Balmer Lawrie and Co. Ltd. vs A. Jayachandra Reddy

G. Rajasuria, J.—Animadverting upon the order dated 04.02.2008 passed by the learned XI Assistant Judge, City Civil Court, Chennai in

O.S. No. 294 of 1998, this civil revision petition is focussed.

Heard both sides.

A ""resume"" of facts, which are absolutely necessary and germane for the disposal of this revision would run thus:

The respondent filed the suit in O.S. No. 294 of 1988 seeking the following relief:

-for a permanent injunction restraining the defendant herein their agents or servants or officers or men or any one from erecting a gate or in any

way interfering with the plaintiff''s ingress and egress to the Anna Salai through the declared common passage measuring about 17 feet width ad 88

feet depth, more fully described in the plaint schedule ""B"" .

The petitioner, being the defendant filed the written statement. During the trial, one document Ex.A4 nomenclatured as deed of declaration was

marked on plaintiff''s side. However the petitioner/defendant objected for marking. But the trial Court by its order dated 04.02.2008 rejected the

contention of the petitioner and marked the documents. Being aggrieved by and dissatisfied with the same, the present civil revision petition has

been filed on various grounds.

The learned Counsel for the revision petitioner, placing reliance on the grounds of revision, would develop his argument to the effect that Ex.A4,

despite nomenclatured as deed of declaration, bears only a stamp duty of Rs. 10/- and it has not been adequately stamped. But the trial Court

ignoring the plea and without even recording the objection of the petitioner, allowed to mark the said document. At this juncture, I recollect and

call up the following decisions:

(i) AIR 2001 Sc 1158 (Bipin Shantilal Panchal v. State of Gujarat and Anr.). Certain excerpts from it would run thus:

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 of oral evidence the trial court can make a note of such objection and mark the objected document

tentatively as an exhibit in the case (or 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.)

The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be

wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if

not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final

judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the

case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation

and would not add to their misery or expenses.

(ii) A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and five others, . An excerpt from it would run thus:

To sum up the legal position:

(I) A family arrangement can be made orally,

(II) If made orally, there being no document, no question of registration arises,

(III) If the family arrangement is reduced to writing and it purports to create declare, assign, limit or extinguish any right, title or interest of any

immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act,

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of

the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written

(V) However, a document in the nature of a memorandum, evidencing a family arrangement already entered into and had been prepared as a

record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and,

where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a

document of title declaring for future what rights in what properties the parties possess.

(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpsoe is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person cannot

claim a right or title, to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35

of the Indian Stamp Act.

A bare perusal of the impugned order of the lower court would demonstrate that the lower court in this case, applied its mind relating to stamp

duty and held that no stamp duty was payable on Ex.A4. Ex.A4 would demonstrate and exemplify that it is a unilateral document relating to certain

rights. In my opinion, such unilateral document does not require any stamp duty as correctly pointed out by the lower Court, however it is found

written on an embossed stamp paper of Rs. 10/-. Hence, no interference with the order of the lower Court on that count is required.

The learned Counsel for the revision petitioner would also submit that the objection of the petitioner has not been recorded and as per the well

settled proposition of law, the objection of the petitioner after being recorded, should be decided only along with the suit.

I could see considerable force in the submission made by the learned Counsel for the revision petitioner and accordingly, while disposing of this

civil revision petition, with the finding that the order of the lower court was right in allowing the document to be marked without paying additional

stamp duty, I would like to direct the lower Court is directed to make an endorsement in the deposition in brackets that such document has been

marked subject to deciding on the relevancy and the admissibility of the same and the actual adjudication on Ex.A4 should be made at the time of

the disposal of the suit.

With the above observation, this revision is disposed of. However, there shall be no order as to costs. Consequently, the connected

miscellaneous petition is closed.