Judgment:
ORDER
P.S. Narayana, J.
1. C.R.P. No. 168 of 2009 is filed by the petitioners-defendants No. 3 and 5 being aggrieved by an order made in I.A. No. 71 of 2008 in O.S. No. 222 of 2007 on the file of the II Additional Senior Civil Judge, Nandyal, under Article 227 of the Constitution of India.
2. C.R.P. No. 216 of 2009 is filed by the self same parties being aggrieved by an order made in I.A. No. 100 of 2008 in O.S. No. 222 of 2007 on the file of the II Additional Senior Civil Judge, Nandyal.
3. C.R.P. No. 293 of 2009 is filed by the self same parties against the order made in I.A. No. 78 of 2008 in O.S. No. 222 of 2007 on the file of the II Additional Senior Civil Judge, Nandyal. The said applications were disposed of by the learned II Additional Senior Civil Judge, Nandyal by a common order dated 2-1-2009.
4. This Court ordered notice before admission in these C.R.Ps on 9-2-2009. In C.R.P. No. 168 of 2009, interim stay was granted for a limited period, which was subsequently extended for a further limited period.
5. The contesting, respondents are represented by Sri Vinod Associates, now represented by Sri Vinod Reddy. Hence all these C.R.Ps are being disposed of by this common order.
6. Sri Balasubramanyam, learned Counsel representing the revision petitioners would maintain that the leaned Additional Senior Civil Judge, Nandyal totally erred in dismissing the applications to send the document to an expert under Section 45 of the Indian Evidence Act for comparison of the signatures and another application to send the document dated 12-4-2006 to Revenue Divisional Officer for impounding and for collection of Stamp Duty and Penalty. Instead of sending the document in question to an expert for comparison and also for the purpose of impounding and further allowing an application filed by the opposite partyplaintiff to reject the said document on certain grounds, also cannot be sustained. Learned Counsel also had taken this Court through the contents of the document in question and would maintain that though the document is styled as Relinquishment Deed, as such, the last portion of the recitals would go to show that in furtherance thereof yet another document to be executed and hence, to hold that the same is inadmissible in evidence on the ground of want of registration cannot be sustained. The Counsel also would maintain that this is a matter to be decided at the stage of final disposal of the suit, and it may not be just and proper to prejudge the said issue holding that the said document is inadmissible at this stage and refusing to send the document to an hand writing expert also cannot be sustained and hence in the peculiar facts and circumstances, the common order under challenge is liable to be set aside and appropriate orders to be made. Learned Counsel also relied upon certain decisions to substantiate his submissions.
7. On the contrary Sri Vinod Reddy representing Vinod Associates the Counsel representing the contesting respondents would maintain that this is a suit for partition and the main contest is between the sister, the brother and the wife of the said brother. The Counsel would also maintain that the defence is that by virtue of relinquishment deed the sister had relinquished her share in the family properties. The learned Counsel also would maintain that the recitals of the document in question being clear and categorical, no further question is left over to be decided relating to the validity or admissibility of the document and hence to postpone the question to be decided at the time of final disposal of the suit would be a futile exercise. Hence learned Judge arrived at a correct conclusion that there is no need of sending this document to an expert. Learned Counsel also further had taken this Court through the contents of the document and would maintain that in the light of the recitals of the document in question the said document to be construed as relinquishment deed. In the commencement of the document, it is recited as Relinquishment Deed and the same is affirmed even in the last portion. It is specifically recited in the document that all the rights are totally relinquished and inasmuch as such rights relinquished are in relation to the immovable property worth more than Rs. 100/-, the same requires registration under Section 17 of the Indian Registration Act and it is compulsorily a registerable document and hence even if the last recital that a further document to be executed as and when required to be considered it would not alter the situation since the nature of the document is not in any way changed or altered and hence, the document to be taken as regular relinquishment deed and the same being unregistered and insufficiently stamped document, the learned Judge after recording the reasons came to the correct conclusion in rejecting the document as inadmissible and hence, the order under challenge, a common order, does not suffer from any illegality whatsoever. The learned Counsel would also maintain that when the very document itself is inadmissible in evidence, to send such document to a hand writing expert would be a futile exercise. Hence, viewed from any angle since the impugned order does not suffer from any illegality whatsoever, these C.R.Ps. are to be dismissed. Learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.
8. Heard the Counsel on record and perused the document in controversy between the parties and also the records available before this Court.
9. I.A. No. 71 of 2008 is filed by the petitioners/defendants 3 and 5 for sending the document dated 12-4-2006 to the Director of Forensic Science, Hyderabad for comparison of the disputed signatures of Respondent No. 1/Plaintiff on the document with an admitted signature of Respondent No. 1/plaintiff. The 3rd defendant filed an affidavit in support of the said application stating that the respondent No. 1/plaintiff denied her signatures in the document dated 12-4-2006 when confronted the document in her cross-examination. The said document is very material to prove the case of the petitioners. Hence, it would be just and necessary to send the said document to hand writing expert for the purpose of examination of the disputed signatures of the respondent No. 1/Plaintiff with admitted signatures.
10. The said application was resisted on the ground that the alleged document is unregistered relinquishment deed and the same is not admissible in evidence on the ground of non-registration and also on the ground that the same is insufficiently stamped. Since the document itself is not admissible in evidence, the question of sending such document to hand writing expert for the purpose of comparison of signatures would not arise.
11. I.A. No. 100 of 2008 was filed by the petitioners/defendants 3 and 5 under Section 151 of Code of Civil Procedure (hereinafter referred to as 'The Code' for the purpose of convenience) for sending the document, dated 12-4-2006 to the Revenue Divisional Officer, Nandyal for the purpose of levying and collection of deficit stamp duty and penalty on the ground that the document is insufficiently stamped.
12. The said application was resisted on the ground that even if the deficit stamp duty be cured by payment of stamp duty and penalty if any document cannot be a source of title by virtue of Section 17 r/w Section 49 of the Indian Registration Act and since the document is inadmissible in evidence the application is to be dismissed.
13. I.A. No. 78 of 2008 was filed by the plaintiff under Order 13 Rules 3 and 6 of the Code praying for rejection of the relinquishment deed dated 12-4-2006 as the same is inadmissible in evidence for want of registration and also the same being liable for stamp duty and penalty.
14. The learned II Additional Senior Civil Judge, Nandyal formulated the following points for determination:
1. Whether the document dated 12-04-2006 sought to be introduced in evidence by the defendants 3 and 5 is admissible in evidence and the same can be marked as exhibit on behalf of the defendants 3 and 5 through the evidence of the defendant No. 3.
2. Whether the document dated 12-04-2006 filed by the defendants 3 and 5 can be sent to hand writing expert for comparison of the disputed signatures of the plaintiff on the document with that of admitted signatures of the plaintiff.
3. Whether the document dated can be sent to the Revenue Divisional Officer, Nandyal for levying and for collection of deficit stamp duty and penalty on the document.
4. To what relief.
15.The learned Judge after referring to the recitals of the document jn question and also further referring to several decisions after recording elaborate reasons allowed I.A. No. 78 of 2008 and dismissed I.A. No. 100 of 2008 and I.A. No. 71 of 2008. Aggrieved by the same the present C.R.Ps had been preferred.
16.The recitals of the document in controversy are as hereunder:
[Telugu Matter. (Omitted)]
17. It is no doubt true that there is a recital relating to the registration of the document on demand made for the registration. Elaborate submissions had been made on the strength of this recital to the effect that since a further future document a regular registered document is contemplated, it cannot be said that this would fall under relinquishment deed and hence it cannot be held to be inadmissible in evidence.
18. It may be true that the mere nomenclature given to a document may not be always decisive. It may be that the recitals of the document may have to be gone into carefully apart from the nomenclature given to that document.
19. On a careful reading of the said document since the relinquishment of all rights in immovable properties had been specified there cannot be any doubt whatsoever that the document not only suffers from the deficiency of stamp duty, it also further suffers from the ill of inadmissibility being an unregistered document.
20. Surajmal v. Motiram and Ors. : 2002 (6) ALT 552 : 2002 (4) ALD 720, the learned Judge at Para 32 observed:
In the case on hand, according to the 1st defendant, the plaintiff did not release his share of property in favor of all other coparceners. It is the specific plea of the 1st defendant that the plaintiff released the share only to him. There was a consideration to the transaction and the alleged relinquishment was only after taking consideration towards value of the property in favour of the 1st defendant. In view of the circumstances of this case, I hold that the transaction alleged by the 1st defendant amounts to conveyance. It was not done during the course of partition of the joint family properties, but it was subsequent to the said partition. The Judgment in Venku Bai (supra) is in respect of the release of the share of one of the coparceners in favour of other coparceners. On the strength of Subba Nadu's case I hold that in the absence of a registered document of the alleged relinquishment, the findings of the trial Court and the 1st appellate Court cannot be supported and the plaintiff should succeed.
21. In T. Arthi v. K. Anand Reddy and Ors. : 2006 (5) ALT 42 : 2006 (5) ALD 1, it was held that unregistered relinquishment deed, inadmissible in evidence, can be relied upon, for collateral purpose.
22. In Sanjeeva Reddi v. Johan Putra Reddi : 1972 (1) ALT 232 : AIR 1972 A.P. 373, it was held by the learned Judge that no part of a document be it a single sentence, a word or a signature which is chargable with duty can be received in evidence even if that document is sought to be admitted only for a collateral purpose. The learned Judge also further observed that there is no prohibition under Section 49 of the Indian Registration Act, to receive such a document which requires registration to be used for a collateral purpose. However, under Section 35 of the Indian Stamp Act there is an absolute prohibition unless the requirements of the proviso to that Section are fulfilled.
23. In Shaik Khadaru Masthan v. Sayyed Fathimun Bee : 2007 (6) ALT 220 : 2007 (6) ALD 482, the learned Judge observed at Para 10 as under:
The document in question has been placed on record along with the material papers. It is an unregistered and unstamped document. The recitals of the document are explicit that the mother of the plaintiff gifted the property under the document. When once the gift of immovable property worth more than Rs. 100/- is evidenced by a document it attracts Section 17 of the Registration Act. The same issue fell for consideration before a Single Judge of this Court in Ranga Reddy v. Sadhu Padamma and Ors. (supra), decision, wherein it has been held that an unregistered gift deed effecting immoveable property cannot be admitted in evidence even for collateral purpose. The cited decision squarely applies to the facts of the case on hand.
24. In Dina Ji and Ors. v. Daddi and Ors. : AIR 1990 SC 1153, while dealing with Adoption of son by widow, Deed executed, Deed also containing clause for relinquishment of all rights in favour of son, Deed not registered, Relinquishment clause could not be admitted in evidence, Alienation of immovable property by widow was held to be legal.
25. In A.C. Lakshmipathy and Anr. v. A.M. Chakrapani Reddiar and Ors. AIR 2001 Mad 135, it was held that Family arrangement, reduced to writing for using it as proof of arrangement in future, requires registration and unstamped or unregistered arrangement cannot be looked into for very purpose in view of Section 35 of the Indian Stamp Act.
26. In Javer Chand and Ors. v. Pukhraj Surana : AIR 1961 SC 1655 (V 48 C 312), under Sections 35 and 36 of the Indian Stamp Act, it was held that unstamped document marked as exhibit in the case and used by parties in examination and cross-examination of witnesses, such order admitting document in evidence is not liable to be reviewed or revised.
27. In J.J. Lal Pvt. and Ors. v. M.R. Murali and Anr. : AIR 2002 SC 1061 : 2002 (2) ALT 24.2 (DNSC), it was held by the Apex Court that documents referable to some other litigation between the parties cannot be taken into consideration unless tendered in evidence and brought on record consistently as per the procedure law governing trial of Civil Cases.
28. No doubt strong reliance was placed on the decision of this Court
In Vajrala Ramesh and Anr. v. Vajrala Narayana Setty and Anr. : 2005 (3) ALT 1 : 2005 (2) ALD 597, wherein the learned Judge observed in Paras 19, 20, 30 and 31 as hereunder:
It is to be further noted that it may happen, sometimes, basing on the oral evidence of the parties also, the nature of the document would have to be decided inasmuch as the intention of the parties in executing the document and the language employed in it, the Court may have to arrive at a conclusion. Just by mere reading of a document and the contents of the document, it may not be possible for the Courts to arrive at a right conclusion always. Therefore, it is always desirable to receive such a document as and when an objection had been taken, decide the same after the trial.
In the instant case, it is to be further noted that it is the document on which the suit was instituted. In other words, if this document was not available to the plaintiffs, there could not have been either any suit of the present nature or the nature of the suit would have been something else. Therefore, when this document is the very foundation for institution of the suit, such a document has to be more carefully dealt with before arriving at a conclusion as to whether the same is admissible or not.
From the above, it could be seen that the defect of the document, either unstamped or insufficiently stamped, can be cured either by the Court by impounding and levying the duty along with penalty of its own or if the party to the suit require the document to be sent to an authorized officer under the Stamp Act i.e., the Collector for levying the duty along with penalty to send the document to such officer. Therefore, this defect can otherwise be called as 'curable defect'. Consequently the admission of such a defective document under the Stamp Act depends much upon the steps taken by the Court or the person who tries to introduce the document in order to mark the same in the evidence.
To put it in a different way, a document, which suffers from the infirmity under the Stamp Act, does not remain as inadmissible document forever and the same is subject to further steps initiated by the Court or taken by the person who tries to introduce the said document in evidence.
29. The recitals of the document in controversy already had been referred to supra. Since, this Court is of the opinion that the document in question is an unregistered relinquishment deed, the same is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act. It is needless to say that the document is inadmissible in evidence for want of registration inasmuch as the purpose for which the document is being relied upon is the principle purpose not for any collateral purpose. The question of sending such document to the Revenue Divisional Officer, Nandyal for levying of Stamp duty and penalty also may not arise. The question of sending such document to the Director of Forensic Science Laboratory, Hyderabad for the purpose of comparison also would not arise.
30. However, plaintiff appears to have filed an application I.A. No. 78 of 2008 under Order 13 Rules 3 and 6 of the Code praying for rejection of relinquishment deed dated 12-02-2006. The said application was allowed.
31. Order 13 of the Code deals with production, impounding and return of documents. Under Order 13 Rule 3 of the Code dealing with rejection of irrelevant and inadmissible documents specifies that the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible recording the grounds of such rejection. It is not only the power of the Court but it is the duty of the Court to reject the document if it is satisfied that the same is irrelevant or inadmissible in evidence. Order 13 Rule 6 of the Code dealing with endorsement on document rejected as inadmissible in evidence, as hereunder:
Where a document relied on as evidence by either party is considered by the court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in Clauses (a), (b) and (c) of Rule 4, Sub-rule (1) together with a state of its having been rejected, and endorsement shall be signed or initialed by the Judge.
32.In Gopal Das and Anr. v. Sri Thakurji and Ors. : AIR (30) 1943 Privy Council 83, it was held that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until this case comes before a Court of Appeal and then complain for the first time of the mode of proof.
33. In Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. : AIR 1971 SC 1865, it was held that mere marking of a document as an exhibit does not dispense with its proof.
34. In Nori Srirama Sastri v. Nori Lakshmidevamma and Ors. AIR 1957 A.P. 60, it was held by the learned Judge of this Court that it is the duty of a Judge to decide the question as to the admissibility of the documents objected to by a party when the objection is raised. He ought not to mark them tentatively and reserve the question of the admissibility for arguments at the final stage. If the Judge tentatively marks the documents, the High Court will set aside the order in revision.
35. In the light of the clear language of Order 13 Rules 3 and 6 of the Code referred to supra, the order made by the learned Judge allowing the application I.A. No. 78 of 2008 also cannot be found fault.
36. Hence, viewed from any angle this Court is thoroughly satisfied that the common order under challenge in these C.R.Ps. i.e., I.A. No. 71 of 2008, I.A. No. 100 of 2008 and I.A. No. 78 of 2008 in O.S. No. 222 of 2007 aforesaid does not suffer from any legal infirmity warranting interference of this Court under Article 227 of the Constitution of India.
37. Hence these C.R.Ps shall stand dismissed at the stage of admission. No order as to costs.