Maneger Chinna Honnur Saheb v. Late M.Rahiman, aged

Order

This revision petition is filed by the petitioner / plaintiff under Article 227 of the Constitution of India challenging the order dismissing I.A.No.34 of 2023 in O.S.No.05 of 2013 on the file of the Court of Prl.Civil Judge (Senior Division), Ananthapuramu filed by the plaintiff under Order XIII, Rule 3 and Section 151 of C.P.C. to demark the document of photostat copy of an unregistered partition deed dated

11.10.1985, marked as Ex.B13.

2. The plaintiff filed suit initially only against the defendant No.1 for partition of the suit schedule property stating that the suit schedule landed property of Ac.3.65 cents in S.No.980 in Kanekal village, Ananthapuramu district was purchased in the names of the plaintiff and the defendant No.1 vide a registered sale deed dated 09.06.1975 when the plaintiff was a minor and that the defendant No.1 used to cultivate the land and give the share of the plaintiff, but as the defendant No.1 was not paying any rental amount and failed to give the share of the property to the plaintiff when he demanded for partition of the same.

3. The defendant No.1 filed a written statement admitting the case of the plaintiff that the suit schedule property was jointly purchased and both of them had half share each in it, but the same was divided into equal halves as per the recitals of the partition deed cum settlement agreement dated 11.10.1985 and that the entries in revenue records were mutated and pattadar pass books were issued, but suppressing the facts, the suit was filed. He also pleaded that the plaintiff and the defendant No.1 have brothers and five sisters and the suit is bad for their non-joinder. 4 BSB, J C.R.P.No.2730 of 2025

4. Later, the defendant No.2, who is one of the brothers of the parties to the suit, was impleaded through I.A.No.399 of 2013. The defendant No.2 filed a written statement pleading collusion between the plaintiff and the defendant No.1 in filing the suit. He further pleaded that their father purchased a number of landed properties and got them registered not only in his name, but also in the names of his children. As there were some disputes in the family, the father of the parties orally partitioned the landed properties. Each sharer has been enjoying their respective share of land within specific boundaries. Evidencing the oral partition on 11.10.1985, a family settlement deed was executed with the consent of all his sons. The father and all his sons signed the settlement deed dated 11.10.1985. As per the settlement, the suit schedule

property fell to the share of the defendants Nos.1 and 2. The northern portion fell to the share of the defendant No.2 and the southern portion fell to the share of the defendant No.1. Both the defendants submitted an application to the gram panchayat for approval of lay out of the suit schedule property into plots. The gram panchayat approved the lay out bearing No.56 dated 19.07.1997. Plot Nos.1 to 44 on the southern side of the suit schedule property fell to the share of the defendant No.1. Northern side plot Nos.1 to 40 and plot No.9A fell to the share of the defendant No.2. The defendant No.2 sold 15 number of the plots to third parties in the year 1999 under various registered sale deeds and gifted some of the plots to his daughters, namely Dislshad, Hazarabi and Parvin. The names of the purchasers are mentioned. Some of the purchasers (whose names are mentioned) constructed houses in the sites purchased by them. They obtained electricity connections from A.P.C.P.D.C.L. authorities. The plaintiff knows all these facts. The suit is bad for non-joinder of necessary parties and liable to be dismissed. The plaintiff filed the suit taking undue advantage of the sale deed dated 5 BSB, J C.R.P.No.2730 of 2025

09.06.1975. The suit schedule property as described in the plaint does not exist. The suit is not maintainable and liable to be dismissed.

5. Thereafter, in response to the written statement of the defendant No.2, the defendant No.1 filed an additional written statement denying the case pleaded by the defendant No.2 in his written statement with regard to allotment of the suit schedule property to the defendants and also the lay out obtained and the sales. It is further pleaded that the defendant No.2 ought to have taken steps to implead all the parties named by him in his written statement and as he had not taken such steps, the pleadings of the defendant No.2 shall be rejected and that the averments in the written statement are false, baseless and cooked up to blackmail the defendant No.1.

6. During course of the trial, when the defendant No.1 / D.W.1 filed his affidavit in chief-examination showing the partition cum settlement deed dated 11.10.1985 as the list document No.1 to be marked as Ex.B1, along with the other documents at serial Nos.2 to 18, the said partition cum settlement dated 11.10.1985 was not received in evidence. Subsequently, when the defendant No.2 was examined as D.W.2, a copy of the partition cum settlement deed dated 11.10.1985, along with the original proceedings issued by the Tahsildar, Kanekal on the application of the defendant No.2 under the Right to Information Act, 2005, was marked as Ex.B13.

7. Aggrieved by the same, I.A.No.34 of 2023 noted above was filed by the plaintiff to demark Ex.B13 on the grounds that the document was marked in the absence of the counsel for the plaintiff; that the document, enclosed to the original proceedings issued by the Tahsildar, Kanekal marked as Ex.B.13, is a photostat copy, not produced from 6 BSB, J C.R.P.No.2730 of 2025 proper custody and cannot be a primary evidence or secondary evidence and the same cannot be marked as documentary evidence as Ex.B.13; that earlier the same document was not marked as objected at the time of evidence of D.W.1 due to its inadmissibility in evidence and that the defendant No.2 / D.W.2, having knowledge of the same, fraudulently got it marked.

8. The petition was opposed by filing the counter of the respondent No.2 / defendant No.2 denying the averments of the petition and further stating that this respondent filed a petition to receive the documents vide I.A.No.571 of 2022 on 27.09.2022 after serving copies of all the documents along with the petition to the counsel for the plaintiff and also the counsel for the defendant No.1 and the said petition was allowed on

09.11.2022 and thereafter, on 22.11.2022, the chief-examination affidavit of D.W.2 was filed after furnishing copy of the affidavit and later documents were marked as Exs.B.11 to B.41 as the counsels for the plaintiff and the defendant No.1 had not taken any objection for marking of any document and the case was adjourned for cross examination of D.W.2. It is further stated that Ex.B.13 was obtained under the Right to Information Act and admissible in evidence. It is also stated that the plaintiff himself requested the Tahsildar to mutate his name and to an extent of Ac.1.00 in S.No.977 which is not the suit schedule property, but fell to his share in the said partition, by enclosing the unregistered partition-cum-settlement deed dated 11.10.1985 and accordingly, the entries in the revenue records were mutated by the Tahsildar and pattadar pass book and title deed were issued and thus, the plaintiff himself used the unregistered partition deed and has no ground to seek demarking of the document without any valid ground and that the evidentiary value of the document already marked can be decided at the 7 BSB, J C.R.P.No.2730 of 2025 time of pronouncement of judgment. This respondent contended that the petitioner played fraud and filed the petition to drag on the proceedings and requested to dismiss the petition.

9. The respondent / defendant No.1 reported no counter.

10. After hearing the petitioner and the respondent No.2, the trial Court dismissed the petition holding that the document in question titled as ‘odambadika oppudala khararu’ is not a partition deed, but is an agreement for partition agreeing to get a partition deed executed and cannot be questioned, that too at a subsequent stage and further that the petitioner, being a party to the proceedings, is at liberty to challenge the genuineness of the public document i.e., the certified copy of a public document issued by Public Information Officer. It is also observed that the unregistered agreement of partition deed in the present case does not require registration and cannot be demarked as in the case of an unregistered agreement of sale if the agreement of sale is unregistered one.

11. Aggrieved by the order, this revision petition was filed.

12. The learned counsel for the revision petitioner submitted that the document in question is not an agreement, but a partition deed and requires registration and therefore, without deciding its admissibility in evidence, the same cannot be admitted in evidence. He further submitted that a photostat copy of a partition deed cannot be marked as secondary evidence as the original document requires registration and proper stamp duty, particularly when no step has been taken to cause production of its original. He further submitted that it is not a public document even if it is with the custody of Tahsildar and a certified copy of it cannot be issued by the Tahsildar unlike any other document, such 8 BSB, J C.R.P.No.2730 of 2025 as registers, etc., maintained in his office. He further submitted that the photostat copy of the partition deed said to be given by the Tahsildar is not a certified copy since it was not compared with its original. He further submitted that a photostat copy cannot be received in evidence even for collateral purpose as stamp duty can be collected only on an original document. That apart, he contended that the photostat copy of the partition deed was not directly marked as Ex.B.13, but showing it as annexure to the proceedings of Tahsildar under the R.T.I.Act, the document was brought in evidence in a back door method, since it was already objected when tendered through D.W.1 and the Court was not inclined to receive it in evidence in view of the objections raised by them regarding its admissibility in evidence. He further submitted that when a document is inadmissible in evidence due to statutory prohibition, it can be demarked at any stage and therefore, the observation of the trial Court that it cannot be raised at a subsequent stage is incorrect.

13. In support of his arguments, he placed reliance on the following decisions:- (i) A.P.Laly Vs. Gurram Rama Rao 1 , wherein it was held at paragraphs Nos.30 & 31 as follows: “30. Thus, in the absence of consideration of application of Rule 3 of Order 13 to the cases of improperly admitted documents, the arguments advanced on the basis of such decision is of no avail. I am of the opinion that the decisions of this Court in Syed Yousuf Ali Vs. Mohd. Yousuf [2016 (2) ALT 557] and Srinivasa Builders Vs. 1 2017 (5) ALT 753 9 BSB, J C.R.P.No.2730 of 2025 A. Janga Reddy (died) per L.Rs. [2016 (2) ALT 321] do not require any elaboration or clarification. It is also relevant to notice that a learned single Judge of this Court, who rendered the decision in Syed Yousuf Ali's case (supra), rendered another decision in S. Mohan Krishna Vs. V. Varalakshmamma [2017 (5) ALT 264] to the same effect. The Court has got right to de-exhibit a document when its attention was drawn as to the inadmissibility of the document, as it has got duty to decide the admissibility of a document and eschew irrelevant and inadmissible evidence. The Code of Civil Procedure deals with the procedure in dealing with the suits, whereas the provisions of the Indian Stamp Act deal with the provisions for collection of proper stamp duty on the documents. When a document which was not properly stamped was admitted in evidence and when the Court's attention was drawn, the objection of the party under Section 36 of the Act pales into insignificance and the duty of the Court comes to the forefront to decide with regard to admissibility of such a document. It is for the Court to decide whether a particular document is admissible or not. If it is inadmissible it can de-exhibit such a document. It is the decision of the Court, but not that of the objector. The role of the objector is only to bring it to the notice of the Court. Even assuming that a Court decides to admit a document in evidence, there is nothing in the Code of Civil Procedure prohibiting the Court from recalling such an order. 10 BSB, J C.R.P.No.2730 of 2025

31. In view of the above position, in the absence of any evidence as to the availability of a decision of the trial Court with regard to document in question as to its admission, the application as filed by the defendant is maintainable and it is open to the plaintiff to pay the stamp duty and penalty as per the Rules and make a request to admit the same in evidence and it is for the Court to admit the document and mark the same.” (ii) Sure Ranga Murali Krishna Reddy Vs. Sure Yerri Vara Prasada Reddy and others2, wherein it was held at paragraphs Nos.15 & 16 as follows: “15. In the facts & circumstances and in view of the precedential guidance, this Court is of the well considered view that the Court below was in error in marking the document, viz., CC of unregistered partition deed as exhibit B1 without application of mind and without first deciding the objection raised as ordained in the decision of the Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat and another [2001 (1) ALT (Crl.)(SC) 230] and in further refusing to accede to the request of the plaintiff to de-exhibit the document or exclude/eschew from evidence for deciding admissibility or otherwise after adverting to the aspects viz., whether its original was duly stamped/charged with duty and whether it can be admitted in evidence for collateral purpose in the light of the ratios in the 2 2018 (4) ALT 616 (S.B.) 11 BSB, J C.R.P.No.2730 of 2025 precedents adverted to supra. For the foregoing reasons, this Court finds that the order is unsustainable and is liable to be set aside.

16. In the result, the Civil Revision Petition is allowed and the order impugned is set aside. As a sequel, the interlocutory application in I.A. No. 1637 of 2017 is allowed and the certified copy of unregistered partition deed marked as exhibit B1 shall stand eschewed from evidence and the marking given to it shall stand cancelled. However, the trial Court shall after affording an opportunity of hearing to both sides, decide its admissibility after considering the relevant aspects as to its admissibility as per the settled law and procedure and then proceed further in the matter in accordance with law. No costs.” (iii) C.Sreedhara Raja Vs. S.Vittoba Rao 3, wherein it was held at paragraphs Nos.25 & 27 as follows: “25. From a reading of the above provision, the following would emerge: (1) The parties can file the documents at the initial stage; (2) Such documents shall be admitted into evidence as provided under Sub-rule (4) of Rule 13 of the Code of Civil Procedure; (3) An unstamped or insufficiently stamped document is not admissible in evidence per se as postulated under 3 AIR 2005 AP 322 12 BSB, J C.R.P.No.2730 of 2025 Section 35 of the Indian Stamp Act, subject to Section 36; (4) During the trial when actually the document is tendered to be marked as piece of evidence, objection can be raised either by the contesting party or by the Court as regards its admissibility on account of unstamped or insufficiently stamped and also can impound and eventually can levy the stamp duty along with penalty; (5) In the event of any application made by the party who tries to introduce a document into evidence for admission can file an application under Section 38(2) of the Stamp Act to send the document to the competent authority for impounding and levying the stamp duty along with the penalty; (6) As and when such an application is made, it is imperative for the Court, to send the document to the competent authority under the Stamp Act; (7) When once the document is admitted into evidence and marked as an exhibit the same becomes the property of the Court; (8) So long as the document was not tendered in evidence for admission and marked as an exhibit, such document shall be treated as the property of the party who files or places the said document on record; and (9) At any stage, the document can be returned by the Court on an application made by the party, who places the document on record, subject to certain conditions."

26. xxx xxx xxx 13 BSB, J C.R.P.No.2730 of 2025

27. However, it is to be borne in mind that merely because a document impounded by the Court, particularly the one, which is a xerox copy, even if impounded by the competent authority under the Stamp Act, need not necessarily be understood as legally got validated, for the purpose of admissibility of the same in evidence inasmuch as such document has to be tested on the touch stone of Sections 63 and 64 of the Indian Evidence Act.” (iv) Jupudi Kesava Rao Vs. Pulavarthi Venkata Subba Rao and others4 , wherein it was held at paragraphs Nos.13 & 14 as follows: “13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by 4 (1971) 1 SCC 545 14 BSB, J C.R.P.No.2730 of 2025 Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to 15 BSB, J C.R.P.No.2730 of 2025 be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.” (v) Akkam Laxmi Vs. Thosha Bhoomaiah and others5, wherein it was held at paragraph No.9 as follows: “9. A perusal of Section 35 shows that the said section is in two parts. The first limb pertains to the reception of the document in evidence when the document is not duly stamped. The second limb, however, pertains to acting upon the said document. The bar contained in Section 35 of the Act is an absolute bar and it is two fold - firstly it prohibits the reception of an instrument which has not been duly stamped and secondly it inhibits the authority which is expected to receive the same to act upon the same. Section 36 of the Act, however, reads that when an instrument has been admitted in evidence without taking any objection in accordance with Section 35, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. A combined reading of both the sections would show that what was not admissible under the mandatory provisions of Section 35 when admitted inadvertently in evidence without taking any objection in that regard, such admission shall not be called in question at any stage of the suit or proceeding subsequently. Therefore, what Section 36 speaks of, in my considered view, is in regard to the original document 5 2002 SCC OnLine AP 594 16 BSB, J C.R.P.No.2730 of 2025 itself. A combined reading of Sections 35 and 36 of the Act and the definition of 'instrument' as enjoined under Section 2(14) of the Act would leave no room for any doubt that what is required to be stamped is the original instrument itself and the Act has not envisaged a copy of the original for the purpose of Stamp Act. A copy of the document cannot be called as an instrument and, therefore, it is not required to be stamped.” (vi) Koyya Ganga Venkata Satya Bhaskara Rao and another Vs. Koyya Rama Krishnudu and others 6 , wherein it was held at paragraphs Nos.9 & 10 as follows: “9. The above and other recitals in the document, without doubt, make it manifest that under the very document the immovable properties are permanently partitioned once and for all into two shares (A and B) and one share each is allotted to the eligible sharer declaring that each sharer shall enjoy, the allotted share with absolute rights including the rights to enjoy, gift, sell, etcetera by paying the Government on the allotted share independently. It is also recited, as already noted, that the parties to the document shall not raise dispute that the shares are unequal and/or are not in accordance with good and bad qualities at any time in future.

10. Having thus considered the transaction embodied in the documents, this Court finds itself in agreement with the finding of the Court below that the document in 6 2019 SCC OnLine AP 20 17 BSB, J C.R.P.No.2730 of 2025 question is a deed of partition and not a memorandum of partition or a list of partition recording past partition and that, therefore, the document in question is required to be charged with duty and that as it is not charged with any duty it is inadmissible in evidence until required stamp duty and penalty are paid as per the provisions of the Indian Stamp Act.” In Tharammel Peethambaran and Ors. Vs. T. Ushakrishnan (vii) and Ors7, it was held at paragraphs Nos.20.3 and 21 to 23 as follows: “20.3. Secondary evidence is inadmissible until the non- production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.12 If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

21. Therefore, the introduction of secondary evidence is a two-step process, wherein, first, the party must establish the legal right to lead secondary evidence, and second, they must prove the contents of the documents through that evidence. The twin requirements are conjunctive. 7 Neutral Citation: 2026 INSC 134 = Civil Appeal No. 856 of 2026 (Arising out of SLP (C) No. 11868 of 2024), dated 06.02.2026 18 BSB, J C.R.P.No.2730 of 2025

22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It is axiomatic that secondary evidence is permissible only as an exception to the requirement of adducing primary evidence.

23. The case on hand falls within the meaning of mechanical copies. In law, the existence of Exh. B-2, in the absence of laying down a factual foundation and following procedure, ought to be ignored for the purpose of appreciating the 1st Defendant's claim on the power to alienate Plaint A-Schedule Property. It is apposite to refer to one of the views expressed by the First Appellate Court by examining the signature in Exh. B-2, and recording a finding against the Plaintiff. It is axiomatic and fairly established by the authorities18 of this Court that courts should not by itself compare disputed signatures without the assistance of any expert, when the signatures with which the disputed signatures compared, are themselves not the admitted signatures. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence 19 BSB, J C.R.P.No.2730 of 2025 of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the Plaintiff to the 1st Defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. A photocopy of a document is no evidence unless the same is proved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2 / photocopy is no evidence, and the incorrect reliance on no evidence, has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

14. Though the respondent No.1 appeared through counsel before this Court, he has not represented and submitted arguments. Moreover, he did not contest the interlocutory petition before the trial Court.

15. The learned senior counsel appearing for the respondent No.2 submitted that the trial Court rightly observed that the document is an agreement for partition but not partition deed and or at the most, it may be memo of past partition and does not require registration and that even if it is a deed of partition, it can be received in evidence for collateral purposes of proving division of status and nature of possession. It is his further argument that the document filed by the 20 BSB, J C.R.P.No.2730 of 2025 defendant No.2 is not mere photostat copy, but a copy of a public document issued under the R.T.I. Act and is squarely covered by Section 74 of the Evidence Act. He further submitted that the said document was furnished by the petitioner himself to the Tahsildar to get the entries in the revenue records mutated and issue of pattadar pass book etc., in respect of his share of property, which is other than the suit schedule property, but now he has taken a ‘U’ turn to admit the document.

16. The learned counsel placed reliance on the decisions in Roshan Singh and others Vs. Zile Singh and others8, Khaja Habeebuddin Vs. Md. Ibrahim & others9 and Mr. Katike Bheem Shankar Vs. Mrs. T.Laxmi @ Punyavathi & others10.

17. Before going further, it is pertinent to examine the nature of the document.

18. The document speaks that the immovable properties were divided among the parties four years before the date of the document in the presence of the village elders and the parties are separately living with their respective families, but their landed properties were kept joint and that the yield was being divided. The document further states that due to subsequent disputes among the parties due to joint cultivation, the landed properties were divided into five (5) parts in the presence of the village elders as shown in the document. Just because past tense verb was used in the document that joint land was divided before the elders,