IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 9110/2007 Gajanand & Ors. V/s. Maharaj Singh & Anr. Date of Order : 17th April, 2012 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Tripurari Sharma, for the petitioner. Mr. Y.K. Sharma, for the respondent.
By way of the instant writ petition, the petitioners have beseeched to quash and set aside the order dated 29th September, 2007, whereby the learned Civil Judge (Jr.Division), Hindaun City, allowed the unregistered and unstamped sale-deed of the respondent-plaintiff to be marked exhibit.
2. Shorn of unnecessary details, the facts of the case are that the plaintiff-respondent filed a civil suit against the petitioners-defendants on 4th December, 2006 for permanent injunction with regard to a plot described in Para-1 of plaint, in the court of Civil Judge (Jr.Division), Hindaun City. It is alleged that the petitioners-defendants intended to dispossess the respondent-plaintiff from the said suit plot forcibly, hence, above suit was filed, wherein the petitioners-defendants appeared in the court after service of summons. The petitioners-defendants denied the averments made in the plaint. During the pendency of the suit, the respondent-plaintiff intended to mark exhibit on the sale-deed which was opposed by the petitioners-defendants vehemently on the ground that the sale-deed was not registered nor was it duly stamped. Despite there being opposition from the petitioners-defendants, the learned trial court dismissed the objections and allowed the respondent-plaintiff to mark exhibit thereon.
3. Having heard the learned counsel for the parties and carefully perused the relevant material on record, it is not in dispute that the sale-deed dated 14th October, 1977 was unregistered and not duly stamped. Now, a very short question, which springs up for consideration in the instant petition is as to whether unregistered and unstamped document i.e. sale-deed, can be allowed to be exhibited in evidence?
4. In the case of Avinash Kumar Chauhan Versus Vijay Krishna Mishra reported in AIR 2009 Supreme Court 1489, the Hon'ble Apex Court held as under:
“The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act. The plea that the document was admissible for collateral purpose, would not be tenable. Thus, the order directing impounding of said document was not liable to be interfered with.” The Hon'ble Apex court further held that “Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
Thus, it is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act.”
5. Reliance is also placed on Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chanda and others [AIR 1965 All. 164] and Chandra Sekhar Misra vs. Gobinda Chandra Das, [AIR 1966 Ori. 18].
6. Adverting to the facts of the instant case, it is found that the document in question was unregistered and unstamped. It is categorically provided under Section 39 of the Stamp Act that whatever may be the purpose, the document cannot be admitted in evidence unless it is duly stamped and if the document is insufficiently stamped, the parties are required to pay the defficient stamp duty and unless the stamp duty is not properly paid, the document cannot be permitted to be exhibited nor can the same be admitted to evidence. The learned trial court is not found to have discussed this aspect in correct and right perspective. It has been observed by the learned trial court that the document can be admitted to evidence for collateral purpose even if it is not registered and properly stamp.
7. Section 35 of the Stamp Act contemplates that a document shall not be admitted to evidence for any purpose whatsoever unless it is duly stamped. The finding of the learned trial court in this regard is found to be erroneous and contrary to law, hence, the impugned order being contrary to law deserves to be set aside.
8. For the reasons stated above, the writ petition is allowed and the impugned order dated 29th September, 2007 stands set aside. The learned trial court is directed to get the document duly impounded under the provisions of law and thereafter only, should permit the respondent-plaintiff to mark exhibit thereon. Unless the document is duly stamped, the same cannot be admitted to evidence.
All Corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Anil Makawana Jr. Personal Assistan