THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.6106 of 2009 Dated:- _______ April, 2011 Between:- Smt.G.Anandamma and another …Petitioners AND Sri G.Venkataramana and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.6106 of 2009 ORDER:- This revision is directed against the order dated 02.12.2009 passed in O.S.No.17 of 1997 by the Senior Civil Judge, Madanapalle, whereby and whereunder, it was held that the documents dated 10.06.1967 can be marked for collateral purpose. 2. Both the petitioners herein are the plaintiffs and the first and second respondents herein are the first and second defendants respectively before the Court below. For the sake of convenience, the parties will be referred to as they were arrayed before the Court below. 3. The brief facts of the case are as follows:- The first plaintiff is wife and the second plaintiff is the daughter of one G.Krishna Murthy. Late G.Krishna Murthy, defendants 1 and 2 and one Padmavathamma are the children of G.Ramayya and G.Venkatamma. The suit schedule property originally belonged to one G.Venkatamma. After the death of G.Ramayya, the properties were divided under an unregistered partition deed dated 10.08.1967. However, the properties of G.Venkatamma were not divided. G.Venkatamma died in the year 1974. According to the plaintiffs, they being the Legal representatives of G.Krishna Murthy and defendants 1 and 2 and Padmavathamma, became entitled to equal shares in the suit schedule property. It is also their case that during the lifetime of G.Krishna Murthy, he had been managing the suit schedule property and after his demise, the first defendant has been managing the suit schedule property and giving share to the plaintiffs’ and other shareholders. 4. Alleging that the first defendant is not showing proper accounts for the produce derived from the suit schedule property, the plaintiffs filed a suit for partition before the Court below. Defendants 1 and 2 filed a written statement and their specific case is that G.Krishna Murthy – husband of the first plaintiff had received a sum of Rs.10,000/- from them and relinquished his share under Ex.B.1 – unregistered relinquishment deed dated 10.08.1967 and that the contention of the first plaintiff that she has been in joint possession of the suit schedule property along with the defendants is utterly false. When the defendants wanted to mark Ex.B.1, the plaintiffs objected. The learned Senior Civil Judge, Madanapalle passed orders refusing to mark Ex.B.1. Aggrieved by the same, the defendants carried the matter in revision before this Court in C.R.P.No.4932 of 2006 and this Court, by order dated 11.12.2006, upheld the order passed by the learned Senior Civil Judge, Madanapalle and held that the documents creating rights and title over the property whose value exceed Rs.100/- require registration and Ex.B.1 is hit by Section 17 of the Registration Act, 1908, and accordingly, dismissed the revision. Aggrieved by the same, the defendants carried the matter to the Supreme Court in Special Leave to Appeal No.4182 of 2007. Since the document was unstamped, defendants had made good by paying required stamp duty with penalty. In the above circumstances, the Apex Court as follows:- “The learned counsel for the petitioner states that as the petitioner has made good the stamp duty on Ex.B.1, the trial Court would be asked to reconsider the validity of the document and its effect on the pending litigation. The petitioner further prays for permission to withdraw the SLP to raise the aforesaid plea before the trial Court. Accordingly, the special leave petition is dismissed as withdrawn. Liberty is however given to the respondents to raise all objections before the trial Court.” 5. Thus, the matter again came up before the learned Senior Civil Judge, Madanapalle, and the learned Senior Civil Judge, Madanapalle, observed that since the necessary stamp duty has been paid and the document requires only registration and since the defendants wanted to rely on Ex.B.1 only for the purpose of proving the possession, the documents can be received for collateral purpose only to the extent of proving possession. Aggrieved by the same, the plaintiffs have filed this revision. 6. Sri N. Pramod, learned counsel for the petitioners, submits that the document is a relinquishment deed and when the recitals of the document clearly go to show that respondents 1 and 2 wanted to mark the document to prove that the husband of the first petitioner had relinquished his rights in favour of respondents 1 and 2, the said document becomes inadmissible under Section 17(2) of the Registration Act, 1908. It is also his submission that admittedly, respondents 1 and 2 have been possession of the suit schedule property and when their possession is admitted, the question of using the document for collateral purpose does not arise. It is also submitted that admittedly, G.Venkatamma – Mother of G.Krishna Murthy and respondents 1 and 2 died in the year 1974 and in all probabilities, said G.Krishna Murthy could not have executed the relinquishment deed on the property owned by his mother during her life time and could not have executed any relinquishment deed in the year 1967. It is also his submission that a reading of the document gives an impression that the document was executed after the year 1974. It is also his submission that when the respondents had taken a specific plea that G.Krishna Murthy relinquished his right over his share of suit schedule property, the document becomes inadmissible since the main purpose of marking the document is to prove the relinquishment. It is also his submission that in this case, no collateral purpose arise which dehors the very purpose of the document for which it was executed. In support of his contentions, learned counsel relied upon the judgments in case between Avinash Kumar Chauhan Vs. Vijay Krishna Mishra[1], T.Arthi Vs. Anand Reddy and others[2], Surajmal Vs. Motiram and others[3], Ranga Reddy Vs. Sadhu Padamma[4], and Telugu Krishna Mohan and another Vs. Smt. Boggula Padmavathi and others[5] and K.B.Saha and Sons Pvt. Ltd., Vs. Development Consultant Ltd.[6] 7. Per contra, Sri T. Sharath, learned counsel for the respondents submitted that the admissibility of the documents was objected on the ground that it was unstamped and not registered. Admittedly, the respondents have made good the first objection of not properly stamping Ex.B.1 by paying the stamp duty and penalty. Therefore, now the petitioner cannot object the admissibility of the documents under the provisions of the Indian Stamp Act. It is further submitted that even if a document is not registered, the same can be looked into for collateral purpose. In support of his contentions, learned counsel had relied upon the judgments in cases b e tw e e n Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior[7], Burra Yadagiri and another Vs. Razia Begum and others[8], Jumma Masjid Mercara Vs. Kodimaniandra Devaih[9], Vangala Laxmamma Vs. Pasham Narsi Reddy and others[10] and Kale and others Vs. Deputy Director of Consolidation and others[11]. 8. I have considered the above rival contentions. The only point that arises for consideration in this revision is whether Ex.B.1 – Relinquishment Deed dated 10.08.1967 can be received and marked for collateral purpose in the facts and circumstances of the case. 9. Section 35 of the Indian Stamp Act, 1899, reads as follows:- 35. Instruments not duly stamped inadmissible in evidence, etc., No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Provided that – (a) Any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times that amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion. (b) Where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; 10. In the instant case, since the required stamp duty along with penalty has been paid, the objection raised by the learned counsel for the petitioner that the document cannot be admitted for any purpose, as mentioned in Section 35 of the Indian Stamp Act, needs no consideration. 11. One of the main grounds urged by the learned counsel for the first respondent is that on earlier occasion, when the petitioners wanted to mark the documents, it was refused by the learned Senior Civil Judge, Madanapalle, by order dated 27.04.2006 and when they carried the matter in revision before this Court in C.R.P.No.4932 of 2006, this Court by order dated 11.12.2006, dismissed the revision holding that the document is hit by Section 17 of the Registration Act, 1908. His main submission is that though the first respondent carried the matter to the Supreme Court and subsequently withdrawn the same, the earlier order of this Court became final and, therefore, the first respondent ought not to have again insisted to mark the said document. It is true that on earlier occasion, the learned Senior Civil Judge, Madanapalle, refused to mark the unregistered document and the order passed by the learned Senior Civil Judge was confirmed by this Court. However, the fact remains that the first respondent herein carried the matter to the Supreme Court and when the matter was pending before the Apex Court, the first respondent has made good the stamp duty on Ex.B.1. Learned counsel for the first respondent had categorically stated before the Supreme Court that the trial Court would be asked to reconsider the validity of the document and its effect on the pending litigation and sought permission to withdraw the Special Leave to Appeal (Civil) to raise the aforesaid plea before the trial Court. Accordingly, the Apex Court observed as follows:- “The learned counsel for the petitioner states that as the petitioner has made good the stamp duty on Ex.B.1, the trial Court would be asked to reconsider the validity of the document and its effect on the pending litigation. The petitioner further prays for permission to withdraw the SLP to raise the aforesaid plea before the trial Court. Accordingly, the special leave petition is dismissed as withdrawn. Liberty is however given to the respondents to raise all objections before the trial Court.” 12. A reading of the order of the Apex Court makes it clear that the Apex Court has permitted the first respondent to request the trial Court to reconsider the validity of the document. In view of the same, it is clear that the learned Senior Civil Judge, Madanapalle, had reconsidered the said issue and passed the impugned order. In view of the implied permission accorded by the Apex Court, in my view, the earlier order of this Court will not come in the way of the first respondent in requesting the trial Court to reconsider the validity of the document. 13. Learned counsel for the petitioners has relied on the judgment in case between Sarguja Transport Service’s case (7 supra). In that case, the High court held that the writ petition was not maintainable as the earlier writ petition was dismissed without obtaining any leave to file a fresh petition and the Apex Court confirmed the order of the High Court. Whereas in the instant case, since the first respondent has taken permission of the Supreme Court to re-agitate the matter as stated supra, the decision has no applicability to the instant case. 14. The next submission of the learned counsel for the petitioners is that Ex.B.1 is inadmissible in evidence since the same was not properly stamped. It is also his submission that such document would be used for any purpose, whatsoever, in view of the prohibition under Section 35 of the Indian Stamp Act. In support of his contention, learned counsel had relied upon Avinash Kumar Chauhan’s case (1 supra). It is the submission of the learned counsel for the first respondent that since the stamp duty is made good, the plea of prohibition under Section 35 of the Indian Stamp Act is no more available to the petitioner. Learned counsel for the first respondent, relying on Burra Yadagiri’s case (8 supra) submitted that when a request for permission to pay the deficit stamp duty and penalty is made, the same cannot be rejected. It is true that in Avinash Kumar Chauhan’s case (1 supra), the Apex Court observed that Section 35 of the Indian Stamp Act provides that an instrument shall be inadmissible in evidence, if the same is not duly stamped for any purpose whatsoever. In that case, the plaintiff, in an anxiety to buy a protected tribal land under the M.P. land Revenue Code, 1959 (the Code), did not wait for the Collector’s permission in terms of Section 165(6) of the Code and paid the consideration amount of Rs.2.7 lakhs and took possession through an unregistered/insufficiently stamped sale agreement which was sought to be registered later. When the Collector’s permission was not granted, the appellant instituted a suit for recover of consideration money. The District Court, with a view to impound the insufficiently stamped sale agreement, directed the appellant/plaintiff to deposit the unpaid duty along with the penalty as per Section 35 of the Stamps Act, 1899. The High Court, exercising power under Article 227 of the Constitution of India, refused to interfere with the directions of the District Court. The Apex Court, therefore, held that Proviso ‘A’ to Section 35 of the Indian Stamps Act enables the Court to receive in such document in evidence on payment of deficit stamp duty with penalty. Thus, once the requirement to Proviso ‘A’ of Section 35 of the Indian Stamps Act is complied with, then the document can be received in evidence. In the instant case, since the first respondent has paid the deficit stamp duty and penalty, it is clear that the document can be received in evidence. The same view was taken by this Court in Burra Yadagiri’s case (8 supra, which his relied on by the first respondent. 15. The next submission of the learned counsel for the petitioners is that since Ex.B.1 requires registration, that cannot be received in evidence and in support of this contention, he ha relied on judgment in case between T.Arthi’s case (2 supra). In that case, the petitioner filed a suit against the respondents therein for the relief of partition and separate possession of the suit schedule property. The respondents therein pleaded that the petitioner executed a Relinquishment deed giving up her right. This court, after going through the recitals of the documents, observed that there is no controversy that the recitals of the document clearly indicate that the petitioner executed the deed of Relinquishment on receiving consideration and therefore, the transaction was compulsorily registerable and since the deed was not registered, the document was inadmissible in evidence and that it is different thing that it can be relied upon for collateral purpose. Therefore, the above referred decision is not much helpful to the petitioners, since it was observed that the document could be received for collateral purpose. 16. Learned counsel for the petitioners has also relied upon Surajmal’s case (3 supra). The facts of that case reveal that it is also a case of partition in which the first defendant therein is said to have relinquished his interest in the joint family properties. This Court, holding that there was a consideration to the transaction and the alleged relinquishment deed was executed only after taking consideration and in view of the same, the transaction amounts to conveyance and required registration. No doubt, when the recitals of a document go to show that is a clear case of relinquishment, the same amounts to conveyance attracting Section 17 of the Registration Act, but in the instant case, what is to be seen is whether the document can be received for collateral purpose. 17. Learned counsel for the petitioners has also relied upon Ranga Reddy’s case (4 supra). In that case, a suit for partition and separate possession was filed and one of the defendant contended that certain land was gifted to him by the plaintiff and that he has been in possession of the said lands since then. The petitioner wanted to mark a document which was impugned therein for not paying proper stamp duty. However, it was held that prohibition under Section 49(c) of the Registration Act does not apply to an unregistered document affecting immovable property to receive as evidence of any collateral transaction. 18. Learned counsel has also relied upon Telugu Krishna Mohan’s case (5 supra), wherein it was held that where the recitals of the document go to show that it is a deed of relinquishment, the same is inadmissible in evidence for want of registration under Section 17 of the Registration Act, particularly as much as where the purpose for which the document is being relied is a principal purpose and for not any collateral purpose. Thus, where the purpose for which a document is being relied upon is to show relinquishment deed, the document cannot be admitted in evidence but where the purpose for which a document is being relied is for any collateral purpose, the document can be admitted in evidence. 19. Learned counsel for the petitioners has also relied upon K.B.Saha and sons Pvt. Ltd.,’s case (6 supra) in which the Apex Court dealt with the meaning of the term collateral purpose and observed as follows:- ….From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :- 1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating etc., any right, title or interest in immoveable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 20. Coming to the facts of the case on hand, learned counsel for the respondent submitted that the husband of the first respondent had no right in the property of their mother on the date of execution of the document and it cannot be said that he made any representation that he had a present interest therein whereas he had in fact only spes successionis and, therefore, the transferee is not entitled to the benefit of Section 43 of the Transfer of Property Act. It is also submitted that Section 6(a) of the Transfer of Property Act forbid transfer of spes successionis contracts and such transfers would be void under Section 23 of the Indian Contract Act and could not be enforceable. The Apex Court, in Jumma Masjid Mercara’s case (9 supra) held as follows:- “when a person transfers property representing that he has a present interest therein, whereas, he has in fact, only a spes successionis, the transferee is entitled to the benefit of Section 43 if he has taken the transfer on the faith of that representation and for consideration.” 21. Learned counsel for the first respondent has also argued that the recitals of Ex.B.1 does not show that it is a record of any past transaction between the parties or any record of family arrangement between the parties, but it is a document to show that the rights have been relinquished under the document in presenting and, therefore, it cannot be treated as recording the past transaction. In support of his contention, learned counsel had relied upon Vangala Laxmamma’s case (10 supra). 22. Learned counsel for the petitioners submitted that admittedly, the husband of the first respondent and the petitioners 1 and 2 are real brothers and they had partitioned their joint family properties but however, some properties given by their father were in possession of their mother and those properties were not partitioned earlier. It is also his submission that as the first respondent was not looking after her mother-in-law, i.e, the mother of her husband and petitioners 1 and 2 and as that old lady was being looked after by the petitioners 1 and 2, the husband of the first respondent, as per their family arrangement and to keep peace in the family and as per their earlier understanding, relinquished his rights, i.e., the share which he would have got after the division of the properties of their mother. His main submission is that once a document reveals a past transaction of earlier family arrangement, such document becomes admissible in evidence, though it is not registered. Learned counsel for the first respondent, relying on Kale and others’s case (11 supra), submitted that once a family arrangement is reduced into writing, registration would be necessary. Thus, it is settled law that an unregistered relinquishment deed or any deed by which the property has been conveyed to another, would be inadmissible in evidence except using it for collateral purpose as provided in Proviso to Section 49 of the Registration Act. 23. I am not inclined to decide the issue whether the husband of the first respondent made any representation that he had a present interest in the property, though he had only a spes successionis and whether the petitioners are entitled to the benefit of Section 43 of the Transfer of Property Act or not in this revision, because it is an issue to be considered by the trial Court. The scope of this revision is whether Ex.B.1 – Relinquishment Deed dated 10.08.1967 can be received for collateral purpose or not. What is collateral purpose has been explained by the Apex Court in the above referred decisions. 24. In the instant case, the specific case of the petitioners is that Late Ramaiah was the father of the petitioners herein and G.Krishna Murthy – the husband of the first respondent herein. Late Ramaiah purchased some properties in the name of his wife – G. Venkatamma with a view that she may be able to sustain herself, if her sons neglect her. After the demise of Late Ramaiah, the properties left over by him were divided among the petitioners and Late Krishna Murthy. However, the properties given by Late Ramaiah to his wife G. Venkatamma were not divided and were being enjoyed by G. Venkatamma herself. The petitioners’ specific case is that during the life time of G. Venkatamma, the first respondent was not looking after G. Venkatamma and she was pressurizing G.Krishna Murthy to live separately from the petitioners and in the above circumstances, Late Krishna Murthy, with the advise of the elders, entered into a family arrangement and executed the Relinquishment Deed dated 10.08.1967, relinquishing his share in the properties of his mother in favour of the petitioners. Their specific case is that the first respondent is not in joint possession of the property from 10.08.1967. It is also his case that Late G.Krishna Murthy died in the year 1979 and their sister Padmavathamma, who had also a share in the property, relinquished her share and the children of Padmavathamma never claimed any right in the suit schedule properties.