Rajasthan High Court - Jodhpur
Mungi Devi vs Ramlal (2026:Rj-Jd:3267) on 19 January, 2026
[2026:RJ-JD:3267]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 25010/2025
1. Mungi Devi W/o Poonam Chand Ji, Aged About 82 Years,
Resident Of Dayalpura, Tehsil Ahore, District Jalore,
Currently Residing At C/o Indrajit S/o Poonam Chand Ji
Khatri, House No. 7, Venkat Ryan Street, Park Town,
Chennai (Tamil Nadu).
2. Ghanshyam S/o Poonam Chand Ji, Aged About 55 Years,
Resident Of Dayalpura, Tehsil Ahore, District Jalore,
Currently Residing House No. 6/7, Venkat Ryan Street,
Park Town, Chennai (Tamil Nadu).
3. Nandlal S/o Poonam Chand Ji, Aged About 60 Years,
Resident Of Dayalpura, Tehsil Ahore, District Jalore,
Currently Residing House No. 7, Venkat Ryan Street, Park
Town, Chennai (Tamil Nadu).
----Petitioners
Versus
1. Ramlal S/o Bhawganji Khatri, Aged About 71 Years,
Resident Of Dayalpura, Tehsil Ahore, District Jalore (Raj.).
2. Indrajit S/o Poonam Chand Ji, Aged About 50 Years,
Resident Of Dayalpura, Tehsil Ahore, District Jalore,
Currently Residing House No. 7, Venkat Ryan Street, Park
Town, Chennai (Tamil Nadu).
----Respondents
For Petitioner(s) : Mr. Falgun Buch
For Respondent(s) : Mr. Eklavya Bhansali
HON'BLE MR. JUSTICE SANJEET PUROHIT
Order 19/01/2026
1. The petitioners-defendants, by way of present writ petition has challenged the validity and propriety of the order dated 14.10.2025 passed by the learned Civil Judge (Senior Division), Jalore ("learned Trial Court") rejecting the application of (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (2 of 20) [CW-25010/2025] petitioners/defendants filed under Section 35 of the Rajasthan Stamp Act, 1998 and refused to impound and determine the Stamp Duty of the document dated 06.06.1976.
2. Explaining the background facts, learned counsel for the petitioners submitted that the respondent-plaintiff has filed a civil suit praying for possession of the suit property. It is pleaded that the suit property has been given by the petitioner-tenant to the father of the present defendants Late Shri Poonam Chand on license, without rent, solely for the purpose of running a floor mill. It is further pleaded in the plaint that the original sale deed of the land in question was also handed over to Late Shri Poonam Chand so as to allow him to obtain the electricity connection in his own name. Further, when the defendants have refused to vacate the said land and threatened to create third party rights, the suit for possession was filed.
3. The written statement was filed by the defendants, denying the averments made in the plaint. It is contended that as a matter of fact, by virtue of a mortgage-cum-possession deed dated 06.06.1976, Late Shri Poonam Chand and his legal representatives remained in possession of the land in question. On the basis of said defence and while raising objections regarding maintainability of the suit, the defendants prayed for dismissal of the suit.
4. During the course of suit proceedings, petitioners/defendants filed application under Section 35 of Rajasthan Stamp Act and requested for impounding of the document - mortgage deed dated 06.06.1976 while showing their readiness to pay the deficient stamp duty. It is stated that the said document is a vital piece of evidence, reflecting the long possession enjoyed by the (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (3 of 20) [CW-25010/2025] defendants over the suit property. Further that under the mandate of Rajasthan Stamp Act, 1958 ("Stamp Act"), the said document is required to be adequantely stamped for the purpose of its admissibility and thus, the same be impounded to cure the deficiency of stamp.
5. The said application was objected by the respondent-plaintiff stating that the document in question, being an unstamped and unregistered document, is not admissible in evidence, thus, prayed for rejection of the said application.
6. The learned Trial Court while passing the order dated 14.10.2025 observed that the document - mortgage deed dated 06.06.1976, had been executed over stamp of Rs. 5/- and the same is insufficiently stamped. It is further observed that since the mortgage deed regarding a property valued above Rs. 100/- is required to be registered, therefore, as per the mandate of Section 49 of Registration Act, 1908 ("Registration Act"), same is not admissible in evidence and therefore, there cannot be any justification in impounding the document and to send the same for determination of deficit stamp duty. The learned Trial Court vide order dated 14.10.2025 dismissed the petitioner's application, which has been challenged in the present writ petition.
7. Arguing on behalf of the petitioners, Advocate Mr. Falgun Buch submitted that the order dated 14.10.2025 is absolutely erroneous and against the mandate of Section 35 of the Stamp Act. Counsel for the petitioners contended that as per the provisions of Stamp Act whenever any document which is inadequately stamped is placed before any authority having power to receive evidence under the law, it is a mandatory statutory duty (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (4 of 20) [CW-25010/2025] to examine the sufficiency of stamp immediately and impounding of the same cannot be denied on the basis of objection regarding its admissibility in evidence due to provisions of Registration Act.
Learned counsel for the petitioner stated that in this regard, a specific legal question has been answered by the Division Bench of this Court in the case of Sanjeev Bhardwaj and Ors. Vs. Yogeshwar Swaroop Bhatnagar and Ors. reported in 2020 (3) RLW 2574 (Raj.).
8. Per contra, learned counsel for the respondents, Mr. Eklavya Bhansali, argued that order impugned dated 14.10.2025 is absolutely just and valid. It is contended that as per the Section 17 of the Registration Act, a document relating to any form of transfer of property, having a valuation of more that Rs. 100/-, is required to be necessarily registered, and in absence of the same, the same is not admissible in evidence as per Section 49 of the Registration Act. Learned counsel for the respondents submitted that since the mortgage deed, as relied upon by the defendants , executed on a stamp of Rs. 5/-, is not admissible in evidence, therefore, the question with regard to impounding the same does not arise.
9. Counsel for the respondents stated that the impounding of the mortgage deed dated 06.06.1976 at this stage would prejudice the rights of the respondent-plaintiffs. Counsel for the respondents relied upon the judgment passed by this Court in the case of Ganpat Mal Dhariwal Vs Sukhraj and Anr. 2002 (1) WLC 299 as well as the judgment dated 03.10.2023 passed by the High Court of Madhya Pradesh in the case of Jagdish Vishwakarma Vs Smt. Julekha Ahmed.
(Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (5 of 20) [CW-25010/2025]
10. Heard learned counsel for the parties and perused the material available on record.
11. The sole issue that arises for adjudication before this Court is as to whether a document, which is insufficiently stamped, can be impounded and sent for determination of the Stamp Duty, while keeping the question of its admissibility in evidence as per the provisions of Stamp Act / Registration Act open and such issue can be decided on a later stage. To decide the said issue, this Court deems it desirable to refer to the relevant provisions of the Rajasthan Stamp Act:-
"Section 35. Adjudication as to proper stamp -
(1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty, if any, with which it is chargeable, [and pays a fee of five hundred rupees], the Collector shall determine the duty, if any, with which in his judgment, the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with [a true copy or] an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such [true copy or] abstract and evidence have been furnished accordingly : Provided that,-
(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an inquiry as to the duty with which the instrument to which it relates is chargeable; and
(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (6 of 20) [CW-25010/2025] to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.
(3) Where the Collector has reason to believe that the market value of the property has not been truly set forth in the instrument brought to him for determining the duty under sub-section(1) he may, after such inquiry as he may deem proper and after giving a reasonable opportunity of being heard to the person bringing the instrument, determine the market value of such property for the purpose of duty."
"Section 37. Examination and impounding of instruments.-
(1) Every person having by law or consent of parties authority to receive evidence, and every person incharge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed: Provided that,-
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974);
(b) In the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (7 of 20) [CW-25010/2025] (3) For the purposes of this section in cases of doubt,--
(a) The State Government may determine what offices shall be deemed to be public offices; and
(b) The State Government may determine who shall be deemed to be persons incharge of public offices. (4) When a person incharge of a public office, during the course of inspection or otherwise, detects from an instrument or copy thereof or when it appears therefrom to the person referred to in sub-section (1) that the instrument is not duly stamped, such person shall forthwith make a reference to the Collector in that matter.
(5) The Collector may, suo-moto or on such reference, call for the original instrument for ascertaining whether it is duly stamped and the instrument so produced shall be deemed to have been produced or come before him in the performance of his functions and in case the original instrument is not produced within the period specified by the Collector, he may require the payment of the proper duty or the amount required to make up the same together with the penalty under section 44."
"Section 39. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty under this Act 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, subject to all just exceptions, be admitted in evidence on payment of, -
(i) 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, and [(ii) a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but such penalty shall not exceed to two times of the deficient stamp duty.] (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (8 of 20) [CW-25010/2025]
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp; the contract of agreement shall be deemed to be duly stamped.
(c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
(d) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 36 or any other provision of this Act.
(e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid.
(f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form of a consolidated lump sum.
(g) nothing herein contained shall prevent the admission of any instrument in any court when such document has been executed by or on behalf of the Government or where it bears the Certificate of the Collector as provided by section 36 or any other provision of this Act."
12. This Court also deems it desirable to refer Section 35 of the Indian Stamp Act, 1895 which is in pari materia with the Section 39 of the Rajasthan Stamp Act :-
"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 (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (9 of 20) [CW-25010/2025] 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 any 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 portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
13. A perusal of the provisions quoted above clearly shows that on production of any instrument chargeable with duty before a person who is authorized to receive evidence or a person who is in-charge of a public office, it is the duty of such person/authority to impound the document, if it is not duly stamped. The language used in the above said provisions shows the mandate of law incorporated in the said provisions and no discretion is left to the (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (10 of 20) [CW-25010/2025] authority for not impounding the said documents immediately upon its production.
14. The mandate behind the said provisions is to ensure that the public exchequer should not be at the losing end in respect of Stamp Duty where a person intends to take benefit or shelter of a document which is not sufficiently stamped. In view of the said mandatory provisions, it is clear that a court/authority cannot deny to impound a document on any of the counts including upon the issue of its admissibility, which can be decided at a later stage.
15. The reliance placed by the petitioner upon the judgment passed in the case of Sanjeev Bhardwaj (supra) is very much relevant, where upon a reference made by the learned Single Judge, a specific Issue No.3 was framed and decided by the Hon'ble Division Bench of this Court. For ready reference, the Issue No.3 as framed is quoted below:-
"Whether on production of unstamped document, Court is duty bound to determine the stamp fee along with penalty, as per Section 35(1) of the Act or to impound the same under Section 33 of the Act and send the same to the Collector for determination of stamp duty and penalty in order to make the document admissible?"
16. The said issue has been answered by the learned Division Bench in affirmative. The relevant Para Nos. 30 to 37 reads as under:-
"30. Adverting now to the third question whether the Court is bound to follow the procedure provided in Sections 33 and 35 of the Stamp Act, 1899, we shall presently deal with the scheme of the legislation with reference to provisions of the Rajasthan Stamp Act, 1998. Section 39 of the Rajasthan (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (11 of 20) [CW-25010/2025] Stamp Act is corresponding to Section 35 of the Indian Stamp Act, 1899, which mandates that no instrument chargeable with duty under the Act, 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. Significantly, neither Section 37 of the Rajasthan Stamp Act (Section 33 of the Stamp Act, 1899), nor Section 39 of the (23 of 30) [CWs-15760/15 & 6437/13] Rajasthan Stamp Act (Section 35 of the Stamp Act, 1899) contain a proviso like Section 49 of the Registration Act enabling the Court to use an instrument for collateral purpose, which though is chargeable to stamp duty, but is unstamped or insufficiently stamped. Language of both these provisions is peremptory in nature and mandates that the Court cannot use such document for any purpose whatsoever. The Stamp Act casts a duty upon every Court i.e. a person having by law, authority to receive evidence, to examine the instrument in order to ascertain whether it is duly stamped and if the Court comes to the conclusion that the instrument is not duly stamped, it has to mandatorily impound the same and deal with it as provided under the Act. The mandatory nature of the Act is evident from the use of the word "shall' both in Section 37 and 39 of the Rajasthan Stamp Act, which are analogous to Section 33 and 35 of the Stamps Act, 1899.
31. The Supreme Court in Government of A.P. vs. P. Laxmi Devi- (2008) 4 SCC 720 held that it is incumbent upon the Court to impound the document unstamped or insufficient stamped. Para 16 of the report, which is relevant, is reproduced hereinunder:
"16. A perusal of the said provision shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (12 of 20) [CW-25010/2025] functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word 'shall' in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word 'shall' in Section 33(1) does not mean 'may' but means `shall'. In other words, it is mandatory to impound a document produced before him or which comes before him in the (24 of 30) [CWs-15760/15 & 6437/13] performance of his functions. Hence the view taken by the High Court that the document can be returned if the party does not want to get it stamped is not correct."
32. Another significant question of law which arises for consideration is whether on impounding the instrument, the court should on its own collect the deficient stamp duty and penalty as envisaged in Section 39 of the Rajasthan Stamp Act or after impounding such instrument, send the same to the Collector for the needful. Clause (a) of proviso to Section 39 stipulates that the impounded instrument shall, subject to all just exceptions, be admitted in evidence on payment of- (i) 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 and (ii) a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but such penalty shall not exceed to two times of the deficient stamp duty. Clause (e) of the proviso to Section 39 further clarifies it by providing that nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. In contrast, Section 37(1) of the Rajasthan Stamp Act provides that if a document is produced before a person or a public office having authority in law to receive evidence, which (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (13 of 20) [CW-25010/2025] in his opinion is chargeable to stamp duty and is not duly stamped, shall impound the same. Section 37(4) provides that such person shall forthwith make a reference in that matter to the Collector. Sub-section (5) of Section 37 then provides that Collector may suo-moto or on (25 of 30) [CWs- 15760/15 & 6437/13] such reference, call for the original instrument for ascertaining whether it is duly stamped and the instrument so produced shall be deemed to have been produced or come before him in the performance of his functions and in case the original instrument is not produced within the period specified by the Collector, he may require the payment of the proper duty or the amount required to make up the same together with the penalty under section
44. Sub-section (1) of Section 42 of the Rajasthan Stamp Act provides that when the person having authority of law or consent of the parties to receive evidence, impounds an instrument under Section 37 and admits such instrument in evidence upon payment of a penalty as provided by Section 39 or of duty as provided by Section 41, shall sent to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall sent such amount to the Collector, or to such person as he appoints in this behalf. Sub-section (2) of Section 42 further provides that in every other case, the person so impounding an instrument shall send it in original to the Collector.
33. The important aspect which is required to be considered also at this juncture is whether the Court impounding the document has any discretion to charge lesser penalty than what has been provided for by Section 39 of the Rajasthan Stamp Act. In this connection, reference may be made to Section 44 of the Rajasthan Stamp Act, which provides for power of the Collector to stamp the impounded instrument. Section 44(1)(b) provides that when the Collector receives an instrument sent to him under sub-section (2) of Section 42, chargeable with a duty under this Act, he shall, if in his opinion, such instrument is duly stamped or is not chargeable (26 of 30) [CWs-15760/15 & 6437/13] with duty, certify so by (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (14 of 20) [CW-25010/2025] endorsement on such document or if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of proper duty or the amount required to make up the same, together with a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained unstamped or insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but not exceeding two times the deficient stamp duty. Sub-section (2) of Section 44 then provides that every certificate under clause (a) of sub-section (1), shall for the purpose of this Act, be conclusive evidence of matters stated therein. Sub-section (3) of Section 44 further provides that where an instrument has been sent to the Collector under sub-section (2) of section 42, the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer. But the Collector under Section 43 of the Act has been conferred with a discretion to refund whole of the penalty paid in respect of an instrument, which has been impounded and sent to him under sub-section (1) of Section 42 only because it has been written in contravention of section 13 or section 14. No such discretion, however, has been conferred on the Court.
34. The Supreme Court in a recent judgement in Gangappa & Anr. vs. Fakkirappa-(2019) 3 SCC 788 in the scope of Section 34 of the Karnataka Stamp Act 1957 (analogous to Section 39 of the Rajasthan Stamp Act) was considering the question whether the trial court while admitting an insufficiently stamp document, could have exercised its discretion in imposing penalty 2 times of deficient amount of stamp duty or it was obligatory for the trial court to impose the penalty at the rate of 10 times. Analysing the provision of Section 38 of the Karnataka Stamp Act (which is analogous to Section 43 of the Rajasthan Stamp Act), the Supreme Court held that the Deputy Commissioner under that provision is empowered to refund any portion of the penalty in excess of five rupees, which has been paid in respect of such instrument. Since sub- section (1) of Section 38 uses the expression "if he thinks fit", (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (15 of 20) [CW-25010/2025] he also has the discretion to impose penalty of 10 times in the facts of the particular case. Affirming the view of division bench of the Karnataka High Court in earlier judgement of Digambar Warty and Others vs. District Registrar, Bangalore Urban District and another, ILR 2013 KAR 2099 that there is no discretion vested with the authority impounding the document in the matter of collecting duty under Section 33 and 34, the Supreme Court held that the word "shall" used in those provisions has rightly been interpreted by the High Court. Analogous provisions to these Sections are Sections 37 and 39 of the Rajasthan Stamp Act, which also uses the word "shall", leaving no discretion to the Court to impose a penalty other than the one prescribed thereunder.
35. It shall be in this connection apposite to refer to the judgement of Supreme Court in Peteti Subba Rao vs. Anumala S. Narendra-(2002) 10 SCC 427 wherein it was held that the Court can admit such instrument only on payment of deficit stamp duty with 10 times of the penalty suggested as a way out. It was further held that when a person is not willing or cannot afford to pay the same, the only available course open for the Court to adopt is the one envisaged in Section 38 of the Stamp Act (analogous to Section 42 of the Rajasthan Stamp Act). The (28 of 30) [CWs-15760/15 & 6437/13] following discussion made by the Supreme Court in para 6 of the report is worth quoting:
"6.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx We find some force in the said plea. In a case where the party fails to pay the penalty suggested by the court the document impounded has to be sent to the Collector for the purpose of taking further steps in respect of that document as provided in Section 40 of the Act. The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (16 of 20) [CW-25010/2025] amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned."
36. The Supreme in Chila Kuri Gangulappa vs. Revenue Divisional Officer-(2001) 4 SCC 197 also similarly held that if the appellant agrees to remit the amount of stamp duty and the penalty, the Court can proceed with the trial after admitting the document in evidence. If, however, he is unwilling to do so, the Court shall forward original of the document itself to the Collector for the purpose of adjudicating the question of deficiency of the stamp duty. The following observation in para 13 of the report, are worth quoting:
"13.In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the court is to forward the original of the document itself to the (29 of 30) [CWs-15760/15 & 6437/13] Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (17 of 20) [CW-25010/2025] what should be the proper amount of penalty to be imposed."
37. In the light of the discussion aforesaid, the third question whether on production of unstamped document, the Court is duty bound to determine the stamp fee along with penalty, as per Section 35(1) of the Act or to impound the same under Section 33 of the Act and send the same to the Collector for determination of stamp duty and penalty in order to make the document admissible, is answered in the terms that if any instrument is presented before the Court, which is not duly stamped or insufficiently stamped, the Court is duty bound to impound the same and; (i) if the party who produces such instrument in evidence is willing to pay the stamp duty or deficit stamp duty together with amount of penalty, to determine the same and upon deposit of the amount, so determined, with the Court, it shall be open for the Court to admit the instrument in evidence, or; (ii) in the event, however, the party which produces such instrument does not agree or is unable to remit the amount of stamp duty/deficit stamp duty and the penalty, the Court shall send the impounded instrument to Collector for determination of stamp duty and penalty, which shall be, only upon production/receipt of the certificate/endorsement of deposit thereof, received in evidence. "
17. In view of the observations made in the said judgment, this Court finds that a clear error has been committed by the learned Trial Court in passing the order dated 14.10.2025 and in refusing to exercise its jurisdiction under Section 35 of the Stamp Act. The error so committed by the learned Court below is very much apparent on the face of record and the reasoning given by the learned Trial Court is running contrary to the law already settled by Hon'ble Apex Court as well as Division Bench of this Court.
18. Although, counsel for the respondents has referred to the judgment passed in the case of Ganpat Mal Dhariwal (supra) and (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (18 of 20) [CW-25010/2025] Jagdish Vishwakarma (supra), however, this Court finds that the same relates to the issue of admissibility of an unregistered document even for collateral purpose. The counsel for the respondents has referred to Para 33 of the judgment passed in the case of Ganpat Mal Dhariwal which is quoted below:-
"I am in respectful agreement with the law laid down by this court in the aforesaid decision and hold that the trial court was wrong while it held on 22.05.76 that the document is receivable even for collateral purposes. Thus, the document Ex.A1 could not have been received in evidence even for collateral purpose."
19. So also the counsel for the respondents relied upon Paras 7 and 8 of judgment passed in the case of Jagdish Vishwakarma (supra) which reads as under :-
"I find that the order passed by the Court below which is impugned in this petition is not sustainable in the eyes of law, accordingly the order dated 08.07.2023 (Annexure P-1) passed by the Civil Judge Class-II, Bijawar, Chattarpur in pending civil suit i.e. R.C.S. No. 6/2018 is set aside. However, counsel for the plaintiff is at liberty to move appropriate application before the court below for refund of the stamp which is already paid by him for the purpose of impounding the sale deed that too as per the order of the trial court. If any application is moved the court below shall consider and decide the same in accordance with law."
20. This Court finds that the said judgments are relating to the issue of admissibility of a document for collateral purpose, which is necessarily required to be registered. This Court is of the opinion that even if the document in question, i.e., mortgage deed dated (Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (19 of 20) [CW-25010/2025] 06.06.1976, is being impounded or sent for determination of Stamp Duty, then also the objection with regard to its admissibility in evidence for collateral purpose will survive to the respondents- plaintiffs and the same can be raised and decided at an appropriate stage. This Court is of the opinion that the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments and it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The mandate of the provisions of Stamp Act cannot be by passed merely on the basis of the objections regarding admissibility of document in evidence, which can be decided at appropriate stage.
21. In view of the said discussion, the order dated 14.10.2025 is quashed and set aside. The application preferred by the petitioner- defendant under Section 35 of Stamp Act (Annexure-3) is allowed. The learned Trial Court is directed to impound the document in question and to send for determination of the deficit Stamp Duty following the provisions of Stamp Act. It is made clear that all the objections regarding admissibility of the said document in evidence for any purpose will remain open to the respondent- plaintiff, which can be raised at an appropriate stage and the same will be decided by the learned Trial Court strictly in accordance with law.
22. In view of the aforementioned directions, the writ petition is allowed.
(Uploaded on 31/01/2026 at 07:17:32 PM) (Downloaded on 06/02/2026 at 07:51:37 PM) [2026:RJ-JD:3267] (20 of 20) [CW-25010/2025]
23. Stay application and all other pending applications, if any, stand disposed of accordingly.
(SANJEET PUROHIT),J 36-nishantk/-
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