 And today itself, if we examine, it is admissibility of documents marking an exhibition. And Mr. Prabhakar, who has created his niche, the Madurai High Court. And therefore, once the topics come, which requires an interplay of various sections, we ask Mr. Prabhakar and he has been kind enough to accept our request. And before we proceed for the session, before that, the normal request which we keep on making, keep maintaining the social distance, keep on wearing the mask, just as we saw that the resource person was wearing. If he can wear in the office, it shows that what amount of precautions are required today to maintain good health. As they say, if wealth is lost, nothing is lost. But if health is lost, something is lost. But today is not the question where we always read and spoke about if correctors lost, everything is lost. But today, yes, with the knowledge we can always. Is it audible? Somebody has written that it's not audible. Mr. Prabhakar, it is audible? Yeah, yeah. Somebody had written. Yeah. So the question is only of the corrector building by the corrector building in the sense if we learn the legal nuances and professional skills, as we all on this platform always take sessions on social as a resource skills and professional skills, more particularly of the lawyers. Without taking much time, I would request Mr. Prabhakar to take things forward. And we will be sharing the notes where in the judgments would be referred to Mr. Prabhakar. It's being shared on the WhatsApp groups. As soon as Mr. Prabhakar starts, my team will share the notes on the, beyond us, you'll see WhatsApp group. You can connect with that. If you're not connected, we are also sharing the WhatsApp number where you can join us on the group and have the notes. Meanwhile, you can also like, subscribe and share and comment on the Beyond Law CLC group to have the insights of previous sessions, including of Mr. Yeah, Prabhakar. Over to you, Mr. Prabhakar. Thank you. Good evening everybody. Good evening, Mr. Prabhakar. These are testing times. I request everybody to wear masks and then be patient to take your vaccine. The shortage is not only a manufacturer of vaccine, but the shortage is due to the raw material. Be patient and try to take all the tests. Coming to the topic of this day, a disability of documents, marking and exhibition. I think it involves civil procedure, the evidence act, registration act and stamp act as well. We all know that the admissibility of the document in many a case has to be done before the trial court or otherwise we miss the bus. It is not a question of arguing before or canvassing before the appellate court, except in case of a lack of registration. Therefore, one should be vigilant before the trial court when the documents are marked and admitted in evidence. There is a whole lot of difference between introducing a document, marking the document and then proving the document. Introducing a document is the stage of the proceedings, either in the client or in the state or in the replication. The second is the reception of the documents or the admitting of the documents. The reception will take place probably before the trial has commenced because the civil procedure court has got its own system where it would say that the documents which have been filed before the issues have been frayed can be taken as evidence subsequently. But what has happened after the amendment in 1999 and subsequently a comprehensive amendment to that in 2002 of the civil procedure court? We find that the law has moved because we don't take any evidence in chief, instead we go for an affidavit. In the form of affidavit we do two things. One is to introduce in evidence the pleadings or a document which is not even available in the hands of the party which he wants to generously plead in the affidavit. Second is the document itself. Before 2002, as the party has to get under the marks to admit the document, the question of letting in the evidence without the document in possession or custody to be shown to the court doesn't arise at all. Therefore after 2002 we have to change ourselves between the last part of this session. First, what is the marking of the documents? What is the marking of the document? What is the civil procedure court? After the filing of the pleadings, we were not in a position to file the documents at the time of the pleading. We can always file an application seeking the leave of the court to file the documents. Then the court can allow such an application if there is a condemnation, if the delay has to be turned off. In 99.99 personal cases, the courts generously allow such an application if it is before the file. It is only the problem when the evidences are closed and the party wants to introduce a document which is not available in the team and we kept quiet. Suddenly if you accept the piece somewhere and want to file a document that the court has to take cockney sense of the fact of why the document has not been filed earlier and whether this document will have any impact on the case to decide the real controversy between the parties. The marking of the document has got two or three stages. One is simply by filing the appointment and along with the appointment you introduce documents and the court will receive the document and then it can mark the document. It can also be done by way of a pension. Normally it happens when some of the evidences are over before the court and one party wants to bring in a document which the other party did not oppose. Then he can say that instead of letting the party get into the box, the document can be taken in the court by marking the same. But we do remember that marking a document is different from proving a document. The fact of the matter is that merely if the court gives an endorsement of marking the document as found in the trial court either on the side of the plaintiff or the petitioner or the defendant or the respondent. Mere marking is not a proof but some document requires something else to be done to prove the same. Say for example, a customary disposition or a gift as contemplated under the Chancellor of Property Act or a mod game which requires two attesting witnesses and at least one of them is examined under Section 68 of the Act or in case of a customary disposition under Section 63 of the Constitution Act that document is not, does not amount to prove even if the piece is marked. But the point for conservation without going into Section 63, 65 and 60, late at the end of the Act. First I would like to bring to the notice of this forum that mere marking of a document is not, does not amount to prove. Straight away, 1972 for SCC, page 562, Saith Karajeh, Kim Chan versus Elemati Satyam, 1972 for SCC, page 562. Second decision is, Narbala Devi Gupta versus Virendra Kumar Jaiswal, 2003, 8 SCC, page 74. There are lots of people who show that the mere marking of a document, does not amount to prove. These two people show that the document is merely because being interviewed in the evidence, does not amount to prove. There are certain circumstances under Section 60, say for example Section 60 of the Registration Act which speaks about a prima facie presumption with regard to execution in case of a document with this register. Probably there is an exception in case of a bill or a settlement or a gift. But in case of a sale deed or a exchange, where it does not require any attestation under law, the mere registration itself presumption can be drawn that this document is true. And if any party wants to challenge the same, it is for you to bring in evidence to prove that it's not true. Therefore, mere marking of a document by itself does not amount to prove. But what happens in a trial court, in case of a bill, a settlement, a disposition or a gift or a mod game, if it is really challenging in the readings, normally the beneficiary will get into the box and try to introduce the same evidence. Say for example, the bill, the bill will speak from the grave attestator is not available. And therefore in all probability the beneficiary will come into play and try to introduce the same at the first instance. In some cases I have seen that the beneficiary, even though he is a party to the list or a sue, is not entitled to bring the document namely a bill. I am receiving message that the audibility is slightly poor. Probably the mic is slightly at the distance. Is it good, sir? I am audible, sir. Perfect. In case of a bill or a beneficiary gets into the box because the testator is not available. There were some cases where the courts have come to a conclusion that the beneficiary, even though he is a party to the list, cannot introduce such a bill by marking the same and it is for him to bring the attesting witness to mark the same. But there is a judgment of the division bench of the Meghra cycle where it would say that normally the plaintiff being one of the beneficiary or the defendant one of the beneficiary in respect of a bill will try to introduce the same by filing the same. What is wrong in filing a document and the court will not take into account unless the attesting witness comes into the box and to prove the same. Therefore, whether or not the beneficiary brings into existence the document and in case of a gift instead of if the executant is alive or the attesting witness has to come after him, it is possible for the party to bring in evidence or marking the document or admitting the document. Please do remember that by marking such a document, it will not amount to prove. However, the courts have held that if you allow the party to mark the document and keep quiet without making an objection with regard to the manner in which it has been tried to be proved, you cannot come before the appellate court and challenge the same that an attesting witness has not been called to prove the same. Therefore, be careful that at the time of admitting the document, whether it is a will, mortgage or any document for that matter, at the time of marking the document, if you want to challenge it, you mark your objection, record the objection before the court so that if the attesting witness doesn't come, please you can say before the court that it has not been proved in accordance with the law, namely in section 68, they have been challenged. Therefore, where marking is not enough, the objection has to be done at the time of marking so that the mode of proving a document has to be followed by the party who wants to introduce this. There are two things available. One is if a document is completely or totally inadmissible for want of registration. And a document which is admissible in Newton, subject to certain things which you have to follow under law, namely in case of a will or a settlement or a give, the document is perfectly admissible in law, but you have to examine an attesting witness. It is different from lack of registration. The law makes a clear distinction that if a document has not been registered in accordance with the law and if the document is allowed to be embarked, then the party who wants to challenge it can challenge it before the trial court or even before the appellate court due to want of registration of a document. But the want of registration of a document is different from mode of proving a document. In case of a will or a settlement or a mortgage as I have said that so long as the document is marked, it is not enough, but you must be vigilant at the time of introducing the same in evidence to object that unless the attesting witness come to the court, this document cannot be allowed to be termed as proved before a court. Therefore, in cases where the challenge is not on the basis of registration, but on the basis of a mode of proving a document, then be careful and vigilant that the document cannot be allowed to be proved unless it has been the procedure has contemplated and the law has been followed. This can also happen in case of a stamp duty. You know that a stamp duty has got a special place in the early part of this last century. And in fact, I would say even up to 70s and 80s of the last century, the courts have never cared about the stamp duty at all. It was more oriented towards justice delivery. Now the courts have now come around to view that the stamp duty which is due to the state has to be collected from the party. The courts have become vassal raja. Therefore, in cases of a stamp duty, the courts have become vigilant now. But there are two sections which we have to bear in mind section 35 and 36 of the Evidence Act. Section 35 would show that a document which is required to be stamped as contemplated under the stamp act has not been sufficiently stamped. Then it cannot be used for any purpose. Take the language under section 35 of the stamp act which says it cannot be used for any purpose. Therefore, if a stamp has not been affixed in the document in a proper manner or there was total lack of stamp duty or partially it has not been paid. Only are it not fully paid. Then the document cannot be used in evidence for any purpose meaning thereby even for collateral purpose such a document cannot be used. Secondly, there is one section 36 which is said if a document has been admitted in evidence ignoring section 35 or where objection has not been raised under section 35 and the document has been allowed to be admitted and marked as exhibit then that court has no jurisdiction whatsoever to revisit this same. Please do remember that once this change of marking a document or admitting a document is over the question of seeking stamp duty doesn't arise at all. There is a provision. What is that provision? Under section 61 of the stamp act when the matter went to the upload court, the upload court can feel that the stamp duty has not been paid properly. It can refer the matter to the register of stamps or the collector of the stamps to collect the money. But the court cannot issue the document from consideration for rendering justice. Therefore, there are two things under section 35 you must make an objection at the time of exhibiting the document or admitting the document. That the stamp duty has not been paid. If you allow the same or if you have missed the bus, then section 36 would come into play. You are afraid to see. You cannot challenge the document on the ground of lack of stamp duty. Three, under section 61 of the act, the upload court has got a right to refer the matter to the collector for collecting the appropriate stamp duty with the penalty. But the court cannot stop the proceeding. The court must rely upon the document as though it has been sufficiently stacked. What is that for any purpose? The any purpose that has been interpreted including a collateral purpose. Come to the first stamp duty objections. The first of the judgment is AAR 1961 Supreme Court, page 1655. Xavier Chen vs. Pukraj Surana. Three judges of the Honorable Supreme Court interpreted section 35 and 36. And the fact that section 36 is there in the statute could show that the stamp duty objection has to be raised at the earliest point of time before the document is exhibited or admitted in evidence. It's not the question of receiving the document. Please do remember that this stamp duty has to be collected, not at the time of filing the suit or not at the time of filing the document along with the written statement. Not at the time of framing the issues, but only when the document is admitted in evidence. Why tell you? The framers of the statute never thought that this should be a hindrance for giving justice. Therefore, a case which has been filed on the basis of a document which is insufficiently stacked may ultimately get settled between the parties before ever the party admits the document in evidence. In such cases, the court has no jurisdiction to ask for stamp duty. Therefore, if at all stamp duty has to be paid, it will come into play only at the time of admitting the document and not at the time of filing the suit or filing the statement, etc. Therefore, even if the court says that you have to pay the stamp duty at the time of filing the suit, kindly refuse. It can't be done. It can be done only at the time of admitting the document. You can always take into account that before admitting the document in account, there is a possibility of the matter being settled or being compromised during the parties. And in such a case, there is no need or necessity to pay the stamp duty. In many a state, we can say that the stamp duty, a maximum limit of 10 times is being collected, which is more penal in nature. The second judgment is here you have 1978 Supreme Court, page 1393, Ram Ratan v. Bajrang Law. Ram Ratan v. Bajrang Law, 1978 Supreme Court, page 1393. An interesting judgment where an objection was raised at the time of admitting the document. Then after almost the trial was over, the party was at the time of admitting the document and objection was raised. And the court instead of deciding the same then and then postponed the same. Saying that the objection with regard to the stamp duty will be decided at the time of disposing of the suit or the time of passing the judgment. This was an endorsement made by the file church. It was contented that once the document is admitted, the question of asking for stamp duty doesn't arise. And therefore the court should not pass an order at the time of pronouncing the judgment that one has to or to compel the party to pay the stamp duty with the penalty as a condition to make the judgment operative. This went up to the Honorable Supreme Court. The Honorable Supreme Court said that an objection has to be raised at the appropriate time, namely at the time of admitting the document. And if the objection should have been decided then and there itself. But in this case, the court has not exercised its judicial mind at the time of admitting the document. On the other hand, it has kept it in abeyance postponed till the pronouncing the judgment. Therefore section 35 speaks about judicial determination of the court fees or the stamp duty. If there was no judicial determination then even afterward the court can compel a party to pay the stamp duty with the penalty. But this is an exception, exception in the sense and objection was raised. And this objection was taken into account by the court and the court has kept the matter in abeyance till the time of pronouncing the judgment. As in the case where a party objects and in spite of the objection, the court did not pass an order and allowed the party to proceed with the trial. There was no endorsement that it has been kept in abeyance. Can the court revisit the issue thereafter? Section 35 says that it cannot be used for any purpose and it has to be admitted. Such an admission before the document is admitted one has to raise the objection. The example which I am giving you is a case where an objection was raised but the court did not determine the sale and left to the matter proceed with the trial. Quite unfortunate but even in such a cases I am of the view that once the document has been admitted without reserving then the question of the court revisiting the issue does not arise. Therefore, if a party wants to make an objection, the lawyer should be vigilant and request the court that the stamp duty issue has to be decided then and there itself. It's not the question of postponing beyond the trial to be pronounced at the time of judgments in the judgment. The third case is a 2007 Supreme Court page 637 equivalent 2006 11 ACC page 331, Shyamlal Kumar versus Shusrit Kumar. This is a case where the court went into the mode of proving a document that too with regard to the stamp duty. Discussion section 35 and 36 and came to conclusion that an objection has to be raised. Once an objection with regard to stamp duty is raised, it has to be decided then and there itself. The court should not postpone it. Section AR 1978 Supreme Court is an exception and the court should be vigilant in seeking the stamp duty at the appropriate time. Assuming for a moment, in a case where a document has been protected at the plate and in the statement it has been challenged on the ground of lack of stamp duty and registration, subsequently the document has been allowed to be marked without the stamp duty being paid. Can the court take into account these statements made or the pleadings in the written statement about the admissibility of the document as though it has been objected and can be decided at the time of trial? The point of consideration is it is not the question of postponing it by the party. It is a question of postponing the decision by the judge. Therefore, there should be an objection and this objection should be considered by the court and then to pass an order. If there is an objection and whether that objection has been considered and whether an order has been passed, there are three stages. In the case on hand with an hypothetical question, I said that there is a pleading with regard to the lack of stamp duty. But whether the court has exercised its mind or whether it has postponed, merely if the party has left it alone and then he cannot at the time of argument say that the document requires stamp duty, I have already raised it in the written statement. Raising such a plea in the written statement is not enough. You have to raise such an objection at the time of parking the document or admitting the document and compel the judge or force the judge to pass an order then and there itself. That is the only way of compelling a party to pay the stamp duty and you cannot keep quiet. Suddenly you woke up from the slumber and argue the matter stating that the case where I have taken such a stand in the written statement itself and therefore it should be allowed. That is not possible under law. The second point is collateral purpose. What is a collateral purpose under law? The collateral purpose as we see is, collateral purpose is contemplated under section 49 of the Registration Act. Section 49c speaks about three things and one of them has been deleted by Act 48 of 2000, namely Jai Harun Jaitri's amendment. With regard to section 53a of the Transfer of Property Act, where an agreement of sale can be used in the evidence as a shield. If you have done something in furtherance of the contract and you are in possession of the property, you can retain such a position. But section 49c was amended that in such cases, a document has to be registered otherwise 53a will not come into play. But at the time of considering such an amendment, it was found that an agreement of sale, an unregistered agreement of sale can be used as an evidence of a contract in a suit for specific performance that was left untouched. In fact, there was a discussion before passing Act 48 of 2000. And it was found that India predominantly and agriculture country people are living in rural areas. This should not be taken away as an amount to deprive the right hander an agreement which they do normally by sitting under a tree rather than coming to the register office. Therefore that was kept. And the second is under section 49c is the collateral purpose. What is a collateral purpose? Many of us, we do think that a collateral purpose is an ancillary purpose to the main purpose of the document. That is not correct. No purpose can be called as an ancillary purpose. Collateral purpose means a purpose which runs parallel to the terms of the contract. Therefore, don't think that a collateral purpose means that it is an ancillary purpose. Ancillary purpose is also a purpose in the document. Therefore, you cannot use the document unless it is registered. Collateral purpose means a purpose which runs parallel to the terms of the contract. Namely, because famously we take into account the character of position which runs parallel to the terms of the contract. But if your person wants to use a document for collateral purpose, a document which has not been registered, but do remember section 49c is only under the registration act. Therefore, if there is a lack of or insufficiently stamp to the document cannot be used for collateral purpose, unless the stamp duty is paid. That is the point number one. Point number two, the collateral purpose has to be seen from the angle that what is the intention of the party in introducing such a document. If we introduce an unregistered document to show that the character of the position, then does it require a decision by the court at the time of admitting the document? No, admitting the document the court can see only whether the document has been sufficiently stamped. The court cannot infer at that time of admitting the document what is the purpose for which it is to be used. Maybe after trial it can do that. There are judgments which say that the time of even admitting the documents, the court can find what is the purpose for which it is used. Say for example, in a suit for injunction, the party wants to introduce a document stating that I am in possession of the property to defeat the right of the plaintiff who has got a title. The main purpose for the suit for injunction is to find out whether the plaintiff is in possession of the property. Can that possession be a collateral purpose in such a case? Secondly, what is a collateral purpose? Whether it is collateral to the document or collateral to the relief. Collateral purpose to my mind is not in respect of the reliefs or form, but collateral to the document. It doesn't speak about section 49c, it doesn't speak about anything at all. It speaks about collateral purpose. Quite often we are forced to find out what is a collateral purpose and whether an objection can be raised at the time of marking the document or postpone it at the time of pronouncing the judgment. Whether it is at the time of admitting the document or at the time of pronouncing the judgment. One has to keep in mind that there are a lot of judgments which say that the collateral purpose is a purpose collateral to the document. But there are judgments where in a suit for injunction the court has come to a conclusion that an unregistered salee cannot be used for the purpose of showing that you are in possession of the property because the suit for injunction, the possession is main purpose and not a collateral purpose. Why the unfortunate? Without addressing the issue that this collateral purpose is contemplated is collateral to the document. That's why I said an ancillary purpose is not a collateral purpose. A purpose which runs parallely to the terms and conditions of the document alone can be called as a collateral purpose. Say for example, a party wants to sell the property and there is a sale deal. This is an unregistered sale deal. Possession, whether it is collateral to the document or it is collateral to the nature of the relief, a shortfall in the suit for injunction. My point of view is that in such a case is character of possession can be found out from an unregistered document whatever the nature of the suit. You give such a wide delivery namely that in a suit for injunctions, possession being a main relief or the main thing which has to be found out. It cannot be collateral is not the right approach. Collateral purpose is a purpose to the document and not to the relief shortfall. Assuming for a moment these types of judgments are correct then what will happen? A person who himself as an executive document wants to avoid the sale knowing full well that it is an unregistered document. He can mold the relief in such a way to avoid the teeth of law or to put the other man in a disadvantageous position. That is camouflaging your relief or by camouflaging these readings that should not be perfect. My view is that if it is for a collateral purpose, that purpose should run parallel to the main terms and conditions of the contract with the parties. The first judgment which I would like to refer even though it is not the oldest, it is one. This year 2008, Supreme Court Weekly page 4829. Equal in 2008-5 CTC page 260, Shaha and Sans versus development consultant. Shaha and Sans versus development consultant. That was a case of terms of tenancy. A party wants the court to believe from an unregistered document, an unregistered lease deal about the terms of the contract. The court has said that lease is a term of a contract, a condition of the contract. Therefore such a document cannot be permitted to be used to prove the tenancy. The second is an interesting judgment. Year 1980 Allahabad page 180. Ratan Lal versus Hari Shankar. That was a case where the party wants to introduce a document, an unregistered document to show that the right of the plaintiff got extinguished under the document. That was an unregistered document. A document which requires registration but has not been registered. But a party wants to use the document to show that the right of the plaintiff had already been extinguished under the contract. Whether it is a political progress. Now we have to take the aid of section 17 of the registration act. Which would say that any document which create a right, limit the right or extinguish the right of a party, it requires registration. Therefore the purpose for which the document can be executed and compulsorily registered are not only for creating a right, but also for extinguishing the right of a party. Therefore, the Allahabad I quote rightly pointed out that even in cases where you want to use the document to extinguish the right of a party, then it is not a collateral purpose, but it is a main purpose. Do remember in such a cases, you can even object at the time of marking the document or admitting the document. But the court has to, in such a cases, can't decide the matter in many a time. Therefore it will postpone the issue to be argued at the time of completing the trial because it has to take the evidence on record to find out. But in many a case, the document by itself would speak. There is no need for you to go ahead if you want to prevent the party from letting any evidence and unnecessarily burdening the court with the volume of evidence which the court cannot go into the time of pronouncing judgment. What is the use of allowing a party to admit the document, move along with the trial and take evidence and then add on some more witnesses to the document to prove the document and talk. Therefore, in all such a cases where one must object at the time of admitting the document that know this document, either create a right or limit the right or reduce your right or extinguish your right. In all such cases, the document requires registration. This is not a collateral purpose. It is a main purpose to the document. The second, the third judgment is Pajaj Auto Limited v. Bihari Law, year 1988 Supreme Court, page 1806. Pajaj Auto Limited v. Bihari Law, year 1988 Supreme Court, 1806. That was an interesting judgment. When an unregistered document was sought to be introduced to show that the person has sublet the property, the documents speak that the rights of the parties would show that there is a prohibition with regard to subletting the property. The party brings in evidence by way of an unregistered document stating that this document can be used to show that it is to sublet the property. The courts are sublesing. It is also a term of the contract. Therefore, if it is prohibited, it cannot be called as a collateral purpose. The document cannot be introduced as though it is for a collateral purpose. The terms of the contract are very many. It may be the years, it may be the consideration, it may be the property, it may be the intention of the party to lease out or sublet, etc. These are all terms of the contract. It is not a mere time or the period or even the consideration or between the parties that alone is the terms of the contract. Terms of the contract have very many facets in law. One of them is subletting the property. One of them is extinguishing the right or limiting your right under the contract. Then we come to some interesting judgment with regard to partitions. Normally, in this country, the partition among the members of the family takes place in many a time by way of an unregistered document. The court of late has taken the and slapped very many parties that these documents are inundated with evidence and therefore it cannot be liquid in two for any purpose. But there are three stages you know under the Hindu law how the partition takes place. Whether it is the Hindu law, even in a moment or another, it doesn't make any sense. Then what are the three stages? There is a severance of status, two, meets and bounds, three, delivery of possession. These are the three stages in a partition. If your partition of course requires, if the document says that there was a division in presenting, then the document requires registration. But if the document speaks about a past transaction that already a partition took place and we are recording a past transaction, then it does not require any registration because the partition is not a transfer under law. But once you say that under the document there was a division of the properties, then it must be registered, whether the document can be used and what purpose it can be used. For the first and third stage, namely severance of status and delivery of possession, no document is required. You are aware of the fact that under law, mere expression of an interest that I want to go away from the family, that expression can also be given by legal notice or even by a letter or even by a phone call provided with subject to proof that I want to go out, I want to divide. That is the date of severance of status to the parties. To show that there was a severance of status, no document is required and whether the document requires registration, then it does not require registration. Second, the third aspect namely delivery of possession. Delivery of possession is physical. Therefore, a party can show that already I have been put in possession of a specific extent of a property by letting in oral evidence, it does not require a document, it does not require registration. However, for the point number two of the three stages of the second stage, namely to prove there was a partition by meets and bounds, it requires a document and this document, if it says that it in presently the parties have divided the properties, it requires registration. Now, a party has got a partition list or a memorandum of lists or showing the division and it does not show you about the past transaction. A reading of it would show that what has been done under the document is to divide the properties on the day when the undocumented document was executed. The concept held that this document is admissible for two purposes. One is severance of status and another is delivery of possession. It cannot be used to show meets and bounds. If an unregistered document can be used for showing two purposes, do remember the document must be sufficiently stamped. If it is not stamped, it has to be stamped ten times. Therefore, registration is not curable but an unregistered partition can be used for two occasions for delivery of possession and then severance of status. And whether with these two points, without going into the question of meets and bounds division, whether the court can come into conclusion there was a partition took place, there are very many cases which say that it is possible. Because once there was a severance of status and delivery of possession, unmistakably it shows that the parties have divided their properties and these two coupled with the subsequent events, the court can appeal the partition and that's done. I'll give you two examples. 1978, 1 MLJ, page 248. Buraswamy versus Raja Kannan. Buraswamy versus Raja Kannan, 1978, 1 MLJ, page 248. And the second judgment is Kumaraswamy counter versus Aravagiri counter. Kumaraswamy counter versus Aravagiri counter, AIR 1974, Madras, page 239. AIR 1974, Madras, page 239. Both the cases after signing the Mullahs Hindu law came to the conclusion that in respect of unregistered documents, this can be taken into account to prove two things, namely severance of status and delivery of possession, the partition can also be held. The next judgment is a very interesting judgment. If at all anybody gets hold of the document, I think it is available in Manu Patra. You can download this judgment. 1970, ILR, Madras, page 636. Mohedin Abdul Qadir versus Mohamed Mohedin Umar. A fantastic judgment. It is a Bible on two aspects. About ouster and another is about collateral purpose. 155, remember 150 judgments have been referred to in that case. Two of the finest judges of the Madras High Court who delivered the judgment to unsung heroes. Fantastic judgment has got the grip of the entire subject on ouster with regard to the core sharers. And then about the collateral purpose where there was an unregistered release deal. An unregistered release deal has been used for the purpose of two things. One is there was a severance of status and the possession. Three, it was also used for another peculiar purpose from the date of that unregistered release deal. Possession becomes adverse and ouster can be inferred from the document. A judgment which any civil lawyer should hold doesn't require anything afterwards to see whether there is any change in law. There can't be any change in law. A judgment which has been quite often referred to but the problem is it runs into hundreds of pages. We may not be able to cite it and give the judgment to the court. But at least as a lawyer we can study the judgment and find out what is a collateral purpose. What is a collateral purpose? What is ancillary purpose? And then whether the purposes for which the document is used runs along with the term to the contract or it is a collateral purpose or not. Then next is the lot of confusion which has been raised with regard to the objection and the stage of objection to be raised. There was a judgment in 2001 between Shanti Lal versus state of Gujarat. Between Shanti Lal versus state of Gujarat, year 2001 Supreme Court 1158, year 2001 Supreme Court 1158, equivalent 2001 SCC 3, page number one. 2001 SCC 3, page number one. There was a criminal case, no less a person. It was a great courtship, Katie Thomas and Arun Kumar if I remember. There was a judgment where the court said that the objection being raised and during the course of trial the parties are putting the spoke in the wheel of justice and dragging the matter and taking the matter to the high court etc. It is according to the heart strike. That was a criminal case. The court said instead of doing all these things, you can receive the document and decide the same at the time of pronouncing the judgment. And an exception was given namely with regard to an unregistered and stamped duty. If it is unregistered and insufficiently stamped, then these two things can be raised at the time and all other things you can go to the judgment stage. You can even file a photocopy of the document. Whether you have laid the foundation and the section 65 doesn't matter at that stage. That's what the judgment. But CPC is not its own way of doing things. It may be a wishful think of two great judges but unfortunately a wrong judgment emanating from a criminal case and subsequently followed by the high courts. And the subordinate judiciary, quite unfortunately they say that whenever a judgment comes from the apex court and the court fees, the lower court's fee, that it is far more easier to adopt them rather than the law, they will willingly adopt. That has happened in this case. In spite of the fact that it was a criminal case, the court started using this judgment indiscriminately whether it is a criminal case or a civil case stating that the evidence science is one and the same for either the criminal case or a civil case. It's quite unfortunate. We are not talking about the evidence science alone. We are talking about the procedure contemplated and the civil procedure court. You can now take into account order 13.23 also I'll come there. This judgment, even though it cannot be followed in a civil case, started to trickle down quite unfortunately even today many of the judges in the subordinate judiciary follow the same. Fundamenting for a moment that this judgment has not been followed by the Supreme Court itself in AIR 2003 Supreme Court, page 4548. Venganajala counter versus Arul Meghu Visvesara Swami Temple. Venganajala counter versus Arul Meghu Visvesara Swami Temple. AIR 2003 Supreme Court, page 4548. There was a case where an unregistered document was introduced in evidence. Sorry, photo copy of the document was introduced in evidence and both the counsel on record relied upon the document and it was only a case of interpreting the document about the nature of the documents. Two courts have went into the contents of the document stating that both the parties rely on the document is only a question of interpretation. And it went to the High Court before the Merron High Court. If I remember 1998 MLG or something, where is Starship Sadashivam when you was then you was at the Merron High Court. He has chewed this photo copy stating that how this document was attributed in evidence. Then no foundation was laid. I am quite surprised this document was laid with the trial court in coming to conclusion and then reverse the judgment. The matter went to the effects court in 2003. It was after this between Santhi Lawal Panchal's case. Where the Lordship came to give you on the High Court's head stating that when the parties allowed the document to be marked before the trial court, it is only mode of proving a document. Whether it can be used as a secondary evidence under section 65 or not can be challenged before the trial court. When both the parties rely upon the document it was only a case of interpretation. The Honorable High Court should not have issued the same from evidence. In such a scenario, the court came to a conclusion that if at all there is an objection with regard to the photo copy being marked, it should have been done at the trial court at the time of admitting the evidence. Once it is admitted and parties are laid upon the document, it is not open for the court to go into the question that it is after all a photo copy. In many a case we now find a difficulty. I am not sure about the judicial academy where it reaches the judges that it is photo copies are untouchable. But the point that issue is photo copy can also be a secondary evidence. Under section 65 it can be done if a party wants to rely upon all those things by sufficiently laying a foundation. Then what is the wrong in it? Merely because it is a photo copy you can't throw away the document. You have to fulfill the conditions under section 65 of the Evidence Act. The third of the judgment on that score is AIR 2009 Bombay, page 398. Geeta Marine Services versus state of Maharashtra. And coming to order 13 rule 3 CPC. Take it for 10 minutes. Peculiarly this order 13 rule 3 has not been canvassed anywhere. It says even if a document has to be admitted, the document has to be issued from evidence. If it is inadmissible and irrelevant. If the document is irrelevant and inadmissible in law, then the document has to be issued from evidence. It can be done even after admitting a document. Then why you say that the document, if you say there is an objection, you should make an objection at the time of admitting the document. The point is two. If a person wants to file a document is totally irrelevant and immaterial to the case. Then at that point of time would may not know that subsequently one may find that it is an irrelevant document. It has nothing to do with the issue on hand. Then yes to the document. Otherwise you will be sowing the seed for further litigation on the basis of the document. Therefore, an irrelevant document has nothing to do with the stamp duty. Nothing to do with the registration, but it is irrelevant to the issue or the pleadings in the case. If it is irrelevant, then it can be assured. Second, inadmissible document. There are two kinds of inadmissibility. One is registration and another is the stamp duty. Registration, as I said, whether or not you make an objection, it can be canvas at the time of arguing the matter. Or you can even file an application. And that's out of 13, 2, 3 that this document has to be issued from evidence or to be deleted from the marking because it is inadmissible evidence. But there is a right. What is the right? Many of the court think that inadmissibility consists of two parts. One is the registration and another is the stamp duty. In both the cases, the court has got power to issue the document if the stamp duty is not correct. Inadmissibility spoken to under order 13 to 3 is only in respect of non-registration of documents. It is all subject to section 35 and 36 of the stamp rights. If at all they have any doubt, there is one of the oldest judgments. Satya Bhatti v. Raja, 1930 Madras weekly notes page 511. Satya Bhatti v. Raja 1930 Madras weekly notes MWM 511. Well, the lawsuit would say that inadmissibility has contemplated order 13 to 3 is only in respect of registration, non-registration and it is subject to section 36. Therefore, if you want to exercise 13 to 3 in respect of a stamp duty, it has been done before the document is admitted in evidence. Therefore, there are two things available. Stamp duty is a substantive law whereas CPC is a procedural law. Substantive law, when it is there, the procedural law being handmade of justice has to pay with a bail for section 36 or 35 of the stamp party. Therefore, my submission is that if any judge who wants to say that it is an inadmissible document because of stamp duty, I can issue it before pronouncing the judgment, notwithstanding the fact that we have crossed the stage of section 35 and 36 is not possible. Do remember, there is a judgment of the Merwas High Court which has said that it is not possible to issue such a document. And then, an unregistered mortgage deed. Sometimes these documents are used for the purpose of showing a contract, evidence of money transaction, not in respect of an immobile property. Normally, when you file a suit in respect of a mortgage, it is on the basis of a security of the property. But if it is an unregistered mortgage, then the party can use the document to show purely a money transaction between the parties. There are two judgments. One is 2004, two Andhra law times, page 367. Umede Bojo Ram v. Badla Ghandarkar, Umede Bojo Ram v. Badla Gangadhar. 2004, two ALT, page 367. The second judgment is 2008, five CTC, page 206, five CTC, page 206. Selvam v. Mohammad Ghani, Selvam v. Mohammad Ghani, 2008, five CTC, page 206. The third is Dr. Ratna Swami v. Selva Kumara Swami. Dr. Ratna Swami v. Selva Kumara Swami. I think this is the judgment of the Metronome Psycho recently in 2018 of his lordship Saravanan and Subbaya, AS number 35 of 27. These three judgments went into the question. In fact, there is also a judgment. If I remember 1947 Privy Council, where an unregistered document can be used for proving a money transaction, not affecting the immobile property. Use it as a bond, as a promissory loan for getting the money back. Fuck this, it can be used. But the larger question is whether the document has to be stamped and what is the stamp? Normally, in case of a mortgage, a suffix mortgage, it is 4%, ordinary mortgage is 1%, etc. And if it is a 10 times, it makes the document is unworkable. You will be paying the stamp duty for the money which you are going to receive from the other party. Therefore, this is not possible at all. But my point is, I am going to place it before the forum. A question put for thought, namely, a document which can be used for collateral purpose on the section 35 has to be stamped for the purpose for which the document has been drafted or for the purpose for which it is to be used. My submission is that a document which requires registration and stamp duty, namely like a mortgage, which has not been done. And if a party wants to use the document, in all probability, these documents would not be stamped for the market as a mortgage. And if you slap 10 times stamp duty, whatever the money which the party has to receive from the other party has to pay a stamp duty, what is the fund? Therefore, no court has given an interpretation about this thought. I am placing it before this forum for taking it forward, namely, why a document which is being used for money transaction. A party should affix stamp duty and penalty as though it is a mortgage. Is it not enough for the person to pay the stamp duty as a money transaction and use the document? I place it before this forum for taking it further, I think because we will be hearing it also at the conclusion. And then the last of the matter about the new approach to the admissibility. That's what I opened it after 2002. There was a problem with the removal of the filing of the chief of the way. Two things will crop up. One is, without a pleading, that will be introducing evidence. It may not be a documentary evidence, but the oral evidence which is not part of the pleading or the oral evidence in respect of a document which was never marked or it could not be marked. Say for example, an undigested shielded, you plead the document and by way of an affidavit you bring it all sword, but you cannot mark the document. What is the nature of such evidence in the affidavit? And secondly, what is the effect of these types of documents being filed after 2002? It has been discussed by a full bench of the Bombay High Court. In Hemendra Rasiklal versus Subodh Modi, 2008-06 Bombay CR 519, full bench. And second judgment is Bajaj Auto versus TVS Motor Company Ltd. An unreported judgment of his ladship Satya Narayana in application number 2647 of 2015 of the year 2016 of the Metras High Court to Bajaj Auto versus TVS Motor Company Ltd. In the full bench's discussion in length about the earlier judgment which I have cited about the AIR 2001 Supreme Court, 2003 Supreme Court, Bangalajala counter, Bipin Shantilal Panchalal etc. And subsequently the full bench of the Bombay High Court came to the conclusion that Bipin Shantilal Panchal is not a case in respect of a civil sword. It was a case of a criminal law and even otherwise the principle of stardesis will apply, namely the existing law which has been followed for more than a century by the lawyers as well as the judges, is to if an objection is made with regard to the marking of a document then it has to be decided then and there itself there is no question of postponing it. But it makes a difference that in case of filing an affidavit, affidavit contains evidence, oral evidence, document, container documentary evidence. The Bombay High Court distinguished these two things. It came to the conclusion that in case of oral evidence let in sarptitiously in the Chief Affidavit, its merits and demerits, admissibility, relevancy, materiality or immateriality of such an affidavit can be gone into at the time of pronouncing the judgment. And secondly in case of a document, these documents if an objection is raised it has to be decided then and there itself by the court rather. Therefore this was a new approach because before 2002 we don't have any affidavit. Once an affidavit does matter we all know how we are shaping it. It is not the party's version but it is the lawyer's version. The lawyer can bring in everything under the sun by way of an affidavit and stating that there is a pleading etc. And therefore what the opposite party will do if something is introduced which is inadmissible per se in the affidavit, can we go on having a trial within a trial? Therefore the Bombay High Court came to the conclusion that in case of such a pleading irrelevancy or immateriality of the pleading or in the affidavit by way of oral evidence this can be gone into at the time of pronouncing the judgment. But in case of a documentary evidence if an objection is raised it has to be decided then and there itself. Be vigilant that it is being done. Most of them is the family arrangement. I will take two or three minutes because I have given some of the judgment. I will refer only two of the judgment. Kale versus Deputy Director of Consolidation. There is a very famous case in the IAR 1978 in 1976 Supreme Court, page 807. Kale versus Deputy Director of Consolidation, IAR 1976 Supreme Court, 807. And it has been touched upon very recently by the Supreme Court. In Rabindra Kaur, Kale versus Manjil Kaur, IAR 2020 Supreme Court, page 3799. There was an apparent uncomfortability on the part of the judges when they were dealing with an unregistered family arrangement which is being acted upon by the parties. And the fact that it has happened before 1988 or before Act 39 of 2005 depicting the daughter of the right to the property. And now this document is being challenged as it is a unregistered and scamper etc. In 1976 the Supreme Court came to conclusion a family arrangement. It can be in respect of not only the subject matter but also in respect of other properties which is being brought to have an harmonious relationship with the parties. And this family arrangement is a distinct concept, unmindful of other things. This has to be appealed by the court of law to bring in harmony with the family. But it has not touched even though it felt that the uncomfortability in the scam duty and registration, the court has appealed the family arrangement. And therefore an unregistered family arrangement. And the inadmissible document as I have said when Justice Ismail in 1978-74 said that it is possible to prove two things, namely severance of status and delivery of possession. These two judgments of the High Court, a Supreme Court recently in 2020 with the Draewaals arriving at Draewaals case also the court felt that in case of a family arrangement it has got a special place in India. That should not be disturbed unless there is a compelling necessity to do so. Now to place before the final question which I always do with regard to this collateral purpose as I was dealing with it. Unregistered mortgage, when a person wants to use it for a money transaction, can this document can be used by paying a scam duty as though it is a money transaction. Or he must pay the scam duty and penalty as though it is a mortgage and then go for an ordinary money transaction soon. My view is that it is quite penal for a party to pay the scam duty at 10 times as though it is a mortgage and then still go for a money transaction. And in such a case the money transaction requires a scam duty. That scam duty in my opinion is enough. What section 35 says is it should be sufficiently stamped. It does not say purpose for which it is being used. My opinion is the scam duty can be collected for the purpose for which the document is used and not the purpose for which the document is crafted. I will place before this forum. Thank you. Thank you. Session went spot on and the amount of participants who are watching us live on the YouTube as well as Facebook and coupled with the fact that people that leave the platform showed that whatever you were speaking they all took it as visible and they just had a good diet of knowledge today. The question by Dilip John is quite big. Mr. Prabhakar you can yourself read it. In respect of Dilip John's question that the cross-examination of witness's eros copy of his swan after it filed in different proceedings was shown to him. The witness admitted that he had filed a set up before the tribunal. However subsequently an objection by his counsel was raised that the document was not a certified copy. The court recorded a mark of the document. Can the document be challenged on the ground that it is only a photocopy and not a certified copy? The point is it is a swan after it. Once there is an admission there is no need for the after it also to go into the court. It is like filing a deposition copy from one suit to another suit. A deposition copy can be admissible only if there is a person who swan data or who deposed his date. If he is available and came into the box under section 145 of the evidence hand that the deposition can be used only when a question is put to the party and if he gives an answer which is inconsistent with what has been already stated then for that particular purpose the document can be marked. Once there is an admission there is no question of marking this after it. It is only an after it and the question of marking it does not arise at all to my view because once it is admitted it is more like deposition given in a court of law like a chief after it. I said that it is mine. Then where is the question of marking the deposition? If it is as a deposition then it cannot be marked. If it is only in the form of a letter then on the basis of an admission it can be marked. There is no question of why it should not be done. Straight away I will refer to Vengadajala counter versus Arul Madhu Vishwasanath Swami temple where the court center in case of photography if it is admitted by the party it can be marked. There is also a judgment if I remember 2012 of the Delhi High Court which says the party admits the contents of the document or photocopy of the document then it can be admitted. This is by Chandrasekhar a photocopy of an agreement is marked by paying deficit stamp is paid. Now I want to mark the original document of photocopy. Should I pay stamp duty again? The question of paying a stamp duty on a photocopy does not arise at all. It can't be done. Only in case of an original it can be done. The law is settled. This is by Omesh. The testator executed registered will in 2016 and again in 2018 by revoking his earlier will of 2016 and died after one month of the execution of second will. The second will was challenged on basis of fraud and feeble state of mind of testator. In written statement the defendant though admitted the execution of the first will supported the second will. My question is that admission of execution of first will by defendant is sufficient for its proof or the plaintiff has to call the attesting witness to prove the same in terms of section 68. There is one judgment of the Supreme Court if I remember that in case of an admission in the bleeding or in the written statement it is enough that you need not examine the attesting witness if there is an admission of the document. Because it will come in contrary to the section 58 where there is an admission there is no need for a proof. 68 will come into play but under section 68 there is a specific provision which is said that not being a will if you say that there is a provision which is section 68 that not being a will provided it is not being a will admit a party admit the document then you need not examine the attesting witness. If it is a will whether you have to examine the problem is what has been admitted by the other party is only the execution. The execution is not enough to prove a will. You must prove the sound and dispersing state of the mind of the testator also. Therefore the provision under section 68 consists of two parts one is not being a will and another is only in case of other documents like a mortgage or a gift or a settlement and admission is enough you need not examine the attesting witness. In case of a will you have to do it. Second it is the only document by which you have to necessarily prove the mental state of the testator because the testator will not be alive to prove the same. Therefore my view is even otherwise because the once the second will is found to be a fraud. You cannot rely upon this document to show that the first will is true. You say that it is a fraud and the court held that it is a fraud then naturally and you have to prove the first will to get a judgment. This is by Praveen Rahul. Evidence adduced are exhibited adduced during the trial but judge did not appreciate and refer the same to him in his judgment. What is the remedy? It is on the YouTube. That question is on the YouTube. What is the rational for promissory alone deficit stamp duty can't be collected for other documents. It can be admitted on payment of deficit stamp duty. The rational is to make the parties to be disciplined. The government should know that you have to register a document and if you take the chance of not registering then you have to pay penalty which is more of a taxing statute. There can't be any reason because there is no need for the parliament or the legislative to give any reason. Taxing can be unreasonable also. The YouTube was this only I will check it out on the field floor. So friends, as usual what we had initially at the first instance stated, we have already shared those judgments on the WhatsApp group and otherwise also was sharing the judgments. We are thankful to Krishna T. Trichy who was sharing all the judgments and we will be sharing these judgments again on the WhatsApp group. We have shared the number you can connect with us on the WhatsApp group for the latest judgments. The last question has been by Devdas. Just read that meanwhile I will tell tomorrow's session. In case of a missionary, it is a movable property. There is no need for a stamp or registration doesn't come into play at all. It is only a missionary, right? Thank you and before we park for the day today, we would acknowledge the insights given for the purposes of judgments by Krishna T. Trichy and above all for Mr. Prabhakar for giving the insightful sessions. And those who want to watch the previous webinars, they can like, share and subscribe to our Beyond Law CLC channel. And again, we would all request what Mr. Prabhakar had said and we had said at the first instance, keep on wearing the mask, do your vaccination and stay safe, stay home and in whatever manner you can contribute to the society socially, economically, morally. Keep on doing that. The world wants you and keep on doing it. And thank you Mr. Prabhakar for the session which was brought up. Namaskar and Jai Hind.