Madhya Pradesh High Court
Nathulal vs Ramesh on 30 July, 2018
W.P. No.7622/2016 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.7622/2016
Kailashchandra & Anr v/s Ramesh & Ors
Indore, dated 30.07.2018
Shri A.S. Garg, learned senior counsel along with Ms.
Megha Jain, learned counsel for the petitioners.
Shri Sameer Athawale, learned counsel for the
respondent No.1.
The petitioners before this Court have filed this present petition being aggrieved by the order dated 08.11.2016 (Annexure-P/1) passed by the Civil Judge, Class-II, Sardarpur District-Dhar in Civil Suit No.193-A/2014.
Learned senior counsel for the petitioner has argued before this Court that respondents/plaintiffs have preferred a civil suit in respect of agricultural land bearing Survey No.1934 area 0.941 hectare and the residential house situated at village-Ledgaon, Tehsil-Sardarpur, District-Dhar and the claim was made on the basis of a partition deed. An application was preferred under Section 151 of the Code of Civil Procedure challenging the admissibility of the partition deed and as it was not a registered document, the trial Court has rejected the application.
Shri Garg, learned senior counsel has straight away drawn the attention of this Court towards partition deed dated 25.09.1993 as well as the plaint. Paragraph-4 of the of the plaint and the same reads as under:-
" ;g fd oknh rFkk izfroknh dz0 1] 2] 3] 5]6 tks fd ,d gh ifjokj ds lnL; gksdj izfroknh d01 eqf[k;k gksdj lHkh fgUnq ifjokj ds lnL;x.k gSA izfroknh dz01 dh iRuh v;ks/;kcknbZ dh e`R;q 10@12@2000 dks gks x;h gSA lHkh fgUnq la;qDr ifjokj ds lnL; ds e/; ifjokj dh laifRr dk ikfjokfjd vkilh cVokjk fnukad 29@5@1993 dks gks x;k rFkk vius vius fgLls cVokjs dh laifRr dk mi;ksx lHkh us vyx vyx dj vkilh cVokjk 29@51993 dk ikyu lHkh W.P. No.7622/2016 2 ifjokj lnL;ksa us fd;k gSA vkSj nkfo;k laifRr tks cVokjs esa oknh ds fgLls esa vk;h] blds vykok vU; Hkwfe xzke ysMxkWo losZ dz01935 jdck 0-742 gS A o 1939 jdck 0-575 gSA Hkwfe ftldk dqy jdck 1-317 gS yxku 6-50 iSls dh Hkwfe tks fd vkilh cVokjs esa oknh dks izkIr gqbZ Fkh ml ij okn dk ,ddh LokfeRo dh tkudkjh esa fnukad 8@3@2007 dsk fodz; dj nh gSA vkSj 'ks"k nkfo;k laifRr tks okmnh dks fnukad 29@5@1993 dks gq;s vkilh cVokjs esa izkIr gqbZ mldk fookn gSA 'ks"k laifRr dk dksbZ fookn ugha gSASA "
Similarly, he has drawn the attention of this Court towards the amendment made in the plaint dated 04.05.2016, which is at page-38-39. Everywhere in the plaint, the deed in question has been referred as partition deed and his contention is that it was not a memorandum of partition, it was a partition deed, and therefore, the learned Judge has erred in law and facts in rejecting his application.
Leaned senior counsel has placed reliance upon a judgment delivered by this Court in the case of Abhiyank Builders Ltd & Another v/s Daulat Singh & Others 2016 (2) MPLJ 450. Paragraph-10 and 13 of the aforesaid judgment reads as under:-
"10. A careful reading of S.35 suggests that - (i) it does not allow any instrument for evidence chargeable with duty, unless the same is duly stamped;
(ii) such instruments shall not be acted upon, registered or authenticated by any person having by law or consent of parties authority to receive evidence or by any public officer, unless such instrument is duly stamped. Therefore, it does not allow any secondary evidence of such instrument for the reason that the original, admittedly chargeable with duty, was not stamped or was insufficiently stamped.
In view of proviso (a) to S.35 of the Act, if the original instrument is actually before the Court of law, the defect of deficiency in stamp, with penalty provision may be ordered to be cured for permission to rely upon the said document. Therefore, secondary evidence, either by way of oral evidence of the contents of unstamped instrument, or, copy of it governed by S.63 of the Evidence Act, would not W.P. No.7622/2016 3 fulfill the requirement of the proviso which enjoins upon the Authority to receive in evidence the original instrument itself and nothing else. Therefore, a party can only be allowed to rely upon a document which is an instrument within the meaning of S.2(14) of the Act for the purpose of S.35 and there is no scope for inclusion of copy of an instrument for the purposes of the Act. Hence, as S.35 deals with original instruments and not their copies, S.36 cannot be interpreted so as to allow secondary evidence of an instrument as the word "Instrument" used in S.36 has the same meaning as in S.35 for the reason that word "Instrument" has been defined in dictionary clause S.2(14) of the Act. Therefore, the exception carved out in S.36 as against the rigor of S.35 is only in respect of such original "instruments" which are insufficiently and unduly stamped and admitted in evidence without objection at the initial stage of suit or proceedings and not otherwise. In other words, if the objection to admissibility of an "instrument" is based upon the same being insufficiently stamped or unstamped, party is required to object to reception of such instrument in evidence when it is first tendered, but, after the instrument is admitted, then at later stages, no objection of that nature can be raised. Applicability of S.36 does not extend to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped (Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 and Hariom Agrawal Vs. Prakash Chand Malviya, AIR 2008 SC 166, referred to)."
13. True it is that the Division Bench has allowed the respondents-plaintiffs to prove the existence and contents of the agreement to sale dated 3/8/2006, but the aforesaid liberty is always subject to statutory provisions as contained under S.35 of the Act and the law laid down by the Apex Court in the case of Jupudi Kesava Rao (Supra), as clearly the observations/directions of the Division Bench are in the realm of Evidence Act. The Evidence Act, under various chapters, deals with matters as to how facts are to be proved and which facts need not be proved. Section 59 of the Evidence Act lays down that all facts except contents of documents can be proved by oral evidence. S.61 of the Evidence Act provides that contents of the documents can be proved either by primary evidence or secondary evidence. However, the Indian Evidence Act does not purport to deal with admissibility of W.P. No.7622/2016 4 documents in evidence which are required to be stamped under the provisions of the Indian Stamp Act. The document in question is copy of agreement to sale. The agreement to sale is an "Instrument" as defined under S.2(14) of the Act chargeable with stamp duty, as provided for under Article 5 of Schedule I-A of the Act. Therefore, the rigor of S.35 of the Act has full application to the document in question i.e. copy of the unstamped agreement to sale. Hence, the order of the Division Bench has to be understood subject to provisions of S.35 of the Act. As laid down by the Apex Court in Jupudi Kesava Rao (Supra) wherein it is held that S.35 shuts out from evidence any instrument chargeable with duty unless it is duly stamped and shuts out any secondary evidence of such instrument when the original admittedly chargeable with duty was not stamped or insufficiently stamped. Therefore, the secondary evidence, either by way of oral evidence of the contents of unstamped document or copy of it governed by S.63 of the Indian Evidence Act, will not fulfill the requirement of the proviso which enjoins upon the Authority to receive nothing in evidence except the instrument itself. S.35 of the Act is not concerned with the copy of the "Instrument" and a party can only rely on a document which is instrument for the purposes of S.35 of the Act. Therefore, the trial Court was not justified having accepted the secondary evidence of unstamped agreement to sale dated 3/8/2006 while rejecting the objection raised under S.35 of the Act. Further, the fact that petitioners defendants had cross-examined the plaintiff on the copy of agreement to sale and the same was marked as exhibit, shall not dilute the rigor of S.35 with the help of provision of S.36 of the Act, for the reason that exception carved out in S.36 is in relation to "Instrument" defined under S.2(14) of the Act and not copy thereof."
The contention of learned senior counsel for the petitioner is that in light of the aforesaid judgment, as the instrument is chargeable with duty and unless it is duly stamped, such instrument cannot be looked into.
On the other hand, Shri Sameer Athawale, learned counsel for the respondents has placed reliance upon a judgment delivered in the case of Seema Gupta (Smt.) v/s W.P. No.7622/2016 5 Smt. Radha 2017 (II) MPWN 67 and his contention is that unregistered document of partition can be used for collateral purposes.
This Court has carefully gone through the judgment relied upon by learned counsel for the parties. Undisputedly, the instrument in question is certainly not a memorandum of partition, it is a partition deed. The petitioner himself has admitted in the plaint that it is a partition deed, and therefore, stamp duty was required to be paid keeping in view the Indian Stamps Act, Schedule 1-A Item No.(52) and the same has not been done.
Resultantly, the application preferred under Section 151 of the Code of Civil Procedure stands allowed and the impugned order dated 08.11.2016 (Annexure-P/1) is hereby set aside.
With the aforesaid, the present writ petition stands allowed.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.08.01 18:21:42 +05'30'