K Narender, Secunderabad v. K. Mallesh, Secunderabad And Four Others

THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI Civil Revision Petition No.4707 of 2017 ORDER:

This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful respondent/ defendant is directed against the orders, dated 24.07.2017, of the learned I Additional Chief Judge, City Civil Court, Secunderabad, passed in I.A.No.136 of 2017 in O.S.No.59 of 2000 filed by the petitioner/ plaintiff.

2.

The parties in this revision shall hereinafter be referred to as plaintiff and defendants as arrayed in the original suit for convenience and clarity. 3.

I have heard the submissions of Sri P.R.Prasad, learned senior counsel appearing for the defendant/ revision petitioner herein, and of Sri G.Vasantha Rayudu, learned counsel for the plaintiff/ 1st respondent herein. The other respondents who are the other defendants are stated to be not necessary parties. I have perused the material record.

4.

The facts, which are necessary to be stated as a preface to this order, in brief, are as follows:

The plaintiff brought the suit against the defendants including the revision petitioner/ 1st defendant for partition and other reliefs. The 1st defendant is resisting the suit by filing a written statement. During the pendency of the suit, the plaintiff filed the aforesaid interlocutory application under Section 66 (a) of the Indian Evidence Act, 1872, read with Section 151 of the Code of Civil Procedure, 1908, ('the code') requesting the trial Court to permit to exhibit, apart from other documents, the following two documents: (i) deed of settlement of family properties (movable and immovable); and, (ii) an agreement. At an earlier stage of trial, the trial Court refused to accord permission to exhibit the documents. In fact, at that stage, the defendants objected for exhibiting the said documents on the ground that the documents

are photostat copies of non-existent originals; and, hence, they cannot be marked. Thereafter, I.A.No.42 of 2005 has been filed by the plaintiff seeking review of the said order whereby permission was refused for marking the said documents; and, the trial Court allowed the review application and permitted to mark the said two documents as exhibits A84 and A85 by treating the same as secondary evidence. Assailing the said order, CMA Nos.1179 & 1180 of 2005 were filed before this Court. This Court allowed the said appeals, by a common judgment, dated 31.12.2007. The operative portion of the said common judgment reads as under:

" In view of the above, we consider that the order passed permitting the Exs.A84 and A85 to be marked, without in any manner ensuring about their accuracy with their originals, is erroneous. It is all the more so, when the appellants/ defendants have disputed the very existence of the originals of Exs.A84 and A85, coupled with the fact that they were sought to be introduced at a far belated stage.

For the foregoing reasons, both these C.M.As are allowed setting aside the impugned order passed in I.A.42/ 2005 in O.S.59/ 2000. However, in the circumstances, there shall be no order as to costs."

Aggrieved thereof, the plaintiff filed Civil Appeal Nos.6841-6842 of 2008 before the Supreme Court. The Supreme Court, in the order dated, 15.10.2015, noted that the order of the High Court, which is impugned was passed at the interlocutory stage during the pendency of the suit; and, the Supreme Court while inter alia holding that the question involved is with regard to admissibility of the two documents, eventually held as follows: " In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliability and registrability of the documents shall be considered independently only at the time of hearing of the trial and not

prior thereto. All questions with regard to the aforesaid issues shall remain open.

The appeals are disposed of as allowed.

No order as to costs."

5.

Later, the plaintiff filed I.A.No.136 of 2017, that is, the subject application to permit the plaintiff to rely upon exhibits A84 and A85 as secondary evidence. The said application was resisted by the 2nd defendant by filing a counter. On merits and by the orders impugned in this revision, the trial Court allowed the petition. The relevant paragraphs of the very brief discussion portion including the operative portion of the impugned order read as under:

" The petition averments show that the documents are in the possession of the defendants. Therefore, the Xerox copies can be received U/ S 65(a) of Indian Evidence Act. Moreover, the order of the Hon'ble Supreme Court is that the admissibility of the said documents can be decided at the time of hearing of the trial which is interpreted by this Court as at the time of passing the judgment.

However, marking of the said documents itself does not stands proved of the document unless they are supported by oral evidence. Therefore, it is safely concluded that no hindrance will be caused to the respondents/ defendants by marking the Xerox copies, as the respondents/ defendants are at liberty to rebut the evidence of the petitioner/ plaintiff during cross-examination. In the result, the petition is allowed and the two Xerox copies of documents are marked as Ex.A-84 & Ex.A-85." (Reproduced verbatim) 6.

Aggrieved thereof, the 1st defendant filed this revision. 7.

In this backdrop of facts and chronology of events, it is necessary to now refer to the pleadings of the parties in the subject interlocutory application.

8.

The case of the plaintiff in support of the request to permit him to rely upon the above said two documents (hereafter referred to, as 'exhibits A84 & A85') as secondary evidence, in brief, is as follows: The objection for marking the subject documents is that the said documents are photostat copies. Though the documents were originally refused to be marked, on a review application filed and allowed, the trial Court permitted to mark the documents. Though the CMAs preferred were allowed by this Court, the Supreme Court by common order, dated 15.10.2015, allowed Civil Appeal Nos.6841-6842 of 2008 and directed as follows: " In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliability and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.

The appeals are disposed of as allowed.

No order as to costs."

The Supreme Court in its wisdom thought it fit and appropriate that disputes amongst the brothers should be settled out of the Court and, therefore, appointed Hon'ble Sri Justice M.Jagannadha Rao, as an Arbitrator to settle the disputes between the parties. After a long time, a report was sent stating that there is no meeting of the two parties. Thereafter, the Supreme Court passed orders, dated 15.10.2015. Then, the trial Court permitted to lead additional evidence as per the orders of the Supreme Court. Since three Courts have dealt with the issue regarding the admissibility of secondary evidence and as already notices were given three times to the other side calling upon the other side to produce the originals, which according to the plaintiff are in their custody, it was felt that there is no need to invoke the provisions of Section 66(a) of the Indian Evidence Act. Nonetheless, the defendants, in their reply, given through the counsel, denied the custody of the originals and raised an

objection to the marking of the documents. However, the trial Court observed that an application shall be filed seeking permission of the Court to lead secondary evidence. Hence, the present petition is filed to permit the plaintiff to rely upon exhibits A84 and A85 as secondary evidence. The suit for partition is based on the contention that the father of the plaintiff, K.Sayalu, died intestate and, therefore, his estate devolved upon his sons, as per the provisions of Section 8 of the Hindu Succession Act. The opposite parties have set up a forged and fabricated Will, dated 27.02.1989, said to have been executed by the father of the plaintiff, K.Sayalu. The said Will is not registered and is only notarized and is exhibited as exhibit B1 after the witnesses concerned were examined out of turn.

Exhibit A84 is not being pressed into service to prove the partition, but is being relied upon as a piece of evidence to falsify the stand taken by the other side that the father of the plaintiff executed the Will. Exhibit A84 is being relied upon for collateral purpose as per the provisions of Sections 17 and 49 of the Indian Registration Act. Exhibit A85 which is a document contemporaneous to exhibit A84 is only an agreement and it was attested by the same witnesses; and, the two documents support the claim of the plaintiff. The contention of the defendants with regard to the genuineness of signatures on exhibit A84 and other contentions cannot be permitted to be canvassed at the stage of trial and such contentions can be permitted to be canvassed after the evidence is let in and the documents are permitted to be marked.

No doubt, exhibits A84 and A85 are not registered; and, they are not the base documents for the suit for partition. They are being pressed into service to falsify the contention of the defendants with regard to execution of exhibit B1 Will. The said documents are being filed and are being sought to be exhibited to demolish the false claim of the defendants that Sayalu executed a notarised Will, exhibit B1. The gift deeds in respect of all properties except in respect of the agricultural land, which were executed by late Sayalu and the legal heirs of K.

favour of the defendants, also establish that the said documents were executed in the manner set out in exhibit A84-settlement deed, and exhibit A85agreement. Late K. Sayalu, in his suit O.S.No.3382 of 1987 on the file of I Assistant Civil Court, Secunderabad, filed against one Narender clearly stated in the plaint in the said suit that the joint family properties including the properties mentioned in the schedule would be distributed equally among his four sons. The certified copy of the plaint in the said suit is exhibited as exhibit A74. The said suit is confined to agricultural land. Similarly, in respect of land at Bholakpur, K.Balamani and nine others including the defendants herein filed O.S.No.2919 of 1982 against B.Satyanarayana and the plaintiff herein by impleading him as 2nd defendant.

A decree was passed in the said suit and in the said suit it was held that the 2nd defendant, that is, the plaintiff herein would also get a share in the lands covered by the said suit. The recitals in the said decree are also in accordance with the settlement deed, that is, exhibit A84. In respect of item no.1 of plaint 'A' schedule, neighbours had filed two suits in O.S.No.4204 and 4205 of 1987 against K.Sayalu and others. A decree was passed in the year 1990 after the death of K.Sayalu. Exhibit A89 is a letter addressed by K.Pochaiah, Secretary to Yerukula Sangam to the Station House Officer, Karkhana Police Station.

In the said letter, it is stated that there was a family dispute in the year 1973 and that the matter was discussed as joint family dispute and thereafter, father and four sons entered into an agreement in respect of all immovable properties and they have invited Sangam Members who have agreed for settlement and signed as witnesses. The said fact also supports the case of the plaintiff that there was settlement under exhibit A84. The further fact that the four shares were allotted by this Court in respect of the land at East Maredpally, which is shown as item no.2 of the plaint schedule, would also support the case of the plaintiff that the said decree was passed as per law. Hence, it is necessary to permit the plaintiff to rely upon exhibits A84 and A85 as secondary evidence.

9.

The averments in the counter of the 2nd respondent filed on behalf of the respondents, in brief, are as follows:

The material averments in the affidavit filed in support of the petition are false. The same are specifically denied. No valid and reasonable grounds are disclosed in the affidavit to grant permission to the plaintiff to rely upon exhibits A84 and A85 as secondary evidence. The application is belated and is liable to be dismissed. The plaintiff sought permission for marking the documents, way back, on 12.03.2004, without filing any application and to permit to adduce secondary evidence. At that time, objections were raised by this defendant. The matter went up to Supreme Court and the Supreme Court directed to consider objections at the time of trial. The evidence of the plaintiff was closed, on 20.01.2004. DW3 was also examined. On 23.01.2017, the written arguments were filed, on the aspect of admissibility of exhibits A84 and A85.

It is clearly stated by this defendant that without the leave of the Court and without explaining the delay, the plaintiff cannot mark the documents. It is obligatory on the part of the parties to produce the documents in original before the settlement of the issues, in view of the provisions of Order VII Rule 14 of the Code. Unless it is proved that the copies are made from the original and unless copies are made by mechanical process, which in themselves ensure the accuracy of the copies, such copy cannot be received in evidence. Exhibits A84 and A85 on a bare look would show that the first and third defendants have not appended their signatures to the documents. The signature of the 2nd defendant is denied. The requirements of Section 65 of the Indian Evidence Act have not been established.

Exhibits A84 and A85 are inadmissible in evidence. The contents of the alleged documents are totally inconsistent with the pleas raised by the plaintiff. Exhibits A84 and A85 are irrelevant for the purpose of the present case.

under Order VII Rule 14 of the Code and Sections 63 & 65 of the Evidence Act. The suit was dismissed, on 17.10.2014, and was restored on 25.10.2016. No order was passed by the then Presiding Officer, on 15.10.2015, for production of witnesses on 10.06.2016. The contrary allegation is false. In reply to the notice to produce the documents, this defendant clearly stated that no such original documents are in existence. The execution of the Will by the father is one of the issues in the suit. In the present suit, the plaintiff is not seeking the relief of allotment of his share that fell to the share of his father. The plaint averments would show that the suit is filed for all the properties and is not restricted to the share of the father of the plaintiff. The averments are baseless and misconceived. Hence, the petition may be dismissed. 10.

Learned counsel for the parties advanced arguments in line with the pleadings of the parties.

11.

Learned senior counsel appearing for the 1st defendant submits that the original documents are not in the custody of the 1st defendant and that certified copies being sought to be produced are alleged copies of non existent originals; and, since the originals are not in existence, the question of marking copies by assuming that the originals are existing and according permission to the plaintiff to rely upon exhibits A84 and A85 as secondary evidence does not arise for consideration. At the inception, no permission was sought for production of secondary evidence and no foundation is laid for production of secondary evidence. Unless the party proves existence and execution of the original document, secondary evidence of such document is inadmissible in view of the decision of the Supreme Court in Yashoda v. Shoba Rani1. Even according to the plaintiff also, the documents are compulsorily 1 (2007) 5 Supreme Court Cases 730

registerable. The transactions covered by the documents require the documents to be stamped and registered. The alleged original documents are neither stamped nor registered. Even assuming for a moment that the originals are in existence, when they are not registered and are stamped as required under the Indian Stamp Act and when once the alleged originals are not before the Court, the photostat copies or certified copies of the originals cannot be permitted to be produced as secondary evidence as stamp duty and penalty can be collected only on the original documents, but not on the photostat copies or certified photostat copies. A document, which is required to be stamped, but not stamped and is not registered cannot be received in evidence even for collateral purpose or as secondary evidence unless the document is duly stamped.

If a document, which is required to be stamped, is not stamped, it cannot be received even for collateral purpose unless it is duly stamped or duty and penalty are paid as required under Section 35 of the Indian Registration Act. In the case on hand, since the alleged originals are not admittedly stamped, and as the stamp duty and penalty cannot be collected on copies, the documents cannot be received even for collateral purpose. Therefore, both the documents are inadmissible in evidence in view of the decision of the Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra2 and a decision of this Court in Bachu Laxmapati v. Bachu Kistaiah & Others3. The Supreme Court clearly held in its order in civil appeal nos.

prior thereto. The Supreme Court also observed in its order as follows: " all questions with regard to the aforesaid issues shall remain open." Hence, the trial Court was in error in allowing the petition of the plaintiff.

12.

Learned counsel for the plaintiff while supporting the orders impugned stated that the documents are not mere photostat copies of the originals, but they are certified photostat copies and that the Supreme Court by its orders permitted the documents to be marked and set aside the orders of this Court in CMA Nos.1179 & 1180 of 2005 observing inter alia that the High Court should not have interfered with the orders of the trial Court at the stage when the trial was still in progress and directed that the admissibility, reliability and registrability of the documents shall be considered independently by leaving the said questions open; and hence, the trial Court has to consider the said questions only at a later stage and the decision of the Supreme Court which is rendered in the proceedings between the parties is final and binding. Hence, the trial Court was justified in passing the order impugned.

13.

I have bestowed my attention to the facts and submissions. 14.

The prayer in the application of the plaintiff is to permit the plaintiff to rely upon exhibits A84, which is a deed of settlement, and exhibit A85, which is an agreement as secondary evidence. According to the plaintiff, the originals of the said documents are in the custody of the opposite parties. When a notice was issued on behalf of the plaintiff to the defendants to produce the originals of the said documents, the defendants issued a reply through their counsel stating that the originals

are non-existent. According to the defendants, the alleged photostat copies of the documents are copies of non-existent originals. Be that as it may. On the same ground, the defendants raised an objection for marking the documents. The trial Court once refused to mark the documents; but, later allowed the review petition filed by the plaintiff and permitted to mark the said two documents also. The said order was set aside by this Court by a common order passed in the CMAs preferred before this Court.

The Supreme Court while allowing the civil appeals, had set aside the order of this Court by observing that the High Court should not have interfered at a stage when the trial was still in progress and left open the admissibility, reliability and registrability to be considered independently only at the time of hearing of the trial and not prior thereto. The relevant portion of the order of the Supreme Court is already extracted supra. Admittedly, even assuming for a moment that the originals are in existence, they are unstamped and unregistered. The plaintiff in the affidavit filed in support of the petition submits that the documents are not being relied upon to prove the partition, but are only being relied upon for collateral purpose.

The specific case of the plaintiff, which requires reiteration, is as follows: " It is therefore clear that Ex.A84, which is an unregistered document, is not being pressed into service to prove partition but only as a piece of evidence to falsify the stand taken by the other side that my father executed a Will. Therefore Ex.A84 is being set up for collateral purpose and therefore the provisions of Section 17 of the Registration Act are not attracted. On the other hand the provisions of Sec.49 of the Indian Registration Act are applicable to the facts of the case."

Since exhibit A85 is a document contemporaneous to the document under exhibit A84, the plaintiff wants to rely upon the said document also for collateral purpose. Though the documents are certified copies, they are certified photostat copies. Thus, they are not original documents. Now the only request of the plaintiff at this stage of the matter is to accord permission to rely upon the said two documents by permitting the plaintiff to produce the same as secondary evidence.

The defendants now alternatively contend that even assuming for a moment that the originals of exhibits A84 and A85 are in existence and are not in custody of the plaintiff, even then, the documents exhibits A84 and A85 being certified photo copies are inadmissible in evidence as the originals are unstamped and unregistered and stamp duty and penalty cannot be collected on copies and stamp duty and penalty can be collected only on the originals. Per contra, learned counsel for the plaintiff reiterates that since the documents are certified copies, they can be admitted for collateral purpose even without payment of stamp duty and penalty. 15.

In this backdrop, it is necessary to refer to Section 49 of the Indian Registration Act, which reads as follows:-

49. Effect of non-registration of documents required to be registered.-No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.]

As per the said provision, there is no prohibition to receive an unregistered document in evidence for collateral purpose.

duty and penalty, if any, payable shall be paid before according permission for being marked for collateral purpose. Unless the document is sufficiently stamped or stamp duty and penalty are paid, an unregistered document cannot be admitted even for collateral purpose. In the case on hand, even if the originals of the two documents in question are assumed to be in existence and permission can be granted for producing the copies of the documents as secondary evidence for collateral purpose, yet, the admitted fact is that the originals of the said two documents are unstamped and unregistered.

When the documents are copies of original documents and are being sought to be produced as secondary evidence and when the originals are not sufficiently stamped, the question is as to whether such copies of documents, the originals of which are not sufficiently stamped, can be admitted for collateral purpose. In the decision in the case of Avinash Kumar Chauhan's case (2nd supra), the Supreme Court referred to the following ratio in the decision in the case of T. Bhaskar Rao vs. T. Gabriel and other4.

" 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 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."

Thus, from the above legal position, it is clear that a document cannot be received in evidence even for collateral purpose unless it is duly stamped and duty and penalty are paid, as required under law. 16.

Further, there is one more question to be considered. The said question whether or not stamp duty can be collected on a copy of a document is no longer res integra. In Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao5, the Supreme Court emphatically held that stamp duty cannot be collected on a 4 AIR 1981 AP 175 5 AIR 1971 SC 1070

copy of document, if the original was not subjected to stamp duty at all. The ratio in this cited decision is as follows:

"The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.

Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instalment for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The Legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding." In the said decision, the Supreme Court quoted and approved the judgment of the Privy Council in Raja of Bobbili v. Inuganti China Sitaramaswami Garu6. The same principle was followed by this Court in Akkam Laxmi v. Thosha Bhoomaiah7. Thus, the law is well settled that stamp duty and penalty, if any, payable are collectable only on the original document, i.e., primary evidence but not on a copy of the document, i.e., secondary evidence. 17.

On the above analysis of the provisions of law and the decisions, the following legal aspects are clear:

Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The said provision of law which also deals with acting upon an instrument shuts out any secondary evidence of such instrument, when the original admittedly chargeable with duty was not stamped or insufficiently stamped. Secondary evidence by way of either oral 6 (1900) ILR 23 Madras 49 7 2002 (4) ALD 808

evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority the duty to receive nothing in evidence except the instrument itself. A copy of document is not an instrument for the purpose of Stamp Act. Section 35 deals with only original instruments and not copies. Thus, stamp duty is collectible only on the original and secondary evidence of the original document, when the original, which is chargeable with duty is not stamped or insufficiently stamped, cannot be received in evidence. A document tendered for being marked for collateral purpose should be duly stamped and should comply with the requirement of Indian Stamp Act; and, if the document tendered is a copy and when its original is not stamped, either the original document or its copy cannot be received in evidence even for collateral purpose.

18.

However, in the case on hand, the order of the Supreme Court, in the considered view of this Court, reflects that marking of the documents should not be interfered with by this Court during the course of trial, that is, at a stage when trial is in progress. The admissibility, registrability and reliability of the documents shall be considered independently as directed in the orders of the Supreme Court at an appropriate later stage, as permitting to mark documents stands on a different footing than examining the weight to be attached to the documentary evidence and as the issue of admissibility is to be considered at an appropriate later stage as per the orders of the Supreme Court in the Civil Appeals. In that view of the matter, this Court is of the considered view that the order of the trial Court can be partly set aside and be partly sustained by reiterating that as directed in the order of the Supreme Court, the question of admissibility, reliability and registrability of exhibits A84 and A85 shall be considered by the trial Court while adjudicating the issues that

are settled in the suit for determination by keeping in view the settled legal position in the decisions, which are referred to in the order of this Court. 19.

In the result, the Civil Revision Petition is disposed of accordingly and the impugned order is partly set aside subject to the observation that along with the other aspects the admissibility of exhibits A84 and A85 for the purpose of secondary evidence and collateral purpose shall also be decided at an appropriate later stage as directed in the orders of the Supreme Court, however, keeping in view the settled legal positions in the decisions, which are referred to supra in this order.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed. _____________________ M. SEETHARAMA MURTI, J 04th December, 2017 RAR