Duraisamy and Murugesan vs Subbaraya Reddy

S. Rajeswaran, J.—This Civil Revision Petition is filed against the Order dated 10.03.2006 passed in O.S. No. 40 of 1987 on the file of the

District Munsif, Ponneri.

The defendants in O.S. No. 40 of 1987 are the revision petitioners before this Court.

The respondent herein/plaintiff filed O.S. No. 40 of 1987 for a permanent injunction restraining the defendants from trespassing into the

plaintiff''s possession of the land to stop the oil engine in the well in S. No. 58 at Serpedu village. A written statement was filed and the suit is being

contested.

During trial, the revision petitioners/defendants relied on a partition koorchit contending that the document is only a record of earlier partition and

it is only a family arrangement. It is the further case of the revision petitioners that as a family arrangement, the document does not require

registration or stamp duty. Hence, they wanted to mark the document. The trial court by order dated 10.03.2006 held that the koorchit required

stamp duty and registration u/s 17(1)(b) of the Indian Registration Act and since it is not registered u/s 49 of the Indian Registration Act, it is not

admissible in evidence. The trial court however observed that on payment of stamp duty and penalty, the document could be received in evidence

if required for any collateral purpose. Aggrieved by the order of the trial court, refusing to mark the koorchit, the above Civil Revision petition has

been filed by the defendants in the suit.

Heard the learned Counsel appearing for the revision petitioners and the learned Counsel for the respondent. I have also gone through the

documents and judgments filed in support of their submissions.

According to the learned Counsel for the revision petitioners, the koorchit was only a document recording the past transaction and therefore, it

does not require stamp duty or registration. In support of his submission, he relied on the decision of this Court reported in 2005 1 L.W.343

(1.R.Deivanai Ammal (Died), 2. M.K. Ramalingam).

Per contra, the learned Counsel for the respondent contended that the koorchit in this case is a document which is not a record of the past

transaction, but, it purports to declare the rights of certain parties and extinguishes the rights of some parties. Therefore, it should be registered

compulsorily after payment of necessary stamp duty. He relied on the decisions of this Court reported in

A.I.R.1937 MDS 638 (Ayitham China Suryarao v. Maddala Suryachandra Rao)

1951 M.L.J. 151 (K. Muhamad Ghouse Sahib v. jamila Bi and Ors.).

I have considered the rival submissions carefully with regard to facts and citations.

First, let me consider the contents of the koorchit to find out whether it is a family arrangement recording the past transactions as contended by

the revision petitioners.

A perusal of the koorchit will show that it is not a family arrangement recording the past transactions, but, it creates certain rights in favour of

certain parties and extinguishes certain rights in favour of certain parties. Therefore, the trial court is absolutely right in coming to the conclusion that

this document requires registration.

In 2005 1 L.W.343 (cited supra), a Division Bench of this Court held that if the family arrangement is reduced to writing and it purports to

create or extinguish any right, it must be properly stamped and duly registered and if a document is in the nature of a memorandum evidencing a

family arrangement already entered into, it need not be stamped or registered.

In A.I.R.1937 MDS 638 (cited supra), this Court held that the unregistered partition lists not being registered, though required to be

registered, could not be admissible in evidence.

In 1950 1 ML.J.151 (cited supra), a Division Bench of this Court held that a koorchit in that case created a right and therefore, it should have

been registered and not having been registered, it cannot be used in evidence.

There is no controversy with regard to the settled law in this regard. In fact, it is settled law that even an unregistered document could be relied

on by the court for the collateral purposes.

In the present case, what was sought to be marked is a koorchit, which creates certain rights and extinguishes certain rights in favour of the

parties. Therefore, it is a compulsorily a registered document. Even then, it could be relied on for collateral purposes on payment of deficit stamp

duty and penalty. Therefore, I am of the considered view that the trial court has correctly passed the order dated 10.03.2006 and I do not find any

ground to interfere with the same under Article 227 of the Constitution of India.

If the revision petitioners want to mark the document for collateral purposes, it is open to them to pay the deficit stamp duty with penalty and

thereafter, the trial court should send a copy of the document along with the amount collected to the officer concerned for proper adjudication.

In the result, the Civil Revision petition is dismissed. No costs. Consequently, M.P. No. 1 of 2007 filed for stay is also dismissed.