These Civil Revision Petitions are filed by the 1st Defendant against the order passed in IA.NOs.357 & 358/2009 in OS.No.299/2007 by the learned District Munsif, Tirumangalam dated 27.4.2009.
2. The 1st Respondent/Plaintiff had filed the above said suit for partition and for declaration that the Will and settlement deeds said to have been executed by the father of the Respondents is not binding on him and also for permanent injunction restraining the Petitioner/1st Defendant from in any way encumbering the suit properties. The Petitioner resisted the suit refuting the allegations made in the plaint by filing a Written Statement.
3. The suit had been taken up for trial and during the adduction of evidence of the 1st Respondent/Plaintiff, the 1st Respondent had filed an application in IA.NO.357/2009 to recall himself and another application in IA.NO.358/2008 seeking permission to mark an unregistered deed of family arrangement dated 26.8.1974 as a document on his side. According to the 1st Respondent, the suit properties are the ancestral properties left by his father and there was a family arrangement between his father and his brothers where under the suit properties were made liable for division.
4. The Petitioner resisted the said applications very strongly on the ground that the said document is inadmissible in evidence and PW.1 is not a competent witness to speak about the document, as he had no personal knowledge of the said document. It was also contended that the said unregistered deed of family arrangement cannot be looked into for any purpose, as it is an unregistered and unstamped document.
5. Mr.V.Chandrasekar, the learned counsel for the Petitioner reiterated the above said contentions and submitted that there was no explanation whatsoever from the 1st Respondent for not producing the documents at the earliest occasion either before the trial or at the time of examination of the witnesses on his side.
6. On the other hand, Ms.P.Malini, the learned counsel for the Respondents supported the impugned order of the court below and relied on the decision of the Honourable Supreme Court rendered in the case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra [2009-3-MLJ-409-SC} wherein the Honourable Supreme Court has held that under
Section 49 of the Registration Act, there is no prohibition to receive an unregistered document in evidence for collateral purpose, provided that the document so tendered in evidence should be duly stamped or comply with the requirements of
Section 35 of the Stamp Act. It is held that if the document is not stamped, it can be received only if duty and penalty are paid in accordance with
Section 35 of the Stamp Act.
7. The Ratio decidendi laid down by the Honourable Supreme Court is given below:-
"I.
Section 33 of the Stamp Act, 1899 casts a statutory obligation on all the authorities to impound a document. The Court being an Authority to receive a document in evidence is bound to give effect thereto.
II.
Section 35 of the Stamp Act, 1899 categorically provides that an unstamped document shall not be admitted for any purpose whatsoever. 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.
III. There is no prohibition under
Section 49 of the Registration Act, 1908 to receive an unregistered document in evidence for collateral purpose. But, the document so tendered should be duly stamped or should comply with the requirement of
Section 35 of the Stamp Act, if not stamped as a 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."
8. 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 requirement of
Section 35 of the Stamp Act. It is therefore clear that no document shall be admitted in evidence even for collateral purpose, if it is not properly stamped and if already not stamped then stamp duty should be paid with penalty as prescribed by the Code. The above position of law is well settled in the decision of the Honourable Supreme Court stated supra. Therefore, the Trial Court is right in permitting the 1st Respondent to pay the stamp duty and penalty, but of course subject to proof and relevancy.
9. In the present case, the impugned document though a deed of family arrangement, the 1st Respondent has relied upon the said document only to show the division of properties between his father and his brother in which the suit properties also figured. As already observed, the said document sought to be produced by recalling PW.1 is not on which the suit is founded. PW.3 from whom the Petitioner has purchased has spoken about the said family arrangement and he had been cross examined in detail by the Petitioner. Therefore, the court below is well within its power to permit the 1st Respondent to produce the document and recall PW.1 for the said purpose.
10. No doubt, the 1st Respondent/plaintiff had already examined his witnesses. The court below has held that the objections raised by the Petitioner regarding the competence of PW.1 to adduce oral evidence in respect of the aforesaid documents and admissibility would be considered at the time of arguments placing reliance on the decision of the Honourable Supreme Court stated supra. Order VII Rule 14 of CPC no doubt makes it imperative for the parties to produce the documents along with the plaint on which the suit is founded and also to enter other documents in a list of reliance to be added or annexed to the plaint as provided by the sub rule (2) of Rule 14 of Order VII of the Code. The aforesaid rule makes mandatory the production of documents which are the basis of the suit and where the Plaintiff sues upon the documents in his possession or power. Its rigour does not apply to the documents which are sought to be adduced as corroborative evidence in support of the claim made in the plaint.
11. It is one of the cardinal principles of the rules of natural justice that full opportunity should be afforded to the parties to produce their evidence and state their case before the court and the court ought to exercise discretion in favour of production of evidence. More so, when the documents have not been filed not for prolonging the trial or with ulterior motive and further the Defendants get adequate opportunity to disprove the same, the documents should be accepted and the Plaintiff should be permitted to prove the same in the interest of justice. However, it is made clear that the Petitioner has the right to raise objection regarding proof and relevancy of the said documents, which objection shall be decided by the trial court at the stage of arguments in accordance with law.
12. With the above said observations, these Civil Revision Petitions are dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The District Munsif, Tirumangalam