- (1.) 1. Plaintiff in O.S.No.406 of 1993 on the file of the District Munsif Court, Arupukottai is the revision petitioner Suit filed by him was for declaration of title and recovery of possession. The plaintiff alleged that on 25.5.1947, there was a panchayat and a partition was effected and the same was recorded in a note book and all the sharers have also affixed their signature in that document. The plaintiff properties were allotted to one of the sharers Karuppiah Konar and on his death, the property devolved on his widow Vellammal and the plaintiff. It is also alleged that the Vellammal also died and the plaintiff is the absolute owner of the property. The defendants are now interfering with the possession and enjoyment of the property wherein the plaintiff has put up a construction. The suit was therefore, filed for declaration and consequential reliefs.
(2.) THE defendant has filed a written statement. After suggesting issues, parties went on trial when P.W.1 was being examined, a document was marked as Ex.A-1. At the time of marking the document, there was no objection. It is seen on the next day, an application was filed on behalf of the defendant's side as I.A. was early as 1957 to set aside the marking of the document and delete the Ex.A-1 from evidence. It is alleged that the Ex.A-1 should not have been admitted in evidence since it is an unregistered partition deed. It was submitted on their behalf that under Sec.49 of the Indian Registration Act, a document which requires registration, if not registered, is not admissible in evidence and therefore cannot be looked into for any purpose. According to them, Ex.A-1, was admitted in evidence without taking into consideration that whether the document requires registration or not. The mistake has been committed by court which has to be rectified. The said I.A. seriously opposed by the plaintiff and contend that once the document is marked, it cannot be challenged thereafter. It is further submitted that even if the document Ex.A-1 is treated as partition deed, it cannot be looked into for collateral purposes. After hearing both sides, the trial court held that Ex.A-1 requires registration and therefore it cannot be admitted in evidence. The earlier order for marking the same was set aside and the document eschewed from evidence. The said order of the lower court is challenged in this revision. Learned counsel for the petitioner submitted that the procedure adopted by the lower court is not proper and the goes against the settled legal proceedings. It is submitted that once a document is marked, in the subsequent stage of same proceding the court cannot delete the same or eschew the same from the evidence and the defendant also is not entitled to file an application for the said purpose. Learned counsel further submitted that at any rate, if the document could be used for proving collateral purpose then the marking of the document will have to continue and the lower court cannot order is liable to be interfered with. other purposes also.
(3.) AS against the said submission, learned counsel for the respondent submitted that if the document is not admissible under any law, the court cannot mark it against the provisions of law, The court is therefore, competent to set aside the marking of the document. It is further submitted, the document is marked only for proving partition and it is only of the document the partition has taken place which requires registration and therefore, it cannot be used as evidence at all. Heard both sides, In regard to the first submission that the court has to treat the document in evidence, once it is marked and has no power to delete the same, I do not think the submission could be accepted. The very same question came for consideration in the decision Chavakula Yanadamma v. Chavakula Venkateswaralu Chavakula Yanadamma v. Chavakula Venkateswaralu Chavakula Yanadamma v. Chavakula Venkateswaralu (1946)2 MLJ. 345: A.I.R. (34) 1947 Mad. 168. In that case also, no objection was raised at the time when the document was marked, But, subsequently, it is found that the document is inadmissible in evidence. An objection was raised by the defendant as its admissibility, the Division Bench of this Court in para 3 of the judgment held thus: ? The fact that an objection as to the admissibility of a document on the ground of its non-registration is taken at a late stage of the trial may be taken into consideration in awarding costs, but it cannot be a ground for treating the document as admissible in evidence if by law it is in admissible. ? In view of the said decision, the contention of the learned counsel is rejected. The court has power to reconsider the admisisbility of a document though it is admitted by inadvertence or the mistake of without considering its admisisbility. There is no question of principle of estoppel are to be or waived for application in such cases. If a law prohibits the admission of a document in evidence, that court cannot admit the same merely because it was not objected by the defendant or merely because by the objection was taken belatedly. If a document is found to be inadmissible in evidence, and it is brought to the notice of the court, the court is bound to rectify the mistake. ;