Andhra HC (Pre-Telangana)
Meda Anjamma And Anr. vs Vikram China Veeraiah And Ors. on 3 March, 2006
Equivalent citations: 2006(2)ALD710, 2006(2)ALT699, 2007 (1) AIR JHAR R (NOC) 3 (A. P.) = (2006) 2 ANDH LT 699
ORDER V.V.S. Rao, J.
1. The petitioners are the plaintiffs. Aggrieved by order, dated 25-7-2003, in O.S. No. 27 of 1995, they filed the present civil revision petitioner under Article 227 of Constitution of India.
2. The first petitioner is the wife of second petitioner, and is daughter of the first respondent. The petitioners filed the suit being O.S.No.27 of 1995 on the file of the Court of the Principal Junior Civil Judge, Addanki for declaration of title and for injunction in respect of items 1 to 3 of suit schedule property. Item 1 is the land to an extent of Acs.0.80 and items 2 and 3 are the lands to an extent of Acs.0.60 each. These agricultural lands are identified by patta No. 26 in survey No. 359 admeasuring Acs.5.59 (total extent). At the time of the trial, the plaintiffs sought to mark an agreement of sale, dated 4-4-1979, executed in their favour by respondents 1 to 3 (defendants 1 to 3). An objection was raised by the Counsel for defendants 4 to 107 respondents 4 10 herein on two grounds, namely, the document offered as evidence is a sale deed and as it is improperly stamped the same cannot be admitted in evidence; and secondly, being a sale deed, in the absence of registration, it cannot be marked as evidence. By impugned order, the trial Court came to a conclusion that the suit document, which was sought to be marked as Ex.A.1 cannot be marked, as it is not registered and not properly stamped.
3. The learned Counsel for the petitioners, Sri V.L.N.G.K. Murthy, submits that when the nature of the document is to be found out, the Court is required to refer to the averments and clauses in the document and any reference to the pleadings is impermissible. Secondly, he submits that when an objection is raised for marking a document as evidence, the Court has to mark such document recording the objection and at the stage of trial, permission to mark the document cannot be refused unless an objection is raised regarding improper stamp duty. Thirdly, he submits that the document, dated 4-4-1979, executed by respondents 1 to 3 herein in favour of the petitioners is the document, which records the gift given by the first respondent in favour of first petitioner at the time of marriage, and is an agreement of sale requiring the vendors to execute proper sale deed later and therefore the stamp duty paid is proper.
4. Learned Counsel for the respondents 4 to 10, Mr. Adinarayana, submits that his clients filed suit for possession in O.S. No. 194 of 1971 on the file of the Court of the District Munsif, Addanki, which was dismissed but the Sub-Court, Ongole, in A.S. No. 12 of 1982 allowed the appeal and decreed the suit for possession. When the contesting respondents filed E.P.No.5 of 1995, the petitioners filed the suit O.S. No. 27 of 1995 in collusion with respondents 1 to 3 by creating false document. He submits that under the disputed document, the entire right, title and interest of respondents 1 to 3 passed to the petitioners and therefore being a sale deed, the same cannot -be received as evidence for want of registration. The learned Counsel also submits that under the same document, item 1 was gifted by respondents 1 to 3 in favour of the first petitioner, and unless and until it is properly stamped and registered being a gift deed, the same cannot be registered as evidence.
5. Section 3 of the Indian Stamp Act, 1899 (Stamp Act, for brevity) is a charging section and requires the instruments enumerated therein chargeable with duty of the amount indicated in the schedule as proper duty thereof. Section 35 of the Stamp Act mandates that an instrument chargeable with duty cannot be admitted in evidence by any person having authority to receive evidence if such instrument is not properly/duly stamped. Section 36 of the Stamp Act further postulates that when an instrument is admitted in evidence, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. In the case of an instrument, which is not sufficiently stamped, the law provides for procedure to validate such insufficiently stamped documents by collecting the deficient stamp duty as well as penalty. Therefore, when an objection is raised regarding the admissibility of a document in evidence for want of proper stamp duty, the Court or public authority having power to receive evidence has to decide the question of stamp duty at the stage of receiving the document because when once the document is received, the same cannot be challenged at later stage in a suit or proceeding. The same is not however the case with regard to the registerable unregistered documents.
6. Section 17 of Registration Act mandates and enumerates certain documents, which shall have to be registered necessarily. Section 49 of the Registration Act contains the consequence of non-registration of the document and is to the effect inter alia that no document required by Section 17 to be registered shall affect any immovable property comprised therein and can be received as evidence unless it has been registered. The exception, however, is in the case of the document affecting immovable property, which can be received as evidence of contract in a suit for specific performance under Chapter n of Specific Relief Act, 1877 or as evidence of collateral transaction not required to be effected by registered instrument. Except these two provisions, there is no provision in the Registration Act, adverting to the question of admissibility of an unregistered document. If an unregistered document is received as evidence, the parties to the suit or proceeding can always urge at the time of final hearing regarding the admissibility of the document for reasons more than one including the ground that being unregistered it is inadmissible as evidence. But, in the case of improperly stamped or unstamped document being offered as evidence in a suit, the Court has to necessarily decide as and when objection is raised because when once unstamped document is admitted in evidence, at a later stage, the question of inadmissibility cannot be raised. It is no doubt true that conventionally the Courts in common law jurisdictions decided questions of admissibility of documents at the stage of trial, whether objection is regarding proper stamp duty or registration. This procedure would certainly results in delaying the trial and therefore the Supreme Court directed to substitute this practice by better one to help acceleration of trial proceedings.
7. In Bipin Shantilal v. State of Gujarat 2001 (1) ALD (Crl.) 548 (SC) : (2001) 3 SCC 1, the appellant was arrested on 8-11-1993 in connection with seizure of huge quantity of 2000 kg of mandrex tablets. The Directorate of Revenue Intelligence (DRI), Ahmedabad filed a complaint against the appellant for various offences under Narcotic Drugs and Psychotropic Substances Act, 1985. The arrestee was detained in a prison. Though the trial commenced before the Special Court on 4-9-1996, for years did not reach finality. The appellant unsuccessfully moved High Court of Gujarat for bail on the ground of delay in the trial. Challenging High Court's refusal of bail, special leave petition was filed before the Supreme Court. The Supreme Court noticed that the defence Counsel questioned admissibility of certain documents and after hearing the objections, the trial Court stopped the proceedings for lengthy period to enable the defence to take up the matter before the High Court. In that background, the Supreme Court laid down that except in the case of objection relating to deficiency of stamp duty, the trial Court during evidence taking stage, can mark all the documents making a note of any objection regarding admissibility. The Apex Court also held that if an objection is raised regarding stamp duty, the question has to be decided before proceeding further presumably having regard to Section 36 of the Stamp Act. The Supreme Court also pointed out that such procedure has two advantages, namely, the time for trial would not be wasted by raising such objections and secondly, the appellate Court can determine the correctness of the view taken by the trial Court, if appeal or revision is filed against the final judgment. Such practice would not cause any prejudice to the parties to the litigation as pointed out by the Supreme Court. The following observations are apposite in this context, (paras 13 and 14 of SCC) It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fallout of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of mat evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so railed is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) (emphasis supplied)
8. Before proceeding further with this case, it is also necessary to point out that when the nature of document is to be analysed either with reference to Stamp Duty or Registration, the Court has to look to the recitals of the document and any reference or reliance on the pleadings in the case would amount to gave error on the face of record (See V.L. Narasimha Rao v. K.T. Pentaiah and Chintan Kantam v. Dulipudi Venkateswara Rao ). In this case, there is no denial before this Court that the trial Court has referred to the pleadings on record for deciding the nature of the document and this itself is a ground warranting interference under Article 227 of Constitution of India.
9. As noticed supra, the trial Court decided on the question of stamp duty and also the question of Registration. As per the decision of the Supreme Court in Bipin Shantilal v. State of Gujarat (supra), the objection by the defendants 4 to 10 need not detain at this stage. The document sought to be marked by the petitioners as Ex.A.1 can be received in evidence recording the objections, and the lower Court can decide the matter as to the evidentiary value and/or admissibility at the time of hearing. Insofar as the question of stamp duty is concerned, the document sought to be marked is dated 4-4-1979 and at the relevant time, the stamp duty for an agreement of sale being Rs. 5/-. Hence, the trial Court cannot refuse to receive the same in evidence. Therefore, the finding of the trial Court that it is improperly stamped cannot be accepted, but the question whether it amounts to sale deed or sale agreement has to await the trial in the suit.
10. In the result, the civil revision petition is accordingly disposed of directing the trial Court to receive the disputed document as evidence, proceed further with the trial and dispose of the suit within a period of three months from the date of receipt of copy of this order keeping in view the observations made hereinabove with regard to admissibility of the documents.