Doraiswami Reddiar and Another vs Venkatakrishna Reddiar

Ismail, J.—In O. S. No. 4 of 1961 on the file of the Court of the Subordinate Judge at Chingleput, a suit for partition, a compromise decree

was passed between the parties on 21st January, 1963. Under the terms of the compromise, the respondent was to give up all his claims to the

property in suit, but to receive a sum of Rs, 70,000/-, from the appellants herein. The compromise decree itself stated that a sum of Rs. 25,000

had been paid to the respondent on the date of decree and the balance of Rs. 45,000 should be paid within one year''s time, that is, on or before

21st January. 1964, time being the essence of the compromise.

A further provision in this behalf was that the said sum of Rs. 45,000 or so much of it as remained unpaid by that time would thereafter carry

interest at six per cent per annum. This sum of Rs. 45,000 was payable by the appellants herein on or before 21st January, 1964. The amount was

actually deposited into Court only on 21st July, 1965. It is under these circumstances the respondent herein filed E. P. 79 of 1965 for recovery of

a sum of Rs, 4122-12 consisting of Rs. 4,050 being interest on Rs. 45,000 from 21st January, 1964, the date on which the amount should, have

been paid, and 21st July, 1965, the date on which the amount was actually deposited into Court, and Rs. 72-12 being execution charges. The

appellants herein resisted the claim, but the learned Subordinate Judge of Chingleput by his judgment and order dated 1st April, 1966, overruled

the contention of the appellants. It is against the judgment and order the appellants have filed the present appeal.

Mr. R. Sundaravaradan, learned Counsel for the appellants, put forward two contentions. The first contention is that the decree being a partition

decree, it does not became operative till it is stamped according to the provisions of the Stamp Act; such stamping having taken place only in

February 1965, the respondent was not entitled to claim interest for any period earlier to that date. The second contention is that in I. A. 33 of

1964, the appellants tendered an amount of Rs. 9000 towards the money payable by the appellants to the respondent and the respondent did not

accept the tender and therefore the appellants were entitled to counter interest on the said amount of Rs. 9,000/- from the date of the said I. A. I

shall deal with these two points in that order.

As far as the first point is concerned, learned Counsel specifically concedes that there is no specific provision in the compromise entered into

between the parties as to who should pay the Stamp Duty. However, learned Counsel wants me to imply that there was an agreement between the

parties according to which the parties were to bear the Stamp Duty in half and half. The further argument is that the respondent herein not having

performed his obligation of bearing half the Stamp Duty, it was not open to him to come to the Court and ask for recovery of interest.

As I pointed out already, the compromise decree not having provided for the payment of Stamp Duty by the respondent, it is not possible to hold

that the respondent has failed to perform his part of the obligation under the compromise decree and therefore he cannot claim interest. Before me

learned Counsel put forward the argument from a different angle. His contention is that a partition decree, until it is stamped, cannot be admitted in

evidence by any Court and therefore it cannot be acted upon and consequently the respondent cannot claim interest from any date anterior to the

date when the partition decree was stamped. In my opinion, this argument proceeds on a misapprehension.

There is no provision of law in the Stamp Act which compels parties to a document not to act upon or perform the obligations as between them

before having it stamped. The requirement of stamping and the prohibition of admitting an unstamped document as evidence will be operative only

in relation to proceedings before Courts or other officers. As between the parties themselves, that too parties to a compromise decree, it becomes

operative immediately and the rights and obligations between them spring forth in accordance with the terms of the decree itself.

In this case, admittedly the execution petition was filed by the respondent after the document was stamped. Therefore the document itself can be

admitted in evidence in the execution petition for the purpose of deciding the liability of the appellants to pay the interest. It is not the case of Mr.

Sundaravaradan that if a document cannot be admitted in evidence, the Court should ignore or close its eyes to whatever has happened pursuant

to the terms of the document prior to the stamping of the document. It may be, so far as the Court is concerned, it can look into the document as a

piece of evidence only when it is stamped. But once it has been stamped, it can look into the document for the purpose of finding out the rights and

obligations created in favour of and imposed on the parties with reference to the date on which those rights and obligations arise under the terms of

the document itself. Hence I reject this contention of the learned Counsel for the appellants.

The second contention is that the appellants tendered a sum of Rs. 9,000, but the same was refused by the respondent and therefore the

appellants are entitled to counter interest for the said amount. The learned Subordinate Judge in paragraph 8 of this judgment pointed out that no

certified copy of I. A. 33 of 1964 in which the said amount was said to have been tendered was produced before him and the circumstances under

which the said amount was not received are not known. But the learned Counsel states the Court should have called for the papers in the I. A.,

and should have decided the question itself.

However, the learned Counsel specifically admits that he did not ask the Court to call for the papers and did not lead any further evidence in

relation to the said tender or refusal on the part of the respondent. In these circumstances, I do not consider that there is any justification to

interfere with the order of the learned Subordinate Judge. Further, this second argument of the learned Counsel is in a sense self-destructive.

Admittedly I. A. No. 33 of 1964 was filed at a time when the compromise decree was not stamped. If the Court cannot look into and take note of

anything that has happened prior to the date of stamping, it is too much for the learned Counsel to call upon the Court to take note of his tender

prior to the date when the compromise decree was stamped.

Under these circumstances, in my opinion, there are no merits in this appeal and the same is dismissed with costs.