S.Sundararajan v. Smt. C.Kowsalya

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.06.2017

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.1810 of 2017 & C.M.P.No.8634 of 2017 S.Sundarajan .. Petitioner Vs.

1. C.Kowsalya

2. P.Bharathi

3. Mohanasundari

4. Krishnakumari

5. Udayakumari

6. Chandrakumari ..

Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 24.02.2017 passed in OS. No.3623 of 2013 on the file of the III Additional Judge, City Civil Court, Chennai.

For Petitioner : Mr.R.Natarajan

ORDER

This Civil Revision Petition has been filed to set aside the order dated 24.02.2017 passed in OS. No.3623 of 2013 on the file

of the III Additional Judge, City Civil Court, Chennai.

2. The petitioner is the 1st defendant and the 1st respondent is the plaintiff and respondents 2 to 6 are the defendants 2 to 6 in O.S.No.3623 of 2013. The 1st respondent filed the suit for partition claiming 1/7th share and consequential injunction.

3. The petitioner and other respondents 2 to 6 filed written statement and are contesting the suit.

4. The 1st respondent has let in evidence as P.W.1. During the cross examination, the learned counsel for the petitioner wanted to mark the document, dated 02.05.1989 through P.W.1. The learned counsel for the 1st respondent objected to mark the said document on the ground that it is unregistered partition deed and the same cannot be marked even for collateral purpose. The learned counsel appearing for the petitioner submitted that it is not a partition deed and it is only a record of oral partition already effected between the family members.

5. The learned Judge, considering the averments made in

the affidavit, and also considering the recitals in the said document, came to be conclusion that it is not a record of the prior transaction and it is only oral partition effected in respect of the immovable property that have been entered into between the family members. In view of the same, the document has to be stamped and compulsorily registerable. For the above reason, the learned Judge rejected the marking of the document and held that though the document dated 02.05.1989 which is sought to be marked through P.W.1, the right, title and interest is created in favour of the parties in the suit properties and it is to be properly stamped and compulsorily registered under Section 17(1)(b) of the Registration Act and further held that if the said document is not registered, it is inadmissible in evidence under Section 49 of the Registration Act, even for collateral purpose.

6. Against the order dated 24.02.2017 passed in O.S.No.3623 of 2013, the present civil revision petition is filed by the petitioner.

7. The learned counsel appearing for the petitioner submitted on the merits of the case and contended that the document dated 02.05.1989 is a record of the past transaction and it is not a

partition deed and it need not be stamped and registered. The learned Judge is not correct in holding that the said document created interest of parties in respect of the immovable property and has to be stamped and compulsorily registered.

8. The learned counsel for the petitioner relied on the decision of the Supreme Court reported in [(2001) 3 SCC 1] in the case of Bipin Shantilal Panchal v. State of Gujarat and Another, wherein paragraph 14 reads as follows:

"14. When so recast, the practice which can be a better substitute is this: whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item or oral evidence the trial court can make a note of such objection and mark the objected document tentatively as on exhibit in the case (on record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before

proceeding further. For all other objections the procedure suggested above can be followed)."

9. Heard the learned counsel for the petitioner and perused the materials available on record.

10. The contention of the learned counsel for the petitioner that the said document dated 02.05.1989 is not a partition deed, but it is only a past transaction. In the impugned order, the learned Judge extracted the relevant portions of the said document. On a reading of the said extract from the impugned order, it is clear that it is a document evidencing the partition effected on the same date and it had created right title and interest on the immovable property between the parties. A reading of the said recital shows that it is not a record of the past transaction.

11. A Division Bench of this Court in the judgment reported in [2001 (1) MLJ 1] = [2000 (2) TLNJ 315] in the case of A.C.Lakshmipathi and another v. A.M. Chakrapani Reddiar and others which is followed by the learned Judge of this Court in

order dated 14.03.2011 in CRP No.4172 of 2010, wherein it has been held that unstamped and unregistered documents which are to be stamped and registered cannot be admitted in evidence even for collateral purpose. The said Judgment and order are squarely applicable to the facts of the present case. The judgment relied on by the counsel for the petitioner is not applicable to the facts of the present case.

12. The learned Judge has properly considered under Section 17 of the Registration Act and recital in the document 02.05.1989 is sought to be marked through P.W.1, by the petitioner and the learned Judge has rightly held that said document has to be stamped and it is compulsorily registrable and hence inadmissible in evidence. In the circumstances, there is no illegality or irregularity warranting interference by this Court in the order of the learned trial Judge, dated 24.02.2017.

13. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 08.06.2017

Index: Yes/No speaking order/non speaking order jv To The III Additional Judge, City Civil Court, Chennai.

V.M.VELUMANI,J.

jv C.R.P.(PD)No.1810 of 2017 & C.M.P.No.8634 of 2017 08.06.2017 http://www.judis.nic.in