Judgment:
ORDER
Ratnam, J.
1. The legal representatives of the deceased first plaintiff and the second plaintiff in O.S. No. 598 of 1986, Additional District Munsifs Court, Tindivanam, have preferred this civil revision petition against the order passed by the Court below, holding that the partition deed dated 12.11.1953 is admissible in evidence for collateral purposes. In order to appreciate the circumstances giving rise to this question, it is necessary to very briefly refer to the facts. According to the case of the petitioners, one Vaithyalinga Mudaliar (fifth defendant in the suit) was the owner of the A and B schedule properties in the suit. On 23.1.1984, a document of exchange was executed between Vaithylinga and another Palani (not a party to the suit) in and by which the A schedule properties were to be taken by Palani and the properties belonging to Palani were to be taken by the fifth defendant. Palani is stated to have sold on 17.12.1985 the properties obtained by him under the deed of exchange viz. A schedule properties in the suit to the first plaintiff in O.S. No. 598 of 1986, who died on 13.2.1989 and whose legal representatives arc the petitioners herein. Similarly, on 10.12.1984, Vaithylinga is stated to have sold the B schedule properties to the second plaintiff in the suit represented by the guardian, deceased first plaintiff, Alleging that defendants 1 to 4 in the suit attempted to interfere with the possession and enjoyment of A and B schedule properties by the petitioners on 15.9.1986, the petitioners instituted the suit O.S. No. 598 of 1986 praying for declaration of title to the A schedule properties in the plaintiffs and the B schedule properties in the second plaintiff and for a permanent injunction restraining the defendants from interfering with their possession and enjoyment. To that suit, Vaithylinga was implcaded as proforma fifth defendant. In the written statement filed by the fourth defendant, she put forward the plea that A and B schedule properties did not belong to Vaithylinga, fifth defendant in the suit. She also denied the exchange on 23.1.1984 between the fifth defendant and another Palani. According to her case, the properties were owned by one Rajarathinam, who died about 35 years ago and his wife was one Thayyalnayagi and they had three sons and a daughter, viz. Vaithylinga, Pooniah, Palani and Pattammal. The fourth defendant in the suit is the daughter of Pattammal and according to her, on 12.11.1953, a partition was entered into among Vaithylinga, Pooniah and Palani and the suit properties were allotted for the maintenance of Tliayyalnayagi during her lifetime and were to be divided amongst the sons after her life time. Stating that despite the arrangement so made, Thayyalnayagi was being looked after by her daughter Pattammal and she was also in possession of the properties for more than the statutory period and that, on 10.12.1985, she executed the settlement deed in favour of her daughter (fourth defendant in the suit) which was also attested by Ponniah, the respondents disputed the title of the petitioners to the suit properties. In addition, it was also pleaded that the sale dated 17.12.1985 by Palani with reference to A schedule properties was a sham and nominal transaction and, therefore, the petitioners are not entitled to any relief in the suit.
2. It is necessary at this stage to refer to the interlocutory proceedings pending suit. In I.A. No. 1025 of 1986, the plaintiffs in O.S. No. 598 of 1986 prayed for a temporary injunction, restraining the respondents herein from interfering with the possession and enjoyment of the suit properties during the pendency of the suit. That application was resisted by the respondents on the ground that they were in possession of the suit properties and that no case was made out for granting an injunction as prayed for by the petitioners. During the course of the enquiry into that application, the respondents filed an unstamped and unregistered partition deed dated 12.11.1953 and its reception in evidence in the course of the injunction petition was objected to by the petitioners, when the respondents took the stand that it could be admitted in evidence for collateral purposes. However, the learned District Munsif had not given any clear or specific finding with reference to the admission of the document in evidence and that too for collateral purposes, but nevertheless dismissed the injunction application, which is also stated at the Bar to have been affirmed by the Appellate Court.
3. In the course of the trial of the suit, when the respondents again made an attempt to mark the unstamped and unregistered partition deed dated 12.11.1953 in evidence, in the course of cross-examination of P.W.2, the petitioner raised an objection regarding the admissibility of the document in evidence on the ground that the document was unstamped and unregistered. However, the Court below took the view that, as the document had already been admitted in evidence in I.A. No. 1025 of 1986 under Order 13 Rule 4 Code of Civil Procedure, section 36 of the Stamp Act would preclude the petitioners from raising any objection regarding its admissibility and that the document could be admitted in evidence for collateral purposes.
4. In challenging the correctness of the order so passed, learned counsel for the petitioners contended that the view taken by the Court below regarding the scope of the applicability of section 36 of the Stamp Act is incorrect. According to learned counsel, the Court on the earlier occasion, while dealing with I.A. No. 1025 of 1986, had not applied its mind to the question of admissibility of the document, apart from referring to the purpose of such admission, which, according to it, was collateral and, therefore, there was no question of the applicability of section 36 of the Stamp Act at all. In addition, it was also pointed out that the admission of documents in evidence, even if it had been done in the course of the interlocutory proceedings, would not preclude a party from raising an objection in the course of the trial of the suit, as interlocutory proceedings and the suit cannot be considered to be same proceedings. An objection was also raised that the document being unstamped and unregistered cannot be received in evidence at all, much less, to prove the factum of partition put forward by the respondents in the written statement.
5. On the other hand, learned counsel for the respondents pointed that the partition deed dated 12.11.1953 had already been admitted incidence under Order 13, Rule 4, Code of Civil Procedure, in the course of the interlocutory proceedings in I.A. No. 1025 of 1986 and under those circumstances, section 36 of the Stamp Act would be a bar and the Court below was, therefore, justified in declining to permit the petitioners to raise an objection regarding the admissibility of the document in evidence. It was also further submitted that the Court below had admitted the document in evidence only for collateral purposes and that, in any manner, cannot be objected to by the petitioners.
6. Before considering the submissions so made, it becomes necessary to ascertain whether, in the course of I.A. No. 1025 of 1986, the Court had applied its mind to the question of admissibility of the unstamped and unregistered partition deed dated 12.11.1953. Earlier, it had been noticed that, in I.A. No. 1025 of 1986, the petitioners had prayed for the relief of injunction pending disposal of the suit and in the course of those proceedings, the respondents had placed reliance upon the unstamped and unregistered partition deed to make out a case that the petitioners arc not entitled to the relief of injunction as prayed for. From paragraph 5 of the order passed in I.A. No. 1025 of 1986, it is seen that the Court had not considered the question of admissibility of the partition deed dated 12.11.1953, except to state that it was argued on behalf of the respondents that it could be admitted in evidence for collateral purposes. It is also further seen that no clear or specific finding had been rendered regarding the admissibility of the unstamped and unregistered partition deed and whether it could be admitted in evidence or not. The Court below had merely referred to this document and had proceeded to reject the application for injunction filed by the petitioners. The manner in which, in the course of I.A. No. 1025 of 1986, the court below had dealt with the unstamped and unregistered document dated 12.11.1953 shows that the Court had not applied its mind at all to the question of admissibility of the document in evidence in the light of the objections raised by the petitioners. In view of that, the mere admission of such a document as per Order 13 Rule, 4, Code of Civil Procedure, cannot be put against the petitioners.
7. Even on the footing that the document had been admitted in evidence in the course of I. A. No. 1025 of 1986, the question would still remain whether the petitioners could not raise any objection regarding its admissibility in view of section 36 of the Indian Stamp Act. It would also be necessary to advert to the question whether to admission of a document at an interlocutory stage would preclude the parties from raising an objection in the course of the trial of the suit. Under section 36 of the Indian Stamp Act, where the instrument had been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument had not been duly stamped. The object of the section is clear, in that, it prevents only exclusion of what already is evidence, in the suit or proceedings. This, however, would not mean that if certain proceedings, like interlocutory proceedings in a suit, get terminated and the other proceedings like the trial commenced, where the document could not be regarded as being in evidence, section 36 of the Indian Stamp Art can still have application, though it may be that the interlocutory proceedings had arisen in the same suit. In other words, if the instrument had been admitted in evidence in a suit or proceeding, such admission cannot be called in question at any stage of the same suit or proceeding, on the ground that the instrument had not been duly stamped. In this case, as already stated, the Court on the earlier occasion had not applied its mind at all to the question of admissibility in evidence of the unstamped and unregistered partition deed dated 12.11.1953 and even though the document purports to have been admitted under Order 13, Rule 4, Code of Civil Procedure, such admission is of no consequence whatever. Even on the footing that it had been admitted in the course of the interlocutory proceedings, such admission cannot bar the petitioners from raising an objection based on want of stamp and registration in the course of the trial of the suit. It would be useful in this connection to refer to Solamalai Muadaliar v. Vadamalai Muthiran, 23 M.L.J. 273. An ex parte decree was passed in a suit on a promissory note and at the ex parte trial, the note was admitted in evidence and subsequently, the ex parte decree was set aside. Thereafter, the promissory note was attempted to be marked in evidence, when an objection based on section 36 of the Indian Stamp Act was raised on the ground that it had already been admitted in evidence in the course of the ex parte trial proceedings. That objection was not accepted by the trial Court. While dealing with the correctness of the view so taken, it was pointed out that section 36 of the Indian Stamp Act lays down a rule, the effect of which is to prevent only the exclusion of what already is in evidence in the proceedings, but, if certain proceedings terminated and other proceedings re-commenced, where the document could not be regarded as being in evidence already, the section has, then, no application. It was also pointed out that technically, the suit is regarded as the same, though the ex parte decree may be set aside, but, in substance, the proceedings are different, when they re-commence on the setting aside of the ex parte decree. The principle of this decision has been approved and applied by Jagan Mohan Reddy, J. in Munipalli Rajeswara Rao v. Sela Veerayya (Second Appeal No. 871 of 1958, Judgment dated 1.2.1962 -Andhra Pradesh) and Mohd. Jamal Saheb v. Munwar Begum, : AIR1964AP188 . To similar effect is the decision in N.Kannu v. Travancore Forward Bank, AIR 1957 Trav. Co. 272, where the question arose whether the marking of a document in the course of interlocutory proceedings, could be regarded as admission of the document in evidence in the suit. Referring to section 36 of the Indian Stamp Act and Order 13, Rules 3 and 4, Code of Civil Procedure, the Court pointed out that the Presiding Judge must apply his mind to the admissibility of the document and merely marking the documents for reference for purposes of interlocutory application, would not be admission of documents in evidence. The Court also pointed out that the failure of the defendant to object to the marking of the documents in connection with the application for attachment before judgment, cannot preclude him from pressing his objection in the suit as to the admissibility of those documents in evidence. In view of the aforesaid principles, it is difficult to read Section 36 of the Indian Stamp Act as precluding the petitioners from putting forward the objection regarding the admissibility of the partition deed dated 12.11.1953 in evidence. It is common knowledge that proceedings in a suit and interlocutory proceedings in a suit are not the same, though the latter may arise only in the course of the suit. Section 36 of the Indian Stamp Act is intended only to prevent a person from raising any objection to the admissibility of evidence is a suit or interlocutory proceeding, if it had been admitted in the suit or proceeding, as a later stage of the suit or proceeding, as the case may be. That provision cannot be applied, read or understood as laying down that admission of a document in the course of interlocutory proceedings, is also admission of the document in the course of the suit. The Court below was, therefore, not right in applying the provision in section 36 of the Stamp Act to the instant case.
8. That leaves for consideration the objection raised by the petitioners regarding the non-stamping and non-registration of the partition deed dated 12.11.1953. Considering the defence that had been raised by the defendants in the written statement, it is obvious that they went to establish a case of partition amongst Vaithylinga, Ponniah and Palani and the allotment of properties to Thayyalnayagi thereunder, which were enjoyed by her daughter Pattammal and later settled by her on the fourth defendant in the suit. In other worder, for establishing the allotment of properties to Thayyalnayagi, the respondents have necessarily to make out the partition dated 12.11.1953 and this cannot be considered as a collateral purpose. On the contrary, the main purpose of marking the document dated 12.11.1953 in evidence is only with a view to establish the partition thereunder and the allotment of properties to Thayyalnayagi, on behalf of whom Pattammal is stated to have enjoyed the same and subsequently settled the properties on her daughter. It is not in dispute that the document is unstamped and unregistered and the purpose of marking the document in evidence, as stated earlier, is only to establish the allotment of properties to Thayyalnayagi and that cannot be done, unless the partition is made out. Under those circumstances, the Court below fell into an error in holding that the document could be received in evidence for collateral purpose, overlooking that the document was attempted to be put in only to establish the partition as put forward in the written statement and nothing else. It is not in dispute that even the court below had found in paragraph 2 of its order that from the terms of the document, it was one of partition and in that the Court below was right. In that event, as pointed out by the Supreme Court in Roshan Singh v. Zile Singh AIR 1988 S.C. 881, when the document purports by itself to effect a division and embodies all the terms of the bargain, it will be necessary to register it and if it is not registered, section 49 of the Registration Act will prevent its being admitted in evidence, and evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872.
9. Under those circumstances, there is no question of the document being admitted in evidence for the so-called collateral purpose, as done by the Court below. Consequently, the civil revision petition is allowed and the order of the Court below is set aside. There will be no order as to costs.