Orissa High Court
Godaba Madhu vs Rai Anandam on 3 March, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.1561 of 2014
In the matter of an application under Article 227 of the Constitution of
India.
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Godaba Madhu ..... Petitioner
Versus
Rai Anandam ..... Opposite party
For Petitioner -- Mr.R.K.Sahoo,
Advocate
For Opp. Party -- Mr.Biraja Pr.Das,
Advocate
PRESENT:
THE HON'BLE DR. JUSTICE A.K.RATH
Date of Hearing : 22.2.2017 : Date of Judgment:03.03.2017
DR. A.K.RATH, J.The seminal question that hinges for consideration is as to whether an unregistered partition deed is admissible in evidence for collateral purpose ?
2. The opposite party as plaintiff instituted C.S.No.44 of 2013 in the Court of the learned Civil Judge (Senior Division), Parlakhemundi, Gajapati for declaration of right, title, interest over the suit property, permanent injunction and recovery of possession impleading the petitioner as defendant. Pursuant to issuance of summons, the defendant entered contest and filed written statement denying the assertions made in the plaint. In course of hearing, the defendant filed an application and sought to mark an unregistered partition deed as 2 exhibit. The same was objected to by the plaintiff. The learned trial court came to hold that the document is required compulsorily registrable under Section 17 of the Registration Act and as such the same is not acceptable in evidence.
3. Heard Mr.Sahoo, learned Advocate for the petitioner and Mr.Das, learned Advocate for the opposite party.
4. The subject of matter of dispute is no more res integra. This Court in Abani Kumar Meher and others Vrs. District Collector, Bargarh and others (C.M.P.No.1444 of 2016 disposed of on 15.2.2017) held thus:-
"6. Section 17 (1) (b) of the Registration Act, 1908 mandates that any document which has the effect of creating and taking away rights in respect of an immovable property must be registered. Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals that documents that are required to be registered under Section 17 of the Act.
7. Section 35 of the Stamp Act, 1899 mandates that instrument not duly stamped inadmissible in evidence. The same is quoted below:-
"35. Instruments not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that-
(a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient 3 portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
xxx xxx xxx
8. On a bare perusal of the said provision, it is pellucid that an authority to receive evidence shall not admit any instrument unless it is duly stamped.
9. The apex Court in the case of Omprakash Vrs.
Laxminarayan and others (2014) 1 SCC 618 held that an instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. In the case of Avinash Kumar Chauhan Vrs. Vijay Krishna Mishra, (2009) 2 SCC 532, the apex Court held that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Since adequate stamp duty was not paid, it was held that the court, therefore, was empowered to pass an order in terms of Section 35 of the Act.
10. Thus, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. In the event the petitioners want to mark those documents, it is open for them to pay the stamp duty together with penalty and get the document impounded and the learned trial court is at liberty to mark the said documents subject to proof and relevance."
5. Where a partition takes place, the terms of which are incorporated in an unregistered document, the said document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners.
46. A five Judge Bench of Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy, AIR 1969 AP 242 held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered documents can be relied upon for collateral purpose i.e., severancy of title, nature of possession of various shares but not for the primary purpose i.e., division of joint properties by metes and bounds.
7. In view of the discussions made above, the petition is disposed of with an observation that in the event the defendant wants to mark the document for collateral purpose, it is open for him to pay the stamp duty with penalty, get the document impounded and the learned trial court is at liberty to mark the said document as exhibit for collateral purpose subject to proof and relevance.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 3rd March,2017/CRB.