Jayaraman and Murugaiyan vs Paneerselvam and Achiammal

G. Rajasuria, J.—Animadverting upon the order dated 29.01.2008 passed by the learned District Munsif cum Judicial Magistrate, Nannilam

in I.A. No. 309 of 2007 in O.S. No. 84 of 2004, this civil revision petition is focussed.

The epitome and the long and short of the case of the petitioners could succinctly and precisely be set out thus:

The respondents/plaintiffs filed the suit in O.S. No. 84 of 2004 seeking injunction relating to an agricultural land. I.A. No. 309 of 2007 was filed by

the plaintiffs for reception of documents and despite objection raised by the defendants, the same was allowed on the ground that the said

document is an unregistered lease deed and duly stamped one. Being aggrieved by the said order, the present revision is focussed on various

grounds.

Though notice was served on the respondents, no one represented.

The learned Counsel for the revision petitioners, placing reliance on the grounds of revision would develop his argument to the effect that the

impugned document was not at all a stamped one, but curiously enough the lower court in the impugned order observed as though it was a duly

stamped document; as such, there was non application of mind on the part of the lower Court.

At this juncture, my mind is reminiscent and redolent of the judgment of this Court reported in 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 it would leave no doubt in the mind of the Court that whenever an unregistered and unstamped document is produced before

the Court and even though such document might be used for collateral purpose nonetheless, as per Section 35 of the Indian Stamp Act, necessary

Stamp duty and penalty should be collected.

It is obvious from the records that the said document was not at all a stamped one and it is not known as to how the lower Court could come to

the conclusion that it was duly stamped. As such, there was non application of mind on the part of the lower Court.

Hence, this revision is allowed and the order dated 29.01.2008 passed in I.A. No. 309 of 2007 in O.S. No. 84 of 2004 is set aside and the

said I.A is remitted back to the lower Court to apply Section 35 of the Indian Stamp Act at the first instance and thereafter, proceed to decide the

I.A. No. 309 of 2007 afresh. No costs. Consequently, the connected miscellaneous petition is closed.