IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :10.12.2008 Coram The Honourable Mr.Justice S.RAJESWARAN C.R.P.(PD)No.1083 of 2008 in M.P.No.1 of 2008 1.K.Thangavelu 2.Tmt.T.Anandhi 3.Tmt.S.Shanthalakshmi ... Petitioners Vs. 1.Tmt.Aruldevi 2.Tmt.T.Saroja 3.P.Mohd.Fahurudeen 4.P.Baskaran 5.Srinivasan 6.Kumaresan ... Respondents This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the Order dated 01.10.2007 in I.A.No.14597 of 2007 in O.S.No.6602 of 2004 on the file of the V Assistant Judge, City Civil Court, Chennai. For Petitioners : Mr.T.P.Kathiravan for M/s.A.K.Rajeswari Associates For Respondents : Mr.A.Palaniappan O R D E R This Civil Revision Petition has been filed by the petitioners herein/defendants 1, 6 & 7 to set aside the Order dated 01.10.2007 in I.A.No.14597 of 2007 in O.S.No.6602 of 2004 on the file of the V Assistant Judge, City Civil Court, Chennai. 2. The defendants 1,6 and 7 in O.S.No.6602 of 2004 are the revision petitioners herein. The suit in O.S.No.6602 of 2004 has been filed by the respondents 1 and 2 herein for a declaration to declare that the land and superstructure described in the plaint schedule absolutely belongs to the second plaintiff(Second respondent herein) and for a direction directing the revision petitioners (Defendants 1,6 and 7) to quit and deliver possession and further directing the defendants 2 to 5 in the suit (respondents 3 to 6) to deliver possession by attorning tenancy in favour of the second plaintiff (second respondent herein). 3. The case of the respondents 1 and 2/plaintiffs in O.S.No.6602 of 2004 is that, the first plaintiff is the daughter of the second https://hcservices.ecourts.gov.in/hcservices/ plaintiff and the first defendant. The second plaintiff is the wife of the first defendant. The first plaintiff's father after marrying the second plaintiff, started living in a rented house in Kodambakkam and at that time, the first defendant did not have any job. The second plaintiff's father spent money and got a conductor post in the City Bus Transport Corporation for the first defendant. When they decided to buy a house of their own, the second plaintiff sold her gold chain and using the sale proceeds, the land described in the plaint schedule was purchased together with a hut for Rs.6,000/-. The said plot belonged to the Tamil Nadu Slum Clearance Board and therefore, a Lease-cum-Sale agreement date 28.11.1983 was granted in favour of the second plaintiff. As the first defendant's salary was hardly sufficient to meet out the family expenses, the second plaintiff started doing tailoring works and selling sarees, etc., and out of the earnings made by her, the second plaintiff was able to subscribe for chits of Rs.10,000/- denomination. Using her savings, the second plaintiff put up a pucca house in the suit site and she also constructed two shops which are let out to tenants. Thus, the suit property absolutely belongs to the second plaintiff. She also purchased another vacant land out of her own funds. The first defendant shifted the residence to the area which is close to the plot purchased by her with an idea of putting a house thereon. As the second plaintiff and the first defendant had no money to spend for the marriage of their first daughter, they decided to give her in marriage to the second plaintiff's brother. The marriage was solemnised in a simple manner. Thereafter, the first defendant was looking for a groom for the second daughter and he promised to give her in marriage to one Selvakumar. But later on, the first defendant refused to give her in marriage to that Selvakumar. But the second daughter married to said Selvakumar against the consent of both the parents. Thereafter, the said Selvakumar married another girl and drove out second plaintiff's second daughter. This breakdown of the marriage of their second daughter was the reason for the misunderstanding between the husband and the wife as the first defendant started scolding the second plaintiff. The said Selvakumar entertained the idea of grabbing the property of the second plaintiff and he fabricated a sale agreement and tried to sell the said land purchased by her. Therefore, the first defendant filed O.S.No.1092 of 1996 against the plaintiffs and the said Selvakumar for injunction. The first defendant has also been eyeing on the suit schedule property. He managed to create all necessary records to change the allotment of land from the Slum Clearance Board in his name. Using the signature obtained from the second plaintiff, the first defendant transferred the allotment in his name in 1996, but, this fact was not at all known to the plaintiffs. The first defendant started ill-treating the second plaintiff/the wife and tried to send her out. The eldest daughter i.e., the first plaintiff sympathised with her mother and consoled her. The second plaintiff was moved by the love and affection shown by the first plaintiff and therefore, she decided to settle the vacant plot purchased by her in favour of the first plaintiff and accordingly, executed a settlement deed dated 15.05.2002. Unable to bear the cruel treatment meted out to her by the first defendant, the second plaintiff left the matrimonial home and she is now living in her native place. https://hcservices.ecourts.gov.in/hcservices/ 4. After coming to know of the fact that the first defendant obtained the sale deed in respect of the suit property on 28.11.2002 from the Tamil Nadu Slum Clearance Board, the second plaintiff/wife filed a writ petition in W.P.No.26135 of 2004, directing the Slum Clearance Board to cancel the deed dated 20.11.2002. The Slum Clearance Board replied that they could not cancel the allotment once the registration has taken place. As the second plaintiff is aged and is sick, she gifted the suit property to the first plaintiff out of love and affection. The defendants 2 to 4 are the tenants in the suit property and even though they were inducted by the second plaintiff, the first defendant is harassing them by withholding the amenities and coercing them to pay the rent to him. As the sale deed obtained by the first defendant on 20.11.2002 is tainted with fraud, the same is not binding on the second plaintiff. Therefore, the plaintiffs filed O.S.No.6602 of 2004 for the aforesaid reliefs. 5. The first defendant filed a written statement stating that he purchased the suit property from the allottee Thiru.Mariappan for a sum of Rs.6,000/- in October,1981, out of the amount of Rs.4,000/- received from his younger sister's husband. It is he who put up the entire construction after obtaining PF loan and other loans from his employer. After getting the absolute sale deed on 20.11.2002 from the Tamil Nadu Slum Clearance Board, he executed a deed of gift dated 23.12.2004 in favour of his daughters viz., 1)T.Anandhi and 2) Santhanalaxmi, the defendants 6 and 7 in the suit. According to the first defendant, the second plaintiff created a forged document of settlement deed dated 05.11.2004 in respect of the suit property in favour of the first plaintiff. 6. The defendants 4 and 5 filed a memo stating that they are adopting the written statement filed by the first defendant. A separate written statement has been filed by the defendants 6 and 7, stating that their father executed the settlement deed of gift on 23.12.2004 and they are in peaceful possession and enjoyment of the suit property as absolute owners. They pointed out in their written statement that they filed a civil suit in O.S.No.3413 of 2005 on the file of the 5th Assistant City Civil Court, against the first plaintiff and the defendants 2 and 3 for a permanent injunction restraining them from interfering with their peaceful possession and enjoyment of the suit schedule property. Along with the suit, they filed an application in I.A.No.10792 of 2005 for temporary injunction. The trial Court granted an ad-interim injunction on 09.05.2005 and later on, the injunction application was allowed by order dated 21.07.2005. 7. During trial, the revision petitioners and others filed an application in I.A.No.14597 of 2007 under Order 13 Rule 3 CPC, to reject the suit document No.1 namely Lease-cum-Sale agreement dated 28.11.1983 which is inadmissible in evidence. In the affidavit filed in support of I.A.No.14597 of 2007, it is stated that the lease-cum- sale agreement dated 28.11.1983 which was filed by the plaintiffs could not be received in evidence and the same is to be rejected since the said document was not duly stamped and registered under Section 17 and 49 of the Indian Registration Act. It is further https://hcservices.ecourts.gov.in/hcservices/ stated that the document No.1 is not the original document, and therefore it is not admissible in evidence. This application was resisted by the plaintiff by filing a counter affidavit wherein it is stated that the said document is being filed for the limited purpose of ascertaining the fact that the said document stood in the name of the second plaintiff and to establish that the first defendant had not indulged in the transaction. It is further stated that the original document had been taken from the custody of the second plaintiff and the same was surrendered before the authorities for obtaining the sale deed by the first defendant. For the limited purpose of showing that the said document stood in the name of the second plaintiff, it does not require any registration as alleged by the first defendant. Hence, they prayed for dismissal of the application. 8. The trial Court by order dated 01.10.2007 dismissed I.A.No.14597 of 2007 by holding that the document could be considered for collateral purposes as held by the Hon'ble Supreme Court reported in 2003(4) SCC 161. Aggrieved by the order of the trial Court, the above civil revision petition has been filed under Article 227 of the Constitution of India. 9. Heard the learned counsel for the petitioners and the learned counsel for the respondents 1 & 2/caveators. I have also gone through the documents and judgment filed in support of their submissions. 10. The learned counsel for the revision petitioners submits that the document No.1 is a Lease-cum-Sale agreement dated 28.11.1983 for a period of 20 years and therefore, it should have been properly stamped and registered as per the provisions of the Stamp Act and Registration Act. Even for collateral purposes, the learned counsel for the petitioners contends that proper stamp duty should have been filed or else the document has to be rejected. The learned counsel for the the petitioner further argued that the document No.1 is not the original document and it is only a xerox copy of the lease-cum- sale agreement dated 28.11.1983 and such a xerox copy of the document should never be accepted in evidence. The learned counsel for the revision petitioners relied on a judgment of the Hon'ble Supreme Court reported in 2008 (3) CTC 457(Hariom Agarwal Vs. Prakash Chand Malviya), to submit that a photocopy of an instrument which was not duly stamped cannot be validated by impounding and cannot be admitted as secondary evidence also. 11. Per contra, the learned counsel for the respondents 1 & 2/caveators submits that the original document has been surrendered to the Slum Clearance Board and therefore, the copy of the document could be accepted in evidence since the document was issued by a Government authority i.e., Slum Clearance Board. He further points out that even before marking of the document, the application has been filed to reject the document and therefore, as rightly held by the trial Court, the application itself is premature. 12. I have considered the rival submissions carefully with regard to the facts and citation. https://hcservices.ecourts.gov.in/hcservices/ 13. It is not in dispute that I.A.No.14597 of 2007 has been filed under Order 13 Rule 3 CPC., to reject the suit document No.1, i.e., the lease-cum-sale agreement dated 28.11.1983, even before the same was marked through the witnesses. But, now, it is an admitted fact that later on this document was marked by the trial Court. 14. A perusal of the document No.1, will make it very clear that it is a lease-cum-sale agreement executed by the Slum Clearance Board on 28.11.1983 in favour of the second plaintiff in the suit. It is also an admitted fact that the document No.1 is only a xerox copy and not the original. In such circumstances, I find force in the submissions of the learned counsel for the revision petitioners that a xerox copy of a document could not be admitted even as a secondary evidence in the absence of following the mandatory provisions contained in the Indian Evidence Act. It is not established before me that the respondents 1 and 2 have given notice to produce the original and only thereafter the document was marked. In the absence of following the mandatory procedures,as contemplated in the Indian Evidence Act, the trial Court has committed an illegality in marking the document No.1 for the collateral purposes. 15. A perusal of the order passed by the trial Court will show that the trial Court has not at all gone into the nature of the document and has failed to advert to the fact that the document is only a xerox copy of the original. The trial Court has only considered the aspect of registration and stamp duty and only in that context following the Supreme Court's Judgment reported in 2003(4)SCC 161, the trial Court has allowed the application on the ground that it could be admitted for collateral purposes. But, the trial Court has lost sight of the fact that the document is only a xerox copy and therefore, the same is inadmissible in evidence. 16. In the light of the above facts, I am inclined to interfere with the order of the trial Court by setting aside the same and allowing I.A.No.6602 of 2004 filed by the revision petitioners. 17. Now, it is admitted by both the parties that at the time of passing orders in I.A.No.14597 of 2007, the document was not marked, but, later on the same was marked by the trial Court on 06.11.2007. If that being so, the trial Court is directed to recall the order and reject the document marked as an exhibit which is the lease-cum-sale agreement dated 28.11.1983. 18. In the result, the civil revision petition is allowed. No costs. Consequently, connected M.P.No.1 of 2008 is also closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar rrg https://hcservices.ecourts.gov.in/hcservices/ To The V Assistant Judge, City Civil Court, Chennai-104. CRP.(PD).No.1083 of 2008 KSK(CO) EM/19.12.08 https://hcservices.ecourts.gov.in/hcservices/