Munia Pillai and Chockalingam vs Ramalingam

S. Ashok Kumar, J.—This Civil Revision Petition is filed by the plaintiffs in the suit against the order dated 27.11.2006 made in I.A. No.

1404 of 2006 in O.S. No. 155 of 2004 by the learned Additional Munsif, Tidivanam in dismissing the said Interlocutory Application filed to reject

Ex.B.1, which is an unregistered Bokkiam (Lease) document filed by the defendant.

The plaintiffs filed the Interlocutory Application stating that Ex.B.1 dated 13.8.1998 marked by the defendant is an unregistered Bokkiam

Document even though objection has been raised for marking the said document as it has to be registered as per Section 17 of the Indian

Registration Act. Therefore the unregistered document which is invalid in the eye of law is liable to be rejected and hence the application to reject

the said document.

The defendant contested the said application stating that the plaintiffs have not raised any objection to the application filed under Order 7 Rule

14 of the CPC to receive the said document. More over Rs. 990 has been paid as deficit stamp duty on the said instrument as directed by the

court below and when once endorsement has been made for the payment of deficit court fee, the said document can be received in evidence.

Therefore, the application to reject the said Lease agreement is liable to be dismissed.

The learned Additional District Munsif, Tindivanam, considering the averments and the submissions of the learned Counsel appeared on either

side of the parties, dismissed the application filed by the plaintiffs to reject Ex.B.1, Lease Agreement. Against the said order, this CRP is preferred

before this Court.

Even a perusal of the order impugned in this revision would make it clear that the plaintiffs have not made any objection as to the filing of the

said document and it is only the court below while accepting the said document under Order 7 Rule 14 CPC has directed the defendant to pay the

deficit stamp duty and accordingly as per Section 35 of the Stamp Act, deficit stamp duty has been paid and endorsement has also been made to

the said effect and thereafter only the said agreement has been marked as Ex.B.1 on behalf of the defendant, which has been rightly received in

evidence. Only Subsequently to the said reception of the said document, the plaintiffs have filed a memo making their objection to the marking of

the said unregistered document. The trial court also rightly held that after payment of deficit stamp duty with penalty the same cannot be questioned

or challenged u/s 36 of the Stamp Act, before the trial court unless in a revision by an appellate court u/s 61 of the Stamp Act. Here also, there is

no challenge as to the quantum of deficit stamp duty and penalty paid by the defendant. Therefore, even u/s 61 of the said Act, this Court need not

exercise any power for impoundment of the instrument in question.

Apart from that, as rightly observed by the court below, the defendant sought to mark the said document Ex.B.1, Lease Agreement only for a

collateral purpose to prove his possession based on the said unregistered lease agreement. Therefore, the said document cannot be rejected at this

stage.

The decision relied on by the learned Counsel for the revision petitioners/plaintiffs in Arumughachamy Nadar v. Deivanaiammal reported in 1998

(2) MLJ 5 deals with a mortgage deed for the value of of Rs. 40,000/= sought to be relied on by a tenant as against the landlord in the said case.

In the said circumstance this Court held that the document which is compulsorily registrable cannot be admitted in evidence for any purpose u/s 49

of the Act. But there is a proviso to that section which enables to look into document for any collateral purpose. If the petitioner wants to prove his

possession as a mortgagee, then that cannot be treated as a collateral purpose coming under the proviso to Section 49 of the Indian Registration

Act.

On the other hand leaned counsel appearing for the respondent/defendant relied upon the judgments reported in Karuppannan Vs.

Thavasiappan and President Gobichettipalayam Co-operative Society Limited, ; Chellammal Vs. Meenakshi, ; and also a decision of mine made in

CRP.No:1752 of 2006. All the above decisions are to the effect that when sufficient stamp duty with penalty under the proviso to Section 35 of

the Stamp Act has been paid to the unstamped and unregistered document, the same can be looked into and received in evidence and the trial

court should record the objection raised by the other side, which objection has to be decided at the time of trial of the case which includes whether

the instrument in question is relied upon and marked only for collateral purpose or not.

In the above circumstances and as held by various courts, the trial court is directed to decide the objection raised by the plaintiffs at the final

stage of the case. It is also made clear that mere marking of the document does not prove any of the recitals of the document itself and the truth of

the document has to be independently proved and it is always open tot he plaintiffs to challenge execution of the same.

With the above direction, this CRP is disposed. Consequently, connected MP is closed. No costs.