible in evidence.
Under the circumstances, with reference to the pleadings of the parties above referred to and the contents of the so called ‘no objection certificate’, there can be no doubt that the document in question amounts to a deed of relinquishment in respect of the subject property by the plaintiff and the 7th defendant and has to be treated as such before it is attempted to be admitted in evidence.
That portion of the impugned order to the extent of permitting confrontation of the document to the 1st defendant as D.W.1 through the counsel for defendants 8 and 9 is concerned, the same is not shown to be opposed to any provision or principle of law, but in so far as the other part of the conclusions of the order about the nature of the document is concerned, the same is liable to be interfered with under the circumstances. It should be, however, made clear that if required stamp duty and penalty is paid on the document treating the same as relinquishment deed in respect of the property covered by it, the document will become admissible for any collateral purpose within the scope of Section 49 of the Registration Act, though it cannot be admitted in evidence for any principal purpose.
Accordingly, the order of the Senior Civil Judge, Zaheerabad in I.A. No.385 of 2009 in O.S. No.96 of 2008, dated 09-03-2010 is set aside to the extent of its conclusions about the nature of the document and the ‘no objection certificate’ in question is declared to be a relinquishment deed which is liable for stamp duty and penalty and registration and it is further declared that on payment of required stamp duty and penalty even in the absence of registration, the document may be admitted into evidence for a collateral purpose within the parameters of Section 49 of the Registration Act.
The civil revision petition is ordered accordingly. No costs.
G. BHAVANI PRASAD, J Date: 25-06-2010 Svv
[1] 2009 (5) ALD 579
[2] 2010 (3) ALD 389