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Rajamanickam & Three Others Petitioners v. Elangovan & Four Others S
Comprehensive Summary of the Opinion (Civil Revision concerning admissibility of 12.11.1953 partition deed)
Factual and Procedural Background
This revision arises from O.S. No. 598 of 1986 filed in the Additional District Munsifs Court, Tindivanam. The plaintiffs (the first plaintiff who later died and whose legal representatives are petitioners, and the second plaintiff) sued for declaration of title to A-schedule properties in favour of the plaintiffs and B-schedule properties in favour of the second plaintiff, and for a permanent injunction restraining defendants 1–4 from interfering with possession and enjoyment.
Relevant chronology and factual matrix as stated in the opinion: - Vaithyalinga Mudaliar (the fifth defendant in the suit) was alleged by petitioners to be the owner of A- and B-schedule properties. On 23.1.1984 an exchange deed was executed between Vaithyalinga and one Palani, by which A-schedule properties were to pass to Palani and Palani’s properties to Vaithyalinga. Palani then sold the A-schedule properties to the first plaintiff on 17.12.1985. Vaithyalinga sold the B-schedule properties to the second plaintiff on 10.12.1984. - The fourth defendant challenged these transactions, denying that the properties belonged to Vaithyalinga and asserting a different chain of title: that the original owner was Rajarathinam, his widow Thayyalnayagi was allotted the suit properties under a partition dated 12.11.1953 among Rajarathinam’s sons (Vaithyalinga, Ponniah and Palani), and that the properties were enjoyed by Pattammal (daughter of one of the heirs) and later settled in her favour on 10.12.1985.
Procedurally, during interlocutory proceedings (I.A. No. 1025 of 1986) in which the plaintiffs sought temporary injunction, the respondents produced an unstamped and unregistered partition deed dated 12.11.1953. The respondents asserted it could be admitted for collateral purposes. The District Munsif dismissed the injunction application and (as affirmed on appeal in the course of argument) did not give a clear finding on admissibility for collateral purposes. During the trial, when the respondents again sought to mark the same deed in evidence, the Court below ruled that because the document had been admitted under Order 13 Rule 4 CPC in the interlocutory proceedings, section 36 of the Indian Stamp Act precluded the petitioners from objecting to admissibility and allowed the document to be received for collateral purposes.
Legal Issues Presented
- Whether an unstamped and unregistered partition deed dated 12.11.1953 can be admitted in evidence for 'collateral purposes' where the document is central to proving a partition alleged in the written statement.
- Whether an earlier marking/admission of a document in interlocutory proceedings (I.A. No. 1025 of 1986) under Order 13 Rule 4 CPC precludes a party from raising objections to its admissibility at the trial stage.
- Whether section 36 of the Indian Stamp Act operates to prevent calling in question the admissibility of a document in later stages of the same suit when the earlier interlocutory order did not contain a considered finding on admissibility.
- Whether registration under the Registration Act (section 49) is required for a document that purports to effect a division (i.e., a partition), and the consequences under section 91 of the Evidence Act if the document is not registered.
Arguments of the Parties
Petitioners' Arguments
- The Court in I.A. No. 1025 of 1986 had not applied its mind to the admissibility of the partition deed; it merely noted it was argued to be admissible for collateral purposes. Therefore the earlier proceeding could not give rise to a bar under section 36 of the Stamp Act.
- An admission (or marking) in interlocutory proceedings cannot preclude raising objections during the trial, since interlocutory proceedings and the trial are not the same proceeding in substance for the purposes of section 36.
- The unstamped and unregistered partition deed cannot be received in evidence at all to prove the factum of partition; it is required to be registered if it effects division.
Respondents' Arguments
- The partition deed had already been admitted in evidence under Order 13 Rule 4 CPC during the interlocutory application (I.A. No. 1025 of 1986), and consequently section 36 of the Indian Stamp Act would bar the petitioners from objecting to admissibility at a later stage.
- The Court below had admitted the document for collateral purposes and that limited admission could not be objected to by the petitioners.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Solamalai Muadaliar v. Vadamalai Muthiran, 23 M.L.J. 273 | That section 36 of the Indian Stamp Act prevents exclusion of what is already in evidence in the proceedings, but if earlier proceedings terminate and later proceedings commence where the document is not already in evidence, section 36 has no application. | The Court relied on this decision to support the proposition that a document admitted in the course of one set of proceedings (e.g., interlocutory or ex parte proceedings which later cease to have operative effect) does not necessarily bar objections when the matter is re-opened or re-tried; hence section 36 does not apply automatically here. |
| Munipalli Rajeswara Rao v. Sela Veerayya (Second Appeal No. 871 of 1958; judgment dated 1.2.1962, A.P.) | Approval and application of the principle that admission in earlier proceedings may not operate as conclusive evidence in later restarted proceedings. | The opinion notes that Jagan Mohan Reddy, J. approved and applied the principle in this case, and the revisional court treated that approval as supporting its view that section 36 does not operate to bar objections where earlier interlocutory admission was not a considered, continuing admission. |
| Mohd. Jamal Saheb v. Munwar Begum, AIR 1964 A.P. 188 | Authority endorsing the principle that admission in earlier proceedings does not necessarily preclude objection in subsequently re-commenced proceedings. | Referred to as further precedent supporting the position that the technical identity of a suit does not preclude the application of the principle that subsequent proceedings may not treat earlier interlocutory admissions as continuing evidence for the purposes of section 36. |
| N. Kannu v. Travancore Forward Bank, AIR 1957 Trav. Co. 272 | That marking a document for reference in interlocutory proceedings is not the same as admitting it in evidence in the suit; the presiding judge must apply his mind to admissibility. | The Court relied on this case to emphasize that mere marking or placing a document on record during an interlocutory application does not amount to its admission in evidence in the main suit and does not prevent later objection at trial. |
| Roshan Singh v. Zile Singh, AIR 1988 S.C. 881 (at 885) | Where a document purports by itself to effect a division and embodies the terms of the bargain (i.e., a partition), it must be registered; if not registered, section 49 of the Registration Act prevents its being admitted in evidence and section 91 of the Evidence Act operates to exclude evidence of partition. | The Court applied this Supreme Court authority to hold that the 12.11.1953 document, which on its terms is a partition, required registration and therefore could not be relied upon to prove partition if unregistered; this undercut the respondents' attempt to admit it even for collateral purposes. |
Court's Reasoning and Analysis
(Step-by-step account restricted to the content and reasoning expressly stated in the opinion)
- The court first examined what had occurred in I.A. No. 1025 of 1986 (the interlocutory injunction application). The record showed the interlocutory order merely referred to the respondents' contention that the partition deed could be admitted for collateral purposes but did not contain any clear, specific, or considered finding on the document's admissibility. Thus the court found that the presiding officer in the interlocutory application had not applied his mind to admissibility.
- Because the interlocutory order lacked a considered decision on admissibility, the court concluded that the mere marking or reference to the document under Order 13 Rule 4 CPC in that interlocutory stage could not be used to estop the petitioners from raising the admissibility objection at trial. In short, the interlocutory handling of the document was of "no consequence" to bind the petitioners later.
- The court then analyzed the scope of section 36 of the Indian Stamp Act. It stated the statutory object: section 36 prevents calling in question, at any later stage of the same suit or proceeding, the admissibility of an instrument that has once been admitted in evidence in that suit or proceeding. But the court emphasized that this prevents only exclusion of what already is evidence in that same proceeding; if an earlier set of proceedings terminate and later proceedings commence where the document is no longer in evidence, section 36 does not apply.
- The court relied on precedents (Solamalai Muadaliar; Munipalli Rajeswara Rao; Mohd. Jamal Saheb; N. Kannu) to reinforce the point that marking/admission in interlocutory proceedings is not necessarily equivalent to admission in the trial unless the presiding judge applied his mind and made a considered admission. The Court below therefore erred in applying section 36 to preclude objections at trial.
- The court then turned to whether the partition deed could legitimately be admitted for "collateral purposes." Examining the written statement and the role the respondents sought the deed to play, the court concluded the partition deed was not being relied upon for some peripheral matter: it was relied upon to establish the allotment of properties to Thayyalnayagi and thereby to defeat the plaintiffs' claim. Thus the deed was central to the defense (i.e., to prove partition), not merely collateral.
- Having found the deed to be central, the court applied the principle from Roshan Singh v. Zile Singh: a document which by itself effects division must be registered; if not registered, section 49 of the Registration Act prevents its admission in evidence, and section 91 of the Evidence Act bars proof of partition by such evidence. Therefore the unstamped and unregistered partition deed could not be used to prove partition.
- On these bases — (a) the interlocutory order did not involve a considered admission and so section 36 could not be invoked to bar objection, and (b) the partition deed was unregistered and central to the respondents' case and therefore not admissible to prove partition — the revisional court held that the Court below erred in receiving the deed in evidence for collateral purposes.
Holding and Implications
HOLDING: The civil revision petition is allowed and the order of the Court below admitting the unstamped and unregistered partition deed dated 12.11.1953 (for collateral purposes) is set aside. There will be no order as to costs.
Implications (as expressly indicated in the opinion):
- The immediate effect: the respondents cannot rely upon the unstamped and unregistered partition deed dated 12.11.1953 to prove the factum of partition in the subject suit; the document cannot be received in evidence for the purpose for which it was tendered.
- The court held that an interlocutory marking or reference to a document, where there is no considered finding on admissibility, does not activate section 36 of the Stamp Act so as to preclude later objections in the trial. In other words, section 36 protects only an admission that is truly part of the same evidence in the same proceeding after a considered application of mind by the presiding judicial officer.
- The opinion applied existing authorities (including a Supreme Court decision) about registration requirements for documents effecting division; it did not purport to create new law but applied and followed those precedents to the facts of the case.
1. The legal representatives of the deceased first plaintiff and the second plaintiff in O.S No. 598 of 1986, Additional District Munsifs Court, Tindivanam, have preferred this civil revision petition against the order passed by the Court below, holding that the partition deed dated 12.11.1953 is admissible in evidence for collateral purposes. In order to appreciate the circumstances giving rise to this question, it is necessary to very briefly refer to the facts. According to the case of the petitioners, one Vaithyalinga Mudaliar (fifth defendant in the suit) was the owner of the A and B schedule properties in the suit. On 23.1.1984, a document of exchange was executed between Vaithylinga and another Palani (not a party to the suit) in and by which the A schedule properties were to be taken by Palani and the properties belonging to Palani were to be taken by the fifth defendant. Palani is stated to have sold on 17.12.1985 the properties obtained by him under the deed of exchange viz. A schedule properties in the suit to the first plaintiff in O.S No. 598 of 1986, who died on 13.2.1989 and whose legal representatives are the petitioners herein. Similarly, on 10.12.1984, Vaithylinga is stated to have sold the B schedule properties to the second plaintiff in the suit represented by the guardian, deceased first plaintiff, Alleging that defendants 1 to 4 in the suit attempted to interfere with the possession and enjoyment of A and B schedule properties by the petitioners on 15.9.1986, the petitioners instituted the suit O.S No. 598 of 1986 praying for declaration of title to the A schedule properties in the plaintiffs and the B schedule properties in the second plaintiff and for a permanent injunction restraining the defendants from interfering with their possession and enjoyment. To that suit, Vaithylinga was impleaded as proforma fifth defendant. In the written statement filed by the fourth defendant, she put forward the plea that A and B schedule properties did not belong to Vaithylinga, fifth defendant in the suit. She also denied the exchange on 23.1.1984 between the fifth defendant and another Palani. According to her case, the properties were owned by one Rajarathinam, who died about 35 years ago and his wife was one Thayyalnayagi and they had three sons and a daughter, viz. Vaithylinga, Pooniah, Palani and Pattammal. The fourth defendant in the suit is the daughter of Pattammal and according to her, on 12.11.1953, a partition was entered into among Vaithylinga, Pooniah and Palani and the suit properties were allotted for the maintenance of Thayyalnayagi during her lifetime and were to be divided amongst the sons after her life time. Stating that despite the arrangement so made, Thayyalnayagi was being looked after by her daughter Pattammal and she was also in possession of the properties for more than the statutory period and that, on 10.12.1985, she executed the settlement deed in favour of her daughter (fourth defendant in the suit) which was also attested by Ponniah, the respondents disputed the title of the petitioners to the suit properties. In addition, it was also pleaded that the sale dated 17.12.1985 by Palani with reference to A schedule properties was a sham and nominal transaction and, therefore, the petitioners are not entitled to any relief in the suit.
2. It is necessary at this stage to refer to the interlocutory proceedings pending suit. In I.A No. 1025 of 1986, the plaintiffs in O.S No. 598 of 1986 prayed for a temporary injunction, restraining the respondents herein from interfering with the possession and enjoyment of the suit properties during the pendency of the suit. That application was resisted by the respondents on the ground that they were in possession of the suit properties and that no case was made out for granting an injunction as prayed for by the petitioners. During the course of the enquiry into that application, the respondents filed an unstamped and unregistered partition deed dated 12.11.1953 and its reception in evidence in the course of the injunction petition was objected to by the petitioners, when the respondents took the stand that it could be admitted in evidence for collateral purposes. However, the learned District Munsif had not given any clear or specific finding with reference to the admission of the document in evidence and that too for collateral purposes, but nevertheless dismissed the injunction application, which is also stated at the Bar to have been affirmed by the Appellate Court.
3. In the course of the trial of the suit, when the respondents again made an attempt to mark the unstamped and unregistered partition deed dated 12.11.1953 in evidence, in the course of cross-examination of P.W 2, the petitioner raised an objection regarding the admissibility of the document in evidence on the ground that the document was unstamped and unregistered. However, the Court below took the view that, as the document had already been admitted in evidence in I.A No. 1025 of 1986 under Order 13 Rule 4 Code of Civil Procedure, section 36 of the Stamp Act would preclude the petitioners from raising any objection regarding its admissibility and that the document could be admitted in evidence for collateral purposes.
4. In challenging the correctness of the order so passed, learned counsel for the petitioners contended that the view taken by the Court below regarding the scope of the applicability of section 36 of the Stamp Act is incorrect. According to learned counsel, the Court on the earlier occasion, while dealing with I.A No. 1025 of 1986, had not applied its mind to the question of admissibility of the document, apart from referring to the purpose of such admission, which, according to it, was collateral and, therefore, there was no question of the applicability of section 36 of the Stamp Act at all. In addition, it was also pointed out that the admission of documents in evidence, even if it had been done in the course of the interlocutory proceedings, would not preclude a party from raising an objection in the course of the trial of the suit, as interlocutory proceedings and the suit cannot be considered to be same proceedings. An objection was also raised that the document being unstamped and unregistered cannot be received in evidence at all, much less, to prove the factum of partition put forward by the respondents in the written statement.
5. On the other hand, learned counsel for the respondents pointed that the partition deed dated 12.11.1953 had already been admitted in evidence under Order 13, Rule 4, Code of Civil Procedure, in the course of the interlocutory proceedings in I.A No. 1025 of 1986 and under those circumstances, section 36 of the Stamp Act would be a bar and the Court below was, therefore, justified in declining to permit the petitioners to raise an objection regarding the admissibility of the document in evidence. It was also further submitted that the Court below had admitted the document in evidence only for collateral purposes and that, in any manner, cannot be objected to by the petitioners.
6. Before considering the submissions so made, it becomes necessary to ascertain whether, in the course of I.A No. 1025 of 1986, the Court had applied its mind to the question of admissibility of the unstamped and unregistered partition deed dated 12.11.1953 Earlier, it had been noticed that, in I.A No. 1025 of 1986, the petitioners had prayed for the relief of injunction pending disposal of the suit and in the course of those proceedings, the respondents had placed reliance upon the unstamped and unregistered partition deed to make out a case that the petitioners are not entitled to the relief of injunction as prayed for. From paragraph 5 of the order passed in I.A No. 1025 of 1986, it is seen that the Court had not considered the question of admissibility of the partition deed dated 12.11.1953, except to state that it was argued on behalf of the respondents that it could be admitted in evidence for collateral purposes. It is also further seen that no clear or specific finding had been rendered regarding the admissibility of the unstamped and unregistered partition deed and whether it could be admitted in evidence or not. The Court below had merely referred to this document and had proceeded to reject the application for injunction filed by the petitioners. The manner in which, in the course of I.A No. 1025 of 1986, the court below had dealt with the unstamped and unregistered document dated 12.11.1953 shows that the Court had not applied its mind at all to the question of admissibility of the document in evidence in the light of the objections raised by the petitioners. In view of that, the mere admission of such a document as per Order 13 Rule, 4, Code of Civil Procedure, cannot be put against the petitioners.
7. Even on the footing that the document had been admitted in evidence in the course of I.A No. 1025 of 1986, the question would still remain whether the petitioners could not raise any objection regarding its admissibility in view of section 36 of the Indian Stamp Act. It would also be necessary to advert to the question whether to admission of a document at an interlocutory stage would preclude the parties from raising an objection in the course of the trial of the suit. Under section 36 of the Indian Stamp Act, where the instrument had been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument had not been duly stamped. The object of the section is clear, in that, it prevents only exclusion of what already is evidence, in the suit or proceedings. This, however, would not mean that if certain proceedings, like interlocutory proceedings in a suit, get terminated and the other proceedings like the trial commenced, where the document could not be regarded as being in evidence, section 36 of the Indian Stamp Act can still have application, though it may be that the interlocutory proceedings had arisen in the same suit. In other words, if the instrument had been admitted in evidence in a suit or proceeding, such admission cannot be called in question at any stage of the same suit or proceeding, on the ground that the instrument had not been duly stamped. In this case, as already stated, the Court on the earlier occasion had not applied its mind at all to the question of admissibility in evidence of the unstamped and unregistered partition deed dated 12.11.1953 and even though the document purports to have been admitted under Order 13, Rule 4, Code of Civil Procedure, such admission is of no consequence whatever. Even on the footing that it had been admitted in the course of the interlocutory proceedings, such admission cannot bar the petitioners from raising an objection based on want of stamp and registration in the course of the trial of the suit. It would be useful in this connection to refer to Solamalai Muadaliar v. Vadamalai Muthiran, 23 M.L.J 273. An ex parte decree was passed in a suit on a promissory note and at the ex parte trial, the note was admitted in evidence and subsequently, the ex parte decree was set aside. Thereafter, the promissory note was attempted to be marked in evidence, when an objection based on section 36 of the Indian Stamp Act was raised on the ground that it had already been admitted in evidence in the course of the ex parte trial proceedings. That objection was not accepted by the trial Court. While dealing with the correctness of the view so taken, it was pointed out that section 36 of the Indian Stamp Act lays down a rule, the effect of which is to prevent only the exclusion of what already is in evidence in the proceedings, but, if certain proceedings terminated and other proceedings re-commenced, where the document could not be regarded as being in evidence already, the section has, then, no application. It was also pointed out that technically, the suit is regarded as the same, though the ex parte decree may be set aside, but, in substance, the proceedings are different, when they re-commence on the setting aside of the ex parte decree. The principle of this decision has been approved and applied by Jagan Mohan Reddy, J. in Munipalli Rajeswara Rao v. Sela Veerayya (Second Appeal No. 871 of 1958, Judgment dated 1.2.1962 -Andhra Pradesh) and Mohd. Jamal Saheb v. Munwar Begum, AIR 1964 A.P 188. To similar effect is the decision in N. Kannu v. Travancore Forward Bank, AIR 1957 Trav. Co. 272, where the question arose whether the marking of a document in the course of interlocutory proceedings, could be regarded as admission of the document in evidence in the suit. Referring to section 36 of the Indian Stamp Act and Order 13, Rules 3 and 4, Code of Civil Procedure, the Court pointed out that the Presiding Judge must apply his mind to the admissibility of the document and merely marking the documents for reference for purposes of interlocutory application, would not be admission of documents in evidence. The Court also pointed out that the failure of the defendant to object to the marking of the documents in connection with the application for attachment before judgment, cannot preclude him from pressing his objection in the suit as to the admissibility of those documents in evidence. In view of the aforesaid principles, it is difficult to read section 36 of the Indian Stamp Act as precluding the petitioners from putting forward the objection regarding the admissibility of the partition deed dated 12.11.1953 in evidence. It is common knowledge that proceedings in a suit and interlocutory proceedings in a suit are not the same, though the latter may arise only in the course of the suit. section 36 of the Indian Stamp Act is intended only to prevent a person from raising any objection to the admissibility of evidence is a suit or interlocutory proceeding, if it had been admitted in the suit or proceeding, as a later stage of the suit or proceeding, as the case may be. That provision cannot be applied, read or understood as laying down that admission of a document in the course of interlocutory proceedings, is also admission of the document in the course of the suit. The Court below was, therefore, not right in applying the provision in section 36 of the Stamp Act to the instant case.
8. That leaves for consideration the objection raised by the petitioners regarding the non-stamping and non-registration of the partition deed dated 12.11.1953 Considering the defence that had been raised by the defendants in the written statement, it is obvious that they went to establish a case of partition amongst Vaithylinga, Ponniah and Palani and the allotment of properties to Thayyalnayagi thereunder, which were enjoyed by her daughter Pattammal and later settled by her on the fourth defendant in the suit. In other worder, for establishing the allotment of properties to Thayyalnayagi, the respondents have necessarily to make out the partition dated 12.11.1953 and this cannot be considered as a collateral purpose. On the contrary, the main purpose of marking the document dated 12.11.1953 in evidence is only with a view to establish the partition thereunder and the allotment of properties to Thayyalnayagi, on behalf of whom Pattammal is stated to have enjoyed the same and subsequently settled the properties on her daughter. It is not in dispute that the document is unstamped and unregistered and the purpose of marking the document in evidence, as stated earlier, is only to establish the allotment of properties to Thayyalnayagi and that cannot be done, unless the partition is made out. Under those circumstances, the Court below fell into an error in holding that the document could be received in evidence for collateral purpose, overlooking that the document was attempted to be put in only to establish the partition as put forward in the written statement and nothing else. It is not in dispute that even the court below had found in paragraph 2 of its order that from the terms of the document, it was one of partition and in that the Court below was right. In that event, as pointed out by the Supreme Court in Roshan Singh v. Zile Singh AIR 1988 S.C 881 at 885, when the document purports by itself to effect a division and embodies all the terms of the bargain, it will be necessary to register it and if it is not registered, section 49 of the Registration Act will prevent its being admitted in evidence, and evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872.
9. Under those circumstances, there is no question of the document being admitted in evidence for the so-called collateral purpose, as done by the Court below. Consequently, the civil revision petition is allowed and the order of the Court below is set aside. There will be no order as to costs.
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