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Somasundaram v/s R. Malliga & Others

    C.R.P. (PD) No. 3137 of 2013 & M.P. No. 1 of 2013

    Decided On, 08 December 2017

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE V.M. VELUMANI

    For the Petitioner: S. Mukunth, M/S. Sarvabhauman Associates, Advocates. For the Respondents: R1 to R3, R8, P. Chandrasekar, Advocate, R7 & R9, S.V. Pravin Rathinam, Advocate.



Judgment Text

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 12.07.2013 made in Memo dated 02.07.2013 in I.A.No.82 of 2013 in O.S.No.21 of 2012 on the file of the Additional District Court, Vellore).

1. The Civil Revision Petition is filed against the order dated 12.07.2013 made in Memo dated 02.07.2013 in I.A.No.82 of 2013 in O.S.No.21 of 2012 on the file of the Additional District Court, Vellore.

2. The petitioner is fourth defendant, respondents 1 to 3 are the plaintiffs, respondents 4 to 6 are the defendants 1 to 3 and respondents 7 to 9 are the defendants 5 to 7 in O.S.No.21 of 2012. The respondents 1 to 3 filed suit for partition and injunction. The respondents 7 and 9 filed written statement and are contesting the suit. Trial commenced and when the suit was posted for further evidence on behalf of the defendants, the petitioner filed I.A.No.82 of 2013 for recalling D.W.1/himself to mark further documents. When the said application was pending, petitioner filed memo dated 02.07.2013 for permission to mark the documents.

3. According to the petitioner, he is owner of the property in item No.29 and the said document is not a lease deed. The said document is only a license granted to the third party to pluck the coconuts from the coconut trees in item No.29 of the suit schedule properties. In view of the same, the petitioner is not liable to pay any stamp duty penalty and sought for permission to mark the document.

4. The respondents 7 and 9 filed objections to the memo. According to them, it is a usufructuary mortgage and it is liable to be properly stamped and registered. The plaintiffs/respondents 1 to 3 made an endorsement that they have no objection for memo being allowed.

5. The learned Judge considering the materials available on record and judgments relied on by the parties, rejected the memo holding that the document sought to be marked is liable to be stamped at Rs.2,400/- and said document can be marked only after petitioner pays stamp duty penalty of Rs.24,000/- and Rs.2,400/- and totally, Rs.26,400/-.

6. Against the said order dated 12.07.2013 made in memo in I.A.No.82 of 2013, the present Civil Revision Petition is filed by the petitioner/fourth defendant.

7. The learned counsel for the petitioner contended that the learned Judge erred in holding that the document sought to be marked is lease deed without properly appreciating contents in the said document.

8. The respondents 1 to 3 and 8 submitted that they have no objection for memo being allowed.

9. Per contra, the learned counsel for the respondents 7 and 9 contended that document sought to be marked is only a usufructuary mortgage and it is liable to be duly stamped and registered. Only if the petitioner pays stamp duty penalty, the same can be marked.

10. Heard both sides and perused the materials available on record.

11. The document sought to be marked is filed in the typed set of papers. A reading of the said document shows that it is only a license to pluck the coconuts for two years from the coconut trees in Item No.29 of the suit schedule property and it is not a lease deed. The petitioner has retained the possession of the property and petitioner has to maintain the property properly by irrigating and manuring the trees. The relevant portion reads as follows:

'TAMIL'

12. The above paragraph clearly reveals that the said document is only a license granted to Ponnarasan, S/o.Panneer Selvam, to pluck coconuts from coconut trees. The possession is being retained by the petitioner and it is for the petitioner to maintain the property properly and that the said Ponnarasan will enjoy the coconuts grown in the trees. The learned Judge has failed to consider this clause properly and erred in holding that the document sought to be marked is a lease deed and stamp duty penalty to be paid. The learned Judge committed an irregularity in coming to this conclusion and he has not

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exercised his power properly. 13. In the result, the Civil Revision Petition is allowed by setting aside the order dated 12.07.2013 made in memo in I.A.No.82 of 2013. The learned Judge is directed to dispose the suit in O.S.No.21 of 2012 as expeditiously as possible, in any event, not later than three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
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