P. Sankara Pandi thevar Vs. C. Arumugam and ors. - Court Judgment

Excerpt:
- ordera. ramamurthi, j.1. the petitioner who is the 3rd defendant in o.s.no. 266 of 1995 on the file of principal district munsif's court, ambasamudhram has preferred the revision aggrieved against the order passed in i.a.no. 755 of 1997, dated 10.11.1997.2. the case in brief is as follows the 1st respondent/plaintiff filed the suit o.s.no. 266 of 1995 against respondents 2 and 3 and also the petitioner for permanent injunction and other reliefs. the trial of the case commenced and the petitioner/3rd defendant was examined as d. w. 1 and ex.b-1 an unregistered lease deed was marked in the case. the 1st respondent/plaintiff objected to the marking of the document on the ground that it is not properly stamped and not registered. the 1st respondent filed i.a.no. 755 of 1997 for rejection of the document ex.b-1 already marked on the aforesaid ground. the 3rd defendant opposed the application, stating that only after hearing the objections of the parties, the documents was marked. ex.b-1 is only a sublease and does not require any registration. the document was marked in the evidence only after giving due and proper notice to the plaintiff, and, as such, the application filed by the 1st respondent/plaintiff has to be dismissed.3. the learned district munsif after hearing the parties, allowed the application and aggrieved against this the present revision is filed.4. the learned counsel for the petitioner/3rd defendant contended that the court below has committed an error in allowing the petition. the lower court ought to have considered that ex.b- ' 2 is only an assignment of the lease held by the deceased tenant. the landlord is only thiruvaduthurai adheenam and as the original lease deed is exempted from stamp duty, assignment of the lease is equally exempted. ex.b-1 neither requires registration nor payment of any stamp duty. even assuming that ex.b-1 is to be stamped, the court below ought to have deter-mined the exact stamp duty payable for the institution and should have called upon the petitioner to pay the deficit stamp duty, within the time stipulated by the order, and the failure to do so had vitiated the entire order. ex.b-1 is definitely admissible in evidence under section 49 of the registration act to prove the collateral purpose of the nature and character of possession of the suit property by the petitioner.5. heard the submissions of the learned counsel appearing on either side.6. the point for consideration is whether the order passed by the lower court is proper and correct7. point: it is admitted that ex.b-1 was marked in the case through d.w.1 in the case. the 1st respondent filed i.a.no. 755 of 1997 to reject ex.b-1 and thereupon, after hearing the parties, the lower court allowed the applications. the learned counsel for the petitioner contended that the order passed by the lower court is not proper and correct. ex.b-1, dated 24.4.1995 is an unregistered document, granting sub-lease of the property measuring about 32 cents of wet land in favour of one ramalakshmi animal, w/o sankerapandi thevar. this property is item no. 2 in the plaint schedule. the learned counsel for the petitioner contended that even prior to the marking, notice was given to the plaintiff and only after hearing the objections, the document was marked in the case. the learned counsel for the first respondent contended that the document ought not to have been marked in the case since it is not properly stamped and it is not registered. the petitioner would contend that ex.b-1 is only an assignment of the lease held by the deceased tenant and, as such, it can be marked in the case to prove the collateral purpose of the nature and character of possession. a reading of ex.b-1 also disclosed that the properly was given on sub lease on payment of rs. 1,300 by way of cash.8. the main objection put forward by the 1st respondent is that there is no period fixed in the document and it is a sub lease and, as such, unless the document is registered or stamp duty paid, it cannot be admitted in evidence and looked into for any purpose. it 1s clear from the order passed by the lower court itself that even before the marking the document, the objection raised by the 1st respondent had been considered and only thereafter, ex.b-1 was marked in the case. when this being so, it is not known why another application should be filed by the 1st respondent for rejection of ex.b-1 to invite a finding and thereafter pave the way for filing the revision on this ground. whatever objections available to the 1st respondent can be agitated at the time of arguments itself and the lower court could have considered the merits of the case considering the objections raised by the parties relating to ex.b-1. in my view, the filing of the application by the 1st respondent to reject ex.b-1 is absolutely unnecessary and it had only helped in protracting the litigation.9. the learned counsel for the petitioner relied on satish kumar v. zarif ahmed and ors. : [1997]2scr336 , wherein the apex court has observed that, 'lease deed executed from month to month or for 11 months, though reduced in writing and possession delivered thereunder to a tenant, not a compulsorily registrable instrument'. this decision is not applicable to the facts on hand since it is not the case of the parties that ex.b-1 was executed only for 11 months.10. the learned counsel for the petitioner also relied on kousalya ammal v. valliammal ammal and anr. (1998)1 l. w. 208, a decision of this court, wherein it is stated as follows:mere marking the document does not prove any of the recitals of the document itself. the truth of the' document had to be independently proved. it is always open to the respondent to contend that he did not execute the document at all and that even for a collateral purpose, it cannot be relied on.this decision is applicable to the case on hand. the facts in the case cited above also disclosed that revision was preferred against the order of the district munsif, refusing to admit the unregistered lease deed executed by the respondents in favour of the petitioner as a documentary evidence. even in the present case, the petitioner/3 rd defendant alone had marked ex.b-1 in the case. i am of the view that the document in question can certainly be looked into for collateral purpose viz., for the purpose of proving the character of possession. no prejudjce would be caused to the 1st respondent for marking the document. the order passed by the trial court and that too, after marking the document an ex.b-1 is not proper and correct and, as such, it is liable to be set aside.11. for the reasons stated above, the revision is allowed and the order passed in i.a.no. 755 of 1997 dated 10.11.1997 is set aside. it is, however, open to the 1st respondent to raise the objections relation to ex.b-1 at the time of arguments. consequently, c.m.p.nos.665 of 1998 and 13423 of 1998 are closed.

Judgment:
ORDER

A. Ramamurthi, J.

1. The petitioner who is the 3rd defendant in O.S.No. 266 of 1995 on the file of Principal District Munsif's Court, Ambasamudhram has preferred the revision aggrieved against the order passed in I.A.No. 755 of 1997, dated 10.11.1997.

2. The case in brief is as follows The 1st respondent/plaintiff filed the suit O.S.No. 266 of 1995 against respondents 2 and 3 and also the petitioner for permanent injunction and other reliefs. The trial of the case commenced and the petitioner/3rd defendant was examined as D. W. 1 and Ex.B-1 an unregistered lease deed was marked in the case. The 1st respondent/plaintiff objected to the marking of the document on the ground that it is not properly stamped and not registered. The 1st respondent filed I.A.No. 755 of 1997 for rejection of the document Ex.B-1 already marked on the aforesaid ground. The 3rd defendant opposed the application, stating that only after hearing the objections of the parties, the documents was marked. Ex.B-1 is only a sublease and does not require any registration. The document was marked in the evidence only after giving due and proper notice to the plaintiff, and, as such, the application filed by the 1st respondent/plaintiff has to be dismissed.

3. The learned District Munsif after hearing the parties, allowed the application and aggrieved against this the present revision is filed.

4. The learned Counsel for the petitioner/3rd defendant contended that the court below has committed an error in allowing the petition. The lower court ought to have considered that Ex.B- ' 2 is only an assignment of the lease held by the deceased tenant. The landlord is only Thiruvaduthurai Adheenam and as the original lease deed is exempted from stamp duty, assignment of the lease is equally exempted. Ex.B-1 neither requires registration nor payment of any stamp duty. Even assuming that Ex.B-1 is to be stamped, the court below ought to have deter-mined the exact stamp duty payable for the institution and should have called upon the petitioner to pay the deficit stamp duty, within the time stipulated by the order, and the failure to do so had vitiated the entire order. Ex.B-1 is definitely admissible in evidence under Section 49 of the Registration Act to prove the collateral purpose of the nature and character of possession of the suit property by the petitioner.

5. Heard the submissions of the learned Counsel appearing on either side.

6. The point for consideration is whether the order passed by the lower court is proper and correct

7. Point: It is admitted that Ex.B-1 was marked in the case through D.W.1 in the case. The 1st respondent filed I.A.No. 755 of 1997 to reject Ex.B-1 and thereupon, after hearing the parties, the lower court allowed the applications. The learned Counsel for the petitioner contended that the order passed by the lower court is not proper and correct. Ex.B-1, dated 24.4.1995 is an unregistered document, granting sub-lease of the property measuring about 32 cents of wet land in favour of one Ramalakshmi Animal, W/o Sankerapandi Thevar. This property is item No. 2 in the plaint schedule. The learned Counsel for the petitioner contended that even prior to the marking, notice was given to the plaintiff and only after hearing the objections, the document was marked in the case. The learned Counsel for the first respondent contended that the document ought not to have been marked in the case since it is not properly stamped and it is not registered. The petitioner would contend that Ex.B-1 is only an assignment of the lease held by the deceased tenant and, as such, it can be marked in the case to prove the collateral purpose of the nature and character of possession. A reading of Ex.B-1 also disclosed that the properly was given on sub lease on payment of Rs. 1,300 by way of cash.

8. The main objection put forward by the 1st respondent is that there is no period fixed in the document and it is a sub lease and, as such, unless the document is registered or stamp duty paid, it cannot be admitted in evidence and looked into for any purpose. It 1s clear from the order passed by the lower court itself that even before the marking the document, the objection raised by the 1st respondent had been considered and only thereafter, Ex.B-1 was marked in the case. When this being so, it is not known why another application should be filed by the 1st respondent for rejection of Ex.B-1 to invite a finding and thereafter pave the way for filing the revision on this ground. Whatever objections available to the 1st respondent can be agitated at the time of arguments itself and the lower court could have considered the merits of the case considering the objections raised by the parties relating to Ex.B-1. In my view, the filing of the application by the 1st respondent to reject Ex.B-1 is absolutely unnecessary and it had only helped in protracting the litigation.

9. The learned Counsel for the petitioner relied on Satish Kumar v. Zarif Ahmed and Ors. : [1997]2SCR336 , wherein the Apex Court has observed that, 'lease deed executed from month to month or for 11 months, though reduced in writing and possession delivered thereunder to a tenant, not a compulsorily registrable instrument'. This decision is not applicable to the facts on hand since it is not the case of the parties that Ex.B-1 was executed only for 11 months.

10. The learned Counsel for the petitioner also relied on Kousalya Ammal v. Valliammal Ammal and Anr. (1998)1 L. W. 208, a decision of this Court, wherein it is stated as follows:

Mere marking the document does not prove any of the recitals of the document itself. The truth of the' document had to be independently proved. It is always open to the respondent to contend that he did not execute the document at all and that even for a collateral purpose, it cannot be relied on.

This decision is applicable to the case on hand. The facts in the case cited above also disclosed that revision was preferred against the order of the District Munsif, refusing to admit the unregistered lease deed executed by the respondents in favour of the petitioner as a documentary evidence. Even in the present case, the petitioner/3 rd defendant alone had marked Ex.B-1 in the case. I am of the view that the document in question can certainly be looked into for collateral purpose viz., for the purpose of proving the character of possession. No prejudjce would be caused to the 1st respondent for marking the document. The order passed by the trial court and that too, after marking the document an Ex.B-1 is not proper and correct and, as such, it is liable to be set aside.

11. For the reasons stated above, the revision is allowed and the order passed in I.A.No. 755 of 1997 dated 10.11.1997 is set aside. It is, however, open to the 1st respondent to raise the objections relation to Ex.B-1 at the time of arguments. Consequently, C.M.P.Nos.665 of 1998 and 13423 of 1998 are closed.