Ramesh Patil & Ors. vs Gangubai Wasnik & Ors.

Heard Mr. S.P. Kshirsagar, learned Advocate for the appellants and Mr. C.S. Kaptan, learned Senior Advocate assisted by Mr. S.D. Ingole, learned Advocate for the respondents.

The instant appeal from order has been preferred by the appellants, challenging the judgment and order dated 05.03.2025, passed by learned District Judge-10, Nagpur (for short, “appellate court”), in Regular Civil Appeal No.451 of 2018, wherein the Appellate Court has partly allowed the appeal and quashed and set-aside the judgment and decree dated 27.04.2018, passed by learned Civil Judge Junior Division, Kamptee (for short, “trial court”), in Regular Civil Suit No.283 of 2012 (Old RCS No.808 of 2008).

The appellant viz. Ramesh S/o. Sitaram Patil (now dead) is the original plaintiff, who instituted a suit bearing R.C.S. No.283 of 2012, for partition, separate possession and permanent injunction. According to the appellant/plaintiff, the plaintiff and defendant Ganpat Atmaram Wasnik (now dead), are joint owners of the suit property i.e. agricultural land bearing Survey No. Old 120/1-2, New No.34, situated at Village Temsana, Tq. Kamptee, P.H. No.32, admeasuring 7.17 H.R. The plaintiff is the nephew of defendant Ganpat. The suit property was originally belonging to grandmother of plaintiff viz. Anandibai Atmaram Wasnik. The said Anandibai died on 28.08.1977, leaving behind the defendant Ganpat (now deceased) and his mother viz. Tulsibai @ Savitribai Sitaram Patil. Therefore, the name of the defendant Ganpat and mother of the plaintiff was recorded in the record of rights, being the legal heirs. Subsequently, the mother of plaintiff i.e. Tulsibai also expired on 19.07.1957. As she died without making any will, the name of the plaintiff came to be mutated in the record of rights. Thus, the plaintiff as well as the defendant Ganpat are entitled of half share in the suit property in accordance with law.

The appellant/plaintiff was in service and defendant Ganpat was looking after his interest in the suit property as a joint co-owner as there was no partition between them. After the plaintiff got retired in June 2006, he went to the native village to look after his share. However, he came to know that his name has been removed from the 7/12 extract on the basis of certain fraudulent documents executed by the defendant. Therefore, he approached to the revenue authority for obtaining 7/12 extract, wherein he found that his name has been removed on the basis of some fraudulent documents. Therefore, he moved an application to revenue authority by pointing out the said fact. The plaintiff also got to know that the defendant has sold out his half share of 9 acres out of the suit property and now he is trying to sell out remaining 9 acres land to which the plaintiff has right in law. Therefore, the plaintiff has instituted a suit claiming thereby relief of partition and separate possession to his share in the suit property. The plaintiff also prayed for grant of permanent injunction against the defendant as according to him, the defendant is trying to create third party interest in the suit property.

The trial court vide its judgment dated 27.04.2018, decreed the suit with cost and declared that that plaintiff and defendant Ganpat has half share each in the suit land. It is further ordered that since defendant Ganpat has already sold his share out of the suit land, therefore, said sold share shall devolve to the share of defendant Ganpat and as a result his legal heirs will not get any rights in the remaining land out of the suit land. The trial court, in its judgment and order, observed that the relinquishment deed dated 29.06.1982, from which the defendant is claiming that the plaintiff has relinquished his share in favour of the defendant, was not produced by either of the parties. But since the relinquishment deed is not produced on record by the plaintiff, the trial court answered the issue pertaining to whether the relinquishment deed was obtained from the plaintiff by the son of defendant by committing misrepresentation, as it does not survive.

Being aggrieved by the said judgment and order by the trial court, the respondents/defendants filed an appeal bearing R.C.A. No.451 of 2018, under Section 96 of the Code of Civil Procedure, 1908 (for short, “CPC”). The appellate court vide judgment and order dated 05.03.2025, allowed the appeal partly with costs, thereby setting aside the judgment and decree passed by the trial court. Further, the appellate court remanded the matter to the trial court with direction to frame additional issue on limitation. During the pendency of said appeal, the defendants preferred an application at Exhibit 44 under Order 41 Rule 27 of CPC, for production of original relinquishment deed dated 29.06.1982 and for grant of permission to adduce additional evidence. The said application at Exhibit 44 came to be allowed subject to costs of Rs.5000/-, payable to the respondent. It is further ordered that the appellant (respondents herein) are permitted to impound the said unregistered relinquishment deed by paying requisite stamp duty as per law. Further the parties were permitted to adduce additional evidence.

Being aggrieved by the said judgment and order dated 05.03.2025 of the appellate court, the appellant/plaintiff approached this Court.

Mr. Kshirsagar, learned Advocate for the appellant/plaintiff, submitted that the appellate court committed grave mistake by allowing application at Exhibit 44 filed by the respondents/defendants. He submitted that the defect of not filing proper stamp duty on the documents can be rectified under Section 33 of the Indian Stamp Act. The matter can be remanded by the authority before whom such document has come for purpose of giving effect to. However, the execution of such document by the executant by making it registrable cannot be rectified in law. Hence, the impugned order is patently illegal. He submitted that both the parties to the said unregistered relinquishment deed are no more. Therefore, the registration of said document cannot be made between the parties as they were not aware of any such document. The appellant/plaintiff has tried to obtain the copy of said relinquishment deed by approaching the revenue authorities under the Right to Information Act. However, the copy of information supplied by the Village Talathi dated 19.07.2008 at Exhibit 51 is on record. But, it is stated that the relinquishment deed is not available in the record of Village Talathi Office. So also, no such effort has been made by the respondents/defendants to produce the said document during the pendency of the suit before the trial court.

Mr. Kshirsagar, learned Advocate for the appellant/plaintiff, further submitted that admittedly the relinquishment deed is unregistered document and therefore, the said unregistered relinquishment deed is not admissible even for the collateral purpose. He further submitted that as per Section 17 of the Indian Registration Act, 1908, documents shall be registered if such an instruments of gift of immovable property and other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Therefore, Section 17 of the Indian Registration Act, 1908, mandates that the registration of the document is compulsory. Section 49 of the Indian Registration Act, 1908, also provides that no document required by Section 17, to be registered shall affect any immovable property compromised therein or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. The registration of document gives notice to public that such document has been executed. He, therefore, vehemently submitted that the appellate court committed grave mistake, thereby allowing the appeal partly filed by the respondents/defendants and granting permission to produce original copy of relinquishment deed and thereby, permitting them to impound the said unregistered relinquishment deed by paying requisite stamp duty as per law. He, therefore, submitted that the impugned judgment and order needs to be quashed and set-aside.

In support of his submissions, Mr. Kshirsagar, learned Advocate for the appellant/plaintiff, placed reliance on judgment delivered by this Court in the case of Chandrabhaga Kolhe (Deceased) Thr. L.Rs. And Others Vs. Suryabhan S/o. Champatrao Shende (Deceased) Thr. L.Rs. And Others, reported in 2023(5) Mh.L.J. 399. In the said case, this Court has held that the relinquishment deed requires to be registered, otherwise it is not admissible in evidence and therefore, since the relinquishment deed is not registered one, it cannot be said to be admissible in evidence. He further relied on judgment delivered by the Hon’ble Supreme Court in the case of Yellapu Uma Maheshwari and Another Vs. Buddha Jagadheeshwararao and Others, reported in (2015) 16 SCC 787.

However, Mr. Kshirsagar, learned Advocate for the appellant/plaintiff submitted that as both the parties to the said document are no more, therefore, no reliance can be placed on the said unregistered document. He, therefore, submitted that no purpose would be served by asking the parties to prove the said document, who are unable to prove it.

Per contra, Mr. C.S. Kaptan, learned Senior Advocate assisted by Mr. S.D. Ingole, learned Advocate for the respondents/defendants strongly opposed the instant appeal. He submitted that though the relinquishment deed is unregistered, still as per Section 49 of the Indian Registration Act, 1908, the relinquishment deed can be used for collateral purpose as the respondents/defendants intend to use the said document to establish that the appellant/plaintiff has relinquished his rights in favour of the defendant Ganpat. He submitted that it is trite law that in case of insufficient stamp duty, the Court is obliged to impound the document and on payment of deficit stamp duty and penalty, such document could be admitted in evidence. He submitted that Section 49 permits the court to admit the relinquishment deed for collateral purpose as it is permitting the party to establish that the relinquishment deed is created or declared or assigned a right to immovable property. Therefore, oral evidence on the basis of such document could be adduced by the party. He, thus, submitted that the unstamped document and unregistered document, if required under law to be stamped and registered, can be admitted in evidence for collateral purpose.

After hearing learned Advocates for the rival parties and going through the record placed before this Court, it is found that the appellant/plaintiff had filed a suit for partition, separate possession and permanent injunction in respect of the suit property. The defendant Ganpat (now deceased) is the brother of mother of the appellant/plaintiff. The suit property was originally owned and possessed by one Anandibai Atmaram Wasnik. Defendant Ganpat and mother of plaintiff viz. Tulsibai @ Savitribai Sitram Patil, are the children of said Anandibai, who expired on 28.08.1977. Thus, they became absolute owner of the suit property. After the death of mother of plaintiff viz. Tulsibai on 19.07.1957, the name of the plaintiff came to be mutated in the record of rights of the suit property along with defendant Ganpat.

According to the appellant/plaintiff, as he was in service, defendant Ganpat was looking after his interest in the suit property which is undivided. He got retired in June 2006 and therefore, he approached to defendant Ganpat, who promised him to gave his share. However, later on, he got to know that his name has been deleted from the 7/12 extract on the basis of certain fraudulent documents. He realized that some years ago, son of the deceased Ganpat viz. Jagdish had come to him to obtain his signature on blank paper for the purpose of submitting an application to convert the land into non-agricultural purpose. Therefore, he immediately moved an application to revenue authority pointing out that the Talathi in collusion with defendant Ganpat have played mischief, thereby deleting his name from the revenue record on the basis of relinquishment deed. When he tried to obtain the copy of said relinquishment deed from the revenue office, it could not be traced. Therefore, he instituted a suit for partition and separate possession.

After the evidence, the trial court observed that the defendant Ganpat, who is trying to make claim that the appellant/plaintiff has relinquished his right in favour of the defendant, has not produced the said document before the court. Even otherwise, it was submitted that the said relinquishment deed is unregistered document. Therefore, the trial court proceed to dispose of the suit. As the said unregistered document is not admissible in law, accordingly, the trial court decreed the suit vide judgment and order dated 27.04.2018.

Being aggrieved by the said judgment and order, the respondents/defendants had filed Regular Civil Appeal No.451 of 2018, before the appellate court. During the pendency of the said appeal, the respondents filed an application dated 06.01.2024, under Order 41 Rule 27 of CPC, stating therein that they have found original relinquishment deed dated 29.06.1982, executed by the plaintiff in favour of defendant Ganpat, thereby the said plaintiff had relinquished his share in the suit property. The appellate court observed that the appellant (respondents herein) be given an opportunity to get the document impounded and trial court may consider to the extent of its permissibility by law. The appellate court considered that since the suit is decided in absence of original document on record, it would be just and proper to at least keep the original document on record before the trial court while deciding the suit in view of the peculiar circumstances of the litigation.

In the aforesaid background, the following issues arose for consideration.

ii) Whether the relinquishment deed in question is permissible in evidence for collateral purpose on payment of deficit stamp duty and penalty as per the provisions of the Indian Stamp Act, 1899.

In order to resolve the controversy, it is appropriate to extract the relevant provisions of Section 17(1)(b) and Section 49 of the Indian Registration Act, 1908, which read as under.

The Hon’ble Supreme Court in the case of K.B. Saha and Sons Private Limited Vs. Development Consultant Limited, reported in (2008) 8 SCC 564. The Hon’ble Supreme Court, in the said judgment, with regard to the admissibility of unregistered document has held in para. 34 as under.

In Yellapu Uma Maheshwari (Supra), the Hon’ble Supreme Court has observed in para. 16, as under:-

It is pertinent to mention here that the document i.e. relinquishment deed in question is a registerable document. However, it is neither registered nor stamped. It cannot be said that under Section 17 of the Indian Registration Act, 1908, a document can be allowed to be admitted in evidence for a collateral purpose or determines the nature or category of possession or there cannot be any dispute relating to the correctness of proposition. Since the appellate court permitted the respondents/defendants to impound the said relinquishment deed by paying requisite stamp duty as per law goes into infer that it was not written on proper stamp. Hence, the provisions of Section 35 of the Indian Stamp Act, 1899, comes into play. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose. Thus, as it is found that the relinquishment deed in question was neither properly stamped nor registered, therefore, such a document cannot be admitted in the evidence even for a collateral purpose.

The issue whether the unregistered relinquishment deed can be admitted in evidence had come before the High Court of Andhra Pradesh at Hyderabad in the case of Vangala Laxmamma Vs. Pasham Narsi Reddy and Others, [MANU/AP/0043/2010], wherein the Court has referred the decision in Telugu Kishna Mohan’s case, in which it has been held that an unregistered relinquishment deed is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act, 1908. Para.29 of the Telugu Kishna Mohan’s case needs to be noted and it is thus:-

The jurisdiction under Order XLI Rule 27 of CPC is exceptional in nature. Additional evidence cannot be permitted merely because a party has subsequently discovered a document which, by exercising due diligence, could have been produced before the trial court. The power is intended to advance the cause of justice where the appellate court itself requires such evidence to pronounce judgment or where the party establishes that despite due diligence such evidence could not be produced earlier. It is not meant to afford an opportunity to fill up omissions or lacunae left during the trial.

The appellate court failed to appreciate that even though the respondents/defendants, who are the legal heirs of original defendant Ganpat, were ready to impound the document by paying penalty as per law, however, in absence of availability of the original executant of the said document, their exercise to consider the said unregistered deed of relinquishment will not be fruitful as the same should be permissible to the extent which will be permissible by law. However, in the suit for partition and possession filed by the appellant/plaintiff, since the said relinquishment deed is admittedly not being a registered one, no purpose would be served by impounding the said document and permitting the parties to adduce evidence in that regard. Therefore, the order passed by the appellate court allowing the application filed the respondents/ defendants under Order 41 Rule 27 of CPC, for permission to produce additional document, is illegal and amount to allow the respondents/ defendants to fill up the lacuna in evidence. When the appellant/plaintiff was alive, he himself has made effort to procure the said document on the basis of which the respondents/defendants alleged to have impressed the revenue authority to delete the name of the appellant/plaintiff from the revenue record.

On being moved an RTI application by the original plaintiff (now deceased), he had got reply that no such document is available. Even during the trial also, the respondents/defendants did not make any effort to produce the said document on record. It is apt to mention here that when the respondents/defendants have preferred an appeal bearing R.C.A. No.451 of 2018, in the memo of appeal, in para. 11, they have stated that recently about a week or ten days before (filing of RCA), when appellant No.1 (respondent No.1 herein) was cleaning old iron box, she suddenly found and fortunately got the said original relinquishment deed dated 29.06.1982, having specific signatures of the present respondent (original plaintiff) and two witnesses. Immediately, thereafter, she has handed over the said relinquishment deed to their counsel and accordingly, they have stated that they are produced the copy of said relinquishment deed on record along with said appeal before the appellate court. However, the respondents/defendants had filed an application dated 06.01.2024, under Order 41 Rule 27 of CPC for grant of permission to produce the original relinquishment deed dated 29.06.1982 and for grant of permission to adduce additional evidence in the present appeal on 06.01.2024 i.e. after the period of six years. This conduct specifically goes to show that the respondents had tried to avoid to present the relinquishment deed upto last moment. Therefore, in order to fill up the lacunae in evidence, they have produced the same at the last moment before the impugned judgment and order came to be passed by the appellate court and remanded the matter to the trial court by granting permission to the parties to adduce additional evidence.

In this regard, para.19 of the trial court is being reproduced here.

In view of the aforesaid discussions, since the relinquishment deed dated 29.06.1982, is not properly stamped and is unregistered, it is not admissible in evidence. Therefore, this Court is of the opinion that the appellate court has committed grave mistake by allowing the application at Exhibit 44, thereby allowing the respondents/defendants for production of additional document and to adduce evidence in that regard and remanded the matter to the trial court. Hence, the impugned judgment and order dated 05.03.2025, passed by learned District Judge-10, Nagpur, in Regular Civil Appeal No.451 of 2018, being illegal, is quashed and set-aside. The application preferred by the respondents/defendants under Order 41 Rule 27 of CPC is rejected. The appeal is restored on the file of the appellate court to decide it afresh.