@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe petitioners/defendants have preferred the instant Civil Revision Petition, as against the order, dated 08.12.2011, in
I.A. No. 122 of 2011 in O.S. No. 305 of 1978, passed by the Learned Additional District Munsif, Tindivanam. The Learned Additional District
Munsif, Tindivanam, while passing the order in I.A. No. 122 of 2011 in O.S. No. 305 of 1978, dated 08.12.2011, has categorically inter alia
observed that ""on behalf of the plaintiff, Ex. No. 8 sought to be marked is a release deed and the said document is to be registered as per law and
as per Sections 17 and 49 of the Registration Act 1908, it cannot be marked and also received in evidence as per the contention advanced on
behalf of the petitioners"" and resultantly has come to the conclusion that through the settlement deed, dated 18.12.1962, no right has been
relinquished in respect of immovable property and also that the said document is not marked for the purpose of primary reason and only for
incidental/ancillary reason, the said document can be marked and resultantly, dismissed the application without costs.
2. Challenging the propriety on legality of the order passed by the trial Court in I.A. No. 122 of 2011 in O.S. No. 305 of 1978, dated
08.12.2011, the Learned counsel for the petitioners/defendants urges before this Court that the trial Court has failed to take note that the pivotal
question whether the document in question is admissible in evidence in view of the specific endorsement made by the Learned counsel during the
trial in the first round to the effect that he is not relying the document.
3. It is the plea of the petitioners/defendants that the unregistered document filed by the Respondents/plaintiffs ought not to have been permitted to
be marked in the main case.
4. Advancing his arguments, the Learned counsel for the petitioners/defendants projects a legal plea that the document sought to be marked is an
unregistered release deed which requires registration as per Section 17 of the Registration Act 1908 and unless the said document is so registered,
it cannot be received in evidence ipso facto.
5. That apart, the Learned counsel for the petitioners/defendants take a stand that a collateral transaction must be a transaction, not itself requires
to be effected by a registered document viz., a transaction creating any right, title or interest in the immovable property of the value of Rs. 100/-
and above.
6. Lastly, the Learned counsel for the petitioners submits that if a document is in admissible in evidence for want of registration, none of its terms
can be admitted in evidence by a Court of Law and that to use a document for the purpose of proving an important clause could not be termed as
using it as a collateral purpose.
7. Per contra, the Learned counsel for the respondents/plaintiffs supported the order of the trial Court in dismissing the I.A. No. 122 of 2011 filed
by the revision petitioners/defendants and further contended that the unregistered release deed can be marked for ancillary purpose and in this
regard, the view taken by the trial Court cannot be construed to be a case of impropriety.
8. To lend support to the contention that "" a collateral transaction must be a transaction which is not itself a transaction which requires to be
effected by a registered document and a clause or term in unregistered document which does not constitute a collateral transaction cannot be
admitted in evidence, the Learned counsel for the petitioners/defendants cites the decision of this Court in Kaliya Perumal Vs. Dhandapani, , at
page 690 and 691, wherein it is held as under:-
It is not as if the party who marks an unstamped document can go scot free without payment of the stamp duty due under the instrument forever.
As per Section 61 of the Indian Stamp Act 1899, if the Appellate Court is of the opinion that such instrument should not have been admitted in
evidence, without payment of duty and penalty, the Appellate Court can determine the amount of duty chargeable and impound the instrument and
record a declaration to that effect and send the instrument to the Collector for collecting stamp duty on the instrument.
9. A perusal of the contents of the affidavit in I.A. No. 122 of 2011 in O.S. No. 305 of 1978 on the file of the trial Court (filed by the revision
petitioners/defendants) would spotlight that the main case has been posted for cross examination of PW-1 on 25.01.2011 and the document Ex.
A-8 viz., release deed sought to be marked on the side of the respondents/defendants is an unregistered document and since that document has
not been registered as per Sections 17 and 49 of the Registration Act since the value of the property mentioned in the document is more than Rs.
100/-, the same cannot be marked as per law. As such, the said release deed may be rejected and necessary orders may be passed not to permit
the said document to be marked in the main case as Ex. A-8 on the side of the respondents/plaintiffs.
10. In the counter filed by the respondents/plaintiffs, it is patently and latently stated that the release deed Ex. A-8 (sought to be marked before the
trial Court) since it is an unregistered document has been sent to Sub Collector, Tindivanam, bearing Document No. 651/2000, dated 16.10.2000
from Court for observing and payment of necessary stamp duty and as per orders of Court, the necessary stamp duty has been paid by the
Respondents/plaintiffs and the said document has been sent to Court later. Therefore, the petitioners/Defendants cannot object to marking of the
said Release deed as per the Registration Act, 1908.
11. Per contra, the I.A. No. 122 of 2011 filed by the petitioners/defendants is not maintainable in law. If proper stamp duty is paid as per the
Indian Stamp Act and as per the Registration Act 1908, the said release deed can be received by a Court of Law.
12. It is to be borne in mind that where the recitals in the document clearly show that a vendor has completely released/relinquished his right then
from the date of the sale, a person who possess the land as a absolute owner and if in writing either in the form of a deed or a letter or a receipt in
order to be operative in law, the same must be registered as per Section 17 of the Registration Act, when the amount of the claim to interest in
immovable property which is extinguished is of the value of Rs. 100/- or more as per decision in Imam Ali Vs. Baij Nath Ram Sahu, . A letter
purporting to extinguish a contingent interest to and in immovable property or in other words operating as release of a mortgage security must be
registered as per decision in Rangayya Appa Rau Vs. Kameswara Rau and Another,
13. In the agreement relinquishing the rights of the parties on payment of compensation followed by delivery of possession, the same can be made
only by a registered instrument. It is a settled law that the document which purports to be deed of relinquishment of tenancy right required
compulsory registration under the Registration Act as per decision in Saran Dass and Others Vs. Smt. Situ and Others, , 1 at special page 2. u/s
17 of the Registration Act, the right in the immovable property can only be relinquished or transferred by the original owner by a registered
document. If there is no registered document for a property worth more than Rs. 100/-, even if a person admits as regards his transfer of right in
favour of another, the same is not valid in law. Therefore, it does not create any title, interest or right in the immovable property in favour of another
person, as opined by this Court.
14. It is to be noted that a Court of Law has an independent liability to decide the question of stamp duty, even if the parties fail to approach the
point as per decision Smt. Gita Devi Shah and others Vs. Smt. Chandra Moni and Karnani and others, . When an issue comes before Court as to
the admissibility of a document, whether it requires compulsory registration or payment of stamp duty, it is for the concerned Court to render a
decision in this regard. The Indian Stamp Act 1915 and the Registration Act 1908 and the Transfer of Property Act are to be complied with,
where the transaction intended to operate as a transfer. These acts cannot be avoided or evaded by the parties concerned.
15. Coming to the ingredients to Section 49 of the Registration Act, it is to be pointed out that last part of Section 49 of the Registration Act
specifically mentions that ''as evidence of any collateral transaction not required to be effected by registered instrument"". Section 49 of the Act
does not say that the document cannot be received in evidence at all. All that it speaks of is that the document cannot be received as evidence of
any transaction affecting such property. If under the Evidence Act, the document is receivable in evidence for a collateral purpose, Section 49 of
the Registration Act 1908 is no bar. Ordinarily, a document required to be registered is not admissible into evidence as per Section 49 of the
Registration Act. Such an unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section
49 of the Registration Act as per decision of the Hon''ble Supreme Court in K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., .
16. It is well accepted principle in law that a deed, which is compulsory registrable, as per Section 17 of the Registration Act, cannot be looked
into. If it is not so registered, to create, declare, assign, limit or extinguish any right in immovable property. That is the essence of Section 49 of the
Indian Registration Act 1908, in the considered opinion of this Court.
17. The disputed document, though inadmissible in evidence for the purpose of proving the terms and conditions of the document, can be admitted
in evidence for collateral purpose of proving the factum of partition and nature of possession of the parties as per decision Kaheeda Moin and
Others Vs. Md. Iqbal Ali and Others, .
18. An objection in regard to the mode of proof is irregular must be taken initially, before ever the document is admitted. When a document is
produced before a Court of Law, a person against whom it is sought to be brought on record is entitled in law to question it on the ground of its
inadmissibility. If after the admission of a particular document it is later on found to be an irrelevant or in admissible one in law, it may be even
rejected at any stage of the suit as per Order 13, Rule 3 of Civil Procedure Code. It is the duty of the trial Court to eschew all irrelevant or
inadmissible evidence even if there is no objection taken on the either side.
19. At this stage, this Court worth recalls the decision in Prabhu Dayal Vs. Suwa Lal and Another, , whereby and where under, it is held that "" the
provision Order 13 Rules 1 and 3 of CPC does not debar a Court from reopening the question of admissibility of the document already exhibited
and further that the mode of proof could not be questioned"".
20. It is always open to the trial Court to come to a conclusion that a document already admitted is legally inadmissible one because of the fact that
there is an embargo in law to admit/mark the same in a given proceeding like suit, etc.
21. In Kissen v. Ram 12 WR 13, it is laid down that ""if after admission for a document which is subsequently found to be irrelevant or otherwise
inadmissibility, it may be rejected at any time under the rule"".
22. When a controversy/objection/dispute is raised as to the admissibility of a stamped document, the party challenging the admissibility of the said
document should be vigilant in not permitting the said document to be marked or admitted in evidence by the Court. As per Section 35 of the
Indian Stamp Act relating to instrument not duly stamped in admissible in evidence, etc., a Court of Law has got an independent liability to decide
the question of stamp duty, even if the parties failed to take up the point.
23. In Vasudevan Mullan v. Krishna Ramnath, ILR (1953) Trav-Co. 739 : 1953 Ker LT 533, it is held that "" the jurisdiction of the Court to
decide the question of stamp duty u/s 35 is only incidental to the reception of the document in evidence"". Whether a document is a release
deed/family arrangement or memorandum of partition or whether the same requires any registration are all to be looked into by a Court of Law
and it is the duty of the trial Court to analyse and scrutinise its legal implications and the legal consequences which follow. In this connection, this
Court points out that marking of a document is one aspect, proving the contents of the document is a different one.
24. A Court of Law while adjudicating on stamp duty is empowered to levy penalty of 10 times of deficit stamp duty. If the petitioner was unwilling
to remit the amount, the Court is to forward the original document to the Collector for the purpose of adjudicating on the question of deficiency of
stamp duty. The Collector, after taking into account all factors, shall decide as to what should be the proper amount of penalty to be levied as per
decision of Hon''ble Supreme Court in Chilakuri Gangulappa Vs. Revenue Divisional Officer, Madanpalle and Another, .
25. Also, this Court very pertinently points out the decision of this Court in Chellammal Vs. Meenakshi, , wherein paragraph No. 6, it is stated as
under:-
6. It is well settled in law that when a document is tendered in evidence by either party and objection is raised against the same on the ground that
the document is not duly stamped u/s 35 of the Indian Stamp Act or for want of registration as contemplated u/s 17 read with Section 49 of the
Registration Act, 1908, it is obligatory on the part of the Court to apply its mind to the objections raised and to decide the objection in accordance
with law. In other words, no document could be admitted on its face value irrespective of the fact whether it is duly stamped or otherwise; nor it
could be rejected as inadmissible for the same reason or otherwise for want of registration automatically.
26. In the instant case on hand, the stand of the respondents/plaintiffs as seen in the counter to I.A. No. 122 of 2011 in O.S. No. 305 of 1978
shows that the unregistered release deed in question has been sent to the Sub Collector, Tindivanam and as per orders of Court, the said
document has been sent to the Sub Collector for ascertainment of necessary stamp duty being paid and according to the Respondents/plaintiffs,
they have paid the stamp duty and later on the said document has been transmitted to the Court. In effect, the respondents/plaintiffs categorically
contends that the petitioners/defendants cannot raise any objection as to either marking of the said release deed or for reception of the said
document by the trial Court. It cannot be lost sight of that before the trial Court in the main suit in O.S. no. 305 of 1978, the proof affidavit of PW-
1 has been filed and documents have been filed along with the said affidavit. Therefore, it transpires that the trial of the main suit has commenced.
At that point of time, only an objection has been raised on behalf of the petitioners/defendants in regard to the marking of the release deed stating
the value of the sale is more than Rs. 100/-. Since the trial of the main case has commenced by way of filing of the proof affidavit on behalf of the
respondents/plaintiffs side, if a plea is permitted to be taken in regard to the marking of Ex. A-8 on behalf of the petitioners/defendants based on
admissibility and relevancy, then, as a logical corollary affect the normal progress of the trial permitting such a course to be adopted is not an
appreciable one, but sub-serve the ends of justice. Therefore, this Court is of the view that the trial Court can permit the Respondents/plaintiffs to
produce the said Release deed (sought to be marked as Ex. A-8) and whether the said document requires compulsory registration or not either
under the Registration Act 1908 or whether the said document can be received in evidence and mark as Exhibit or even after payment of
necessary stamp duty by the Respondents/plaintiffs, the same is admissible in law or not or whether any objection can be raised are all matters
which can be decided by the trial Court by means of concerned parties letting in oral and documentary evidence in this regard. Even at the initial
stage, the trial Court can receive the said Release deed in question (purported to be marked as Ex. A-8) subject to proof and relevancy and at the
time of the final decision of the suit, it is always open to it to come to the conclusion that Ex. A-8 Release deed is either valid on account of
payment of stamp duty or the same suffers from any defect in law for want of registration under the Registration Act. If the said document suffers
from any disability to be taken into account for the purpose of consideration always it is open to the trial Court to eschew the said document at the
relevant/appropriate point of time. The relevancy, admissibility and maintainability of objections to receive and mark the Release deed as Exhibit on
behalf of a certain party, can be decided by the trial Court at the time of disposal of the main suit. Postponing of the decision by the trial Court in
this regard cannot be considered to be an act of impropriety or patent illegality or even it cannot be construed as a case of substantial material
irregularity in the considered opinion of this Court. However, the view taken by the trial Court that the Release deed can be received in evidence
for collateral purpose in I.A. No. 122 of 2011 in O.S. No. 305 of 1978 is not per se correct and in the interest of justice, this Court sets aside the
order passed by the trial Court in I.A. No. 122 of 2011 in O.S. No. 305 of 1978, dated 08.12.2011. With these observations, this Court
disposes of the Civil Revision Petition, leaving the parties to bear their own costs. Also this Court directs the Learned Additional District Munsif,
Tindivanam to proceed with the conduct of the trial of the main suit in O.S. No. 305 of 1978 on its file and to dispose of the same by providing
enough or adequate opportunities to both parties by rendering its decision or finding and ruling as to the admissibility, relevancy of the release deed
in question or even the plea that the said document should not be marked because of lack of registration u/s 17 of the Registration Act, etc., and to
dispose of the main case, within a period of four months from the date of receipt of copy of this order. The parties are directed to render their
relentless co-operation and assistance in regard to the completion of the main suit in O.S. No. 305 of 1978 within the time fixed by this Court.
Resultantly, the Miscellaneous Petition is closed.
