Madhya Pradesh High Court
Jagdish Vishwakarma vs Smt. Julekha Ahmed on 3 October, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 WP No.4209 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 3rd OF OCTOBER, 2023
MISC. PETITION No. 4209 of 2023
BETWEEN:-
JAGDISH VISHWAKARMA S/O SHRI LADLE
VISHWAKARMA, AGED ABOUT 35 YEARS,
1.
OCCUPATION: FARMER R/O WARD NO. 9, SATAI,
TEHSIL BIJAWAR, DISTRICT CHHATARPUR (M.P)
RAM KISHORE VISHWAKARMA S/O SHRI LADLE
VISHWAKARMA, AGED ABOUT 32 YEARS,
2.
OCCUPATION: FARMER R/O WARD NO.9 SATAI
TEHSIL BIJAWAR DISTRICT CHHATARPUR (M.P)
.....PETITIONER
(BY SMT. TULIKA GULATEE -ADVOCATE)
AND
SMT. JULEKHA AHMED W/O SIRAJ AHMED,
AGED ABOUT 60 YEARS, OCCUPATION: FARMER
1.
R/O VILLAGE SATAI, TEHSIL BIJAWAR,
DISTRICT CHHATARPUR (M.P)
ISRAAR AHMED S/O SIRAJ AHMED, AGED
ABOUT 30 YEARS, OCCUPATION: FARMER
2.
VILLAGE SATAI TEHSIL BIJAWAR DISTRICT
CHHATARPUR (M.P)
CHIEF MUNICIPAL OFFICER NAGAR
3. PANCHAYAT SATAI TEHSIL BIJAWAR DISTRICT
CHHATARPUR (M.P)
.....RESPONDENTS
(BY SHRI MOHD. RIYAZ -ADVOCATE FOR RESPONDENT NO.1
AND 2, SHRI ARVIND KUMAR PATHAK -ADVOCATE FOR
RESPONDENT NO.3 )
This petition coming on for admission this day, the court passed the
following:
ORDER
Parties agree to argue this matter, accordingly, it is finally heard.
Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 2 WP No.4209 of 20232. This petition filed under Article 226 of the Constitution of India assailing 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. As per the order passed the trial court, the document that is said to be a sale deed dated 10.02.1985, which was unregistered document produced during the course of evidence, but an objection was raised by the defendant about admissibility of the said document and also raised an objection that the document needs to be registered because the value of property, which is subject matter of the sale deed was more than Rs.100/-. The Court has taken cognizance of the same and observed that if document is not properly stamped as per section 49 of Evidence Act, the same cannot be taken into evidence. Although, plaintiff in response to objection raised by the respondent, requested the Court that the said document can be sent to the Collector of Stamps for impounding and after getting it impounded, the same can be taken on record, it become admissible. The Court has accepted the request, taking note of section 17 of the Registration Act, 1908 and also took note of section 49 of the Evidence Act observing that the sale deed dated 10.02.1985 is not registered and also not properly stamped. The objection raised by the defendant is accordingly rejected, directing that the said document i.e sale deed dated 10.02.1985 be sent for proper stamping and it can also be taken into evidence for collateral purpose.
3. However, counsel for the petitioner submits that the unregistered documents which was required to be registered as per section 17 of the Registration Act, 1908 cannot be taken into evidence for collateral purpose. She has also placed reliance on order dated 04th July, 2022 passed by this Court in W.P No.7581 of 2017 (Manish Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 3 WP No.4209 of 2023 Singh Malukani & others Vs. Hari Prasad Gupta & others).
4. Counsel for the respondent no.1 and 2 opposed the submissions made by counsel for petitioner and submits that the petition deserves to be dismissed for the reason that prior to passing of order dated 08.07.2023 directing the document i.e sale deed dated 10.02.1985 can be used for collateral purpose on evidence has already impounded and that order has not been brought into knowledge of the Court and petitioner has also not challenged that order of the Court, therefore, at this stage, challenging the said sale deed saying that it is not properly stamped is not proper on the part of the petitioner/defendant. He submits that under such circumstance, the Court did nothing wrong and rightly allowed the application and permitted plaintiff to use the said sale deed for collateral purpose.
5. I have heard submissions made by the parties and also perused the record. From the order of the Court, which is impugned in this petition, it is clear that there is no mention about impounding document sale deed 10.02.1985, which was undisputedly unregistered document. First of all the sale deed dated 10.02.1985 did not get registered within the time as per section 23 of the Registration Act, 1908. The said document cannot be sent for impounding and it is merely a piece of paper, if any order has been passed by the Court sending the said document to the Collector of Stamp for impounding. The said order of the Court does not make the sale deed valid and even after impounding the said document, does not get a shape of the sale deed, which can be used in evidence for collateral purpose. The sale deed, which was unregistered dated 10.02.1985 in my opinion is merely a piece of paper that can't be sent for impounding and even Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 4 WP No.4209 of 2023 otherwise putting stamp over there, which was required at the time of getting the said document registered, the said document cannot be validated and cannot be given a shape of sale deed even by the Collector of Stamps.
6. Section 23 of the Registration Act, 1908 clearly provides the period under which it is required to be registered otherwise not. Section 23 of the Registration Act reads as under:-
Section 23 in The Registration Act, 1908
23. Time for presenting documents.--Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy a of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.
7. Admittedly, in the present case, the sale deed dated 10.02.1985 has never been put for registration within given time as per section 23 of the Act of 1908. Accordingly, the said document cannot be registered after such long period and merely because the Court has sent the said document for impounding the sale deed cannot be considered to be a sale deed or registered sale deed in the eyes of law. Under such a circumstance, and the view taken by this Court in case of Manish (supra), which reads as under:-.
"6. The Privy Council in AIR (33) 1946 Privy Council 51 [Ram Rattan v. Parma Nand] while dealing with Section 35 of the Act, 1899 has observed that the words 'for any purpose' include collateral purpose and held that unstamped deed of partition cannot be used to corroborate oral evidence as to factum of partition. The Privy Council Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 5 WP No.4209 of 2023 has observed as under:-
"The words 'for any purpose' in S.35, Stamp Act, should be given their natural meaning and effect and would include a collateral purpose. Where an unstamped document is admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the Statute has prohibited. Consequently an unstamped partition-deed cannot be used to corroborate the oral evidence for the purposes of determining even the factum of partition as distinct from its terms."
7. The Supreme Court in a case reported (2009) 2 SCC 532 [Avinash Kumar Chauhan Vs. Vijay Krishna Mishra] after considering the provisions of Section 35 of the Act, 1899 has observed that any document if not duly stamped is inadmissible even for collateral purpose. The Supreme Court in the aforesaid case after considering the case of Bondar Singh (supra) in paragraph-23 has observed as under:-
"23. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh [(2003) 4 SCC 161] this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined : (SCC p. 163, para 5) "5. The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land was not illegal or unauthorized"Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 6 WP No.4209 of 2023
Further, the Supreme Court in the said case in paragraphs-24 to 29 has observed as under:-
"24. In the present case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. (See Pandey Oraon v. Ram Chander Sahu [1992 Supp (2) SCC 77] and Amrendra Pratap Singh v. Tej Bahadur Prajapati [(2004) 10 SCC 65].) The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under:
"49. Effect of non-registration of documents required to be registered.--
No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall
--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
25. 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.
26. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parma Nand [(1945-46) 73 IA 28 : AIR 1946 PC 51] wherein it was held :
(AIR p. 52) "[That] the words 'for any purpose' in Section 35 of the Stamp Act, should be given their natural meaning and effect and would include a collateral purpose [and that] an Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 7 WP No.4209 of 2023 unstamped partition deed cannot be used to corroborate the oral evidence for the purposes of determining even the factum of partition as distinct from its terms." The said decision has been followed in a large number of decisions by the said Court.
27. In Bhaskarabhotla Padmanabhaiah v. B. Lakshminarayana [AIR 1962 AP 132] it has been held : (AIR p. 134, para 9) "9. In this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in Ram Rattan v. Parma Nand [(1945-46) 73 IA 28 : AIR 1946 PC 51] Their Lordships of the Privy Council held that the words 'for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms."
It was furthermore held : (Bhaskarabhotla case [AIR 1962 AP 132] , AIR p. 134, para 10) "10. In the result, I agree with the learned Munsif Magistrate that the document is 'an instrument of partition' under Section 2(15) of the Stamp Act and it is not admissible in evidence because it is not stamped. But, I further hold that if the document becomes duly stamped, then it would be admissible in evidence to prove the division in status but not the terms of the partition."
28. In Sanjeeva Reddi v. Johanputra Reddi [AIR 1972 AP 373] it has been held : (AIR p. 375, para 9) "9. While considering the scope of Section 35 of the Stamp Act we cannot bring in the effect of non-registration of a document under Section 49 of the Registration Act. Section 17 of the Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 8 WP No.4209 of 2023 power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purpose, it would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in B. Rangaiah v. B. Rangaswamy [(1970) 2 AnWR 181] which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document, one a settlement in favour of the fourth defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Section 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matter would not at all be chargeable under the Act as in the case before him."
29. In T. Bhaskar Rao v. T. Gabriel [AIR 1981 AP 175] it has been held : (AIR p. 177, para 5) "5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence. Proviso (a) to Section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (a) to Section 35 are complied with. It follows that if the requirements of proviso (a) to Section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence."
Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 9 WP No.4209 of 2023It was further held : (Gabriel case [AIR 1981 AP 175], AIR p. 177, para 7) "7. 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."
(See also Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chandra [AIR 1968 All 164] and Chandra Sekhar Misra v. Gobinda Chandra Das [AIR 1966 Ori 18].)"
The Supreme Court again in a case reported in (2014) 1 SCC 618 [Omprakash Vs. Laxminarayan and others] after considering the scope of Section 35 of the Act, 1899 with regard to inadmissibility of a document not duly stamped has observed as under:-
12. Section 2(10) of the Act reads as follows: "2. Definitions.--In this Act, unless there is something repugnant in subject or context--
* * * (10) Conveyance.--'Conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I;"
13. From a plain reading of the aforesaid provision, it is evident that an instrument by which movable or immovable property is transferred, comes within the expression "conveyance". In the present case, an immovable property is transferred on payment of part of the consideration and handing over the possession of the property.
14. It is relevant here to state that by the Stamp (Madhya Pradesh Second Amendment) Act, 1990 (22 of 1990) a few articles including Article 23 of Schedule 1-A have been substituted and Explanation has been added to Article 23. The Explanation appended to Article 23 of Schedule 1-A of the Stamp Act as substituted by Section 6 of Act 22 of 1990 reads as follows:
Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 10 WP No.4209 of 2023"Explanation.--For the purpose of this article, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser before execution or after execution of, such agreement without executing the conveyance in respect thereof then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly:
Provided that, the provisions of Section 47-A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section:
Provided further that where subsequently a conveyance is effected in pursuance of such agreement of sale the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance, subject to a minimum of Rs 10."
The aforesaid Explanation has come into effect with effect from 26-9-1990. The Explanation, therefore, creates a legal fiction. The agreement to sell shall be deemed to be a conveyance and stamp duty is leviable on an instrument whereby possession has been transferred. Thus the agreement to sell in question is a conveyance within the meaning of Section 2(10) of the Act and is to be duly stamped.
15. Section 35 of the Act makes instruments not duly stamped inadmissible in evidence, the relevant portion whereof reads as follows:
"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 Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 11 WP No.4209 of 2023 duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;"
16. From a plain reading of the aforesaid provision, it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. 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. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence."
8. In a case reported in I.L.R. [2013] M.P., 2904 [Malti Bai (Smt.) Vs. Smt. Khilona Bahu & ors.], this Court after considering the scope of Section 35 of the Act, 1899 has observed as under:-
"12. Now, I may advert to document (Exhibit P-2) dated 6.1.1986. The aforesaid document is written on plain paper. It is neither stamped nor registered. It is executed by Ratanlal i.e. Karta of the family. Under the said document, possession of two acres of land comprised in khasra number 68 has been given to the plaintiff on 6.1.1986 i.e. on the day of execution of the document. The document has been styled as an agreement. In Ram Rattan v. Parama Nand, AIR 1946 PC 51 while construing the words 'for any purpose' in Section 35 of the Act, it was held that words 'for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. Similar view has been taken by the Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532. In view of the aforesaid enunciation of law, even if the document (Exhibit P-2) is treated to be an 'instrument', 'agreement' or 'settlement', the same cannot be read in evidence for any purpose and thus, the entire foundation of the claim of the plaintiff collapses. Accordingly, the 6th substantial question of law is answered in the negative and against the appellant."Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 12 WP No.4209 of 2023
9. Recently, this Court in a case reported in 2022 (1) M.P.L.J. 315 [Gangashankar Dubey Vs. Sindhu Bai and others] after taking note of Section 35 of the Act, 1899 and also of Sections 17 and 49 of the Registration Act, 1908 has observed as under:-
"8. In order to resolve the controversy, it is appropriate to extract the relevant provisions of Sections 17(1)(b) and 49 of the Act of 1908 which read as under :
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- (a) xxxxxxx;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) xxxxxxx;
(d) xxxxxxx;
(e) xxxxxxx;
49. Effect of non-registration of documents required to be registered.--No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 13 WP No.4209 of 2023
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument."
9. Hon'ble Supreme Court in the case of K.R.Saha and Sons Pvt. Ltd. Vs. Development Consultant, reported in 2008 MPLJ Online (SC) 20=2008 (8) SCC 564, with regard to admissibility of unregistered document, has held as under :
1. A document required to be registered, if unregistered, is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which, the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, any right, title or interest in immovable property of value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
10. Further, the Hon'ble Supreme Court in the case of Avinash Kumar Chauhan (supra) has held that an unstamped or insufficiently stamped document cannot be admitted in evidence for any purpose including for collateral purposes. However, such document can be received in evidence on payment of deficit duty and penalty in terms of Section 35 of the Indian Stamp Act 1899.
11. In order to deal with different propositions, it may be safely concluded in the light of the above legal position as Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 14 WP No.4209 of 2023 under :
(i). The admissibility of a particular document in evidence is to be adjudged in light of the relevant provisions of the Act of 1908 as well as of the Indian Stamp Act 1899.
(ii). As per the provisions of Sections 17 and 49 of the Act of 1908, an unregistered document which is compulsorily registerable cannot be admitted in evidence except in a suit for specific performance of contract or as evidence of any collateral transaction, not required to be effected by registered instrument.
(iii). The collateral purpose for which, unregistered document is intended to be tendered in evidence, must be `independent of' or `divisible from' the very object and purpose of such document for which, it is executed.
(iv). No unregistered document which is compulsorily registerable can be admitted in evidence in the name of collateral purpose which would essentially tend to affect the right, title and interest of the parties for which, such document is executed;
(v). An unstamped or insufficiently stamped document which is required to be stamped cannot be admitted in evidence for any purpose including collateral purpose. However, such document can be tendered in evidence after payment of deficit stamp duty and penalty as adjudicated by Collector (Stamps) under the provisions of The Indian Stamp Act 1899 subject to it's admissibility under the provisions of the Act of 1908;
(vi). If an unregistered document which is compulsorily registerable is found to be inadmissible in evidence under Section 49 of the Act of 1908, the same cannot be admitted in evidence even if, it is duly stamped as per the Indian Stamp Act, 1899."
10. In view of the aforesaid enunciation of law, I am of the opinion that the case relied by learned counsel for the petitioner so also the submission advanced would not help him for the reason that the Supreme Court in number of cases has held that as per Sections 17 and 49 of the Registration Act, 1908 and as per Section 35 of the Act, 1899, if Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM 15 WP No.4209 of 2023 any document is unstamped or unregistered, the same is inadmissible and cannot be used even for collateral purpose.
11. In such circumstances, the impugned order passed by the trial Court does not suffer from any illegality or irregularity which warrants any interference in a petition filed under Article 227 of the Constitution of India.
12. Thus, the petition filed by the petitioners being sans merit, is hereby dismissed."
8. 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.
9. With the aforesaid, this petition is allowed.
(SANJAY DWIVEDI) JUDGE tarun/ Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 10/5/2023 5:10:37 PM