Rajasthan High Court - Jaipur
Vedprakash Rathor S/O Shri Harikishan ... vs Munshiram S/O Khyaliram on 1 November, 2019
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6307/2019
1. Vedprakash Rathor S/o Shri Harikishan Rathor, Aged
About 55 Years, By Caste Sahu Rajput, R/o Delhi Road,
Alwar.
2. Smt. Darshan Rathor W/o Shri Vedprakash Rathor, By
Caste Sahu Rajput R/o Delhi Road, Alwar.
----Petitioners
Versus
1. Munshiram S/o Khyaliram, By Caste Jattav, R/o Village
Khudanpuri, Tehsil And District Alwar.
2. Laxman S/o Keshriya, By Caste Jattav, R/o Village
Istmurar Tehsil Ramgarh, District Alwar.
3. Naresh Yadav S/o Dhandiram Yadav, By Caste Yadav, R/o
Foji Colony, Manaka Road, Alwar.
4. Ramesh Chand S/o Giraj Prasad, By Caste Yadav, R/o 32,
Nehru Nagar Alwar Teshil And District Alwar.
5. Nathiram S/o Sukhdev, By Caste Jattav, R/o House No.
27, Jattav Basti, Village Sadwada Patti Tehsil Nager,
District Bharatpur.
----Respondents
For Petitioner(s) : Mr. Mohit Gupta
For Respondent(s) : Mr. Rahul Kanwar
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
01/11/2019
1. This writ petition has been filed by the petitioner challenging
the order dated 12.02.2019 whereby the application submitted by
the defendant for not allowing the petitioner-plaintiff to mark
exhibit on the documents i.e. agreement to sell submitted by the
plaintiff-petitioner, was allowed and also against the order dated
13.03.2019 whereby the agreement to sell was ordered to be kept
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in D part of the file while allowing the application submitted by the
defendant.
2. Brief facts of the case are that the petitioner-plaintiff filed a
suit for specific performance of the contract and during pendency
of the suit , he submitted the agreement to sell before the learned
trial Court and the respondent-defendant raised objection that
since the agreement to sell is not duly stamped, the same cannot
be marked as exhibit and the same be kept in D part of the file.
Both the applications were allowed by the trial Court vide orders
dated 12.02.2019 and 13.03.2019. Hence, the present writ
petition has been filed by the petitioner-plaintiff against the order
dated 12.02.2019 and 13.03.2019.
3. Counsel for the petitioner submitted that the court was duty
bound to send the document to the Collector Stamps for the
purpose of stamp duty.
4. In support of his contention, counsel relied upon the
judgment passed by the Coordinate Bench of this Court in the
matter of Batti lal Vs. Manmohan & Ors. passed in S.B. Civil
Writ Petition No.8508/2008 wherein it has been held as under:-
"1. By way of this writ petition, the petitioner assails
the order dated 05/08/2008 passed by the learned
trial court whereby the document Exhibit-1 produced
during evidence has been rejected with direction to
remove from the list of exhibits, holding the same to
be inadmissible in evidence.
2. Learned counsel appearing for the plaintiff-
petitioner submits that an agreement was executed
on 20/03/2004 between the plaintiff-petitioner and
the defendants-respondents for sale of land of Khasra
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No.3424 and 4888 for a sum of Rs.85,000/- on a
stamp paper of Rs.100/- and the same was duly
attested. It was agreed that the sale deed would be
registered within an year and with the condition that
in case the sale deed is not exhibited and registered,
the defendants-respondents shall pay to the
plaintiffpetitioner a sum of Rs.1,70,000/-. An amount
of Rs.60,000/- was paid and the remaining amount of
Rs.25,000/- was to be paid by 26/03/2004. The land
was however not sold to defendantsrespondents no.3
& 4 and thus, the plaintiff-petitioner filed a suit
seeking decree of specific performance of contract and
for declaring the sale deed dated 16/09/2004 as void
and further to restrain the defendants-respondents
from disturbing peaceful possession of the plaintiff-
petitioner on the land which was handed over to him.
It was further prayed for granting a decree of specific
performance of contract.
3. By the order impugned, the learned trial court held
that the document dated 20/03/2004 was, in-fact, a
sale and was written on a deficit stamp duty of
Rs.1,01,750/- and therefore, could not be read in
evidence as Exhibit-1.
4. Learned counsel for the plaintiff-petitioner submits
that the learned trial court has fallen in error in
holding the document to be inadmissible in evidence.
As per proviso to Section 49 of the Registration Act,
1908, any unregistered sale deed was admissible in
evidence in a suit for specific performance of contract.
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Learned counsel further submits that in terms of
Section 35 and 36 of the Indian Stamps Act, 1899,
the Stamps Act is fiscal measure. He relied on the law
laid down by the Supreme Court in S. Kaladevi Vs.
R. Somasundaram and ors.: AIR 2010 (SC) 1654
and Indralal & Anr. Vs. Saligram & Anr.: (2011)
2 RLW (J) 1007 to submit that at best the document
could be impounded with directions of payment of
penalty as provided under Section 39 or the duty as
provided under Section 41 of the Rajasthan Stamps
Act, 1998.
5. Per-contra, learned counsel appearing for the
defendantsrespondents submits that in view of
Section 35 of the Indian Stamps Act, 1899, since the
document was not duly stamped, it could not be
admissible in evidence and would also not be
admissible for collateral purpose. He relied on the
judgment in Avinash Kumar Chauhan Vs. Vijay
Krishna Mishra: 2009 DNJ (SC) 364 to support the
order passed by the learned trial court. Learned
counsel also relied on the order passed by coordinate
Bench of this Court in Girdhari and others Vs.
Kalyan Prasad and others (SB Civil Writ Petition
No.9601/2010), decided on 25/10/2018.
6. Heard the submissions advanced by learned
counsel for both the parties.
7. The plaintiff-petitioner had filed a suit
for specific performance of an agreement
and cancellation of the subsequent sale
deed. In terms of the document
(agreement), the plaintiffpetitioner had
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admittedly paid a sum of Rs.60,000/- and
has also entered into possession while the
remaining amount of Rs.25,000/- was to
be paid and the sale deed was to be
registered which the defendants-
respondents had refused and the suit has
been file for seeking such a prayer. In
terms of Section 53-A of the Transfer of
Property Act, 1882, the documents
containing fact of transferring of
immovable property and having given
possession thereto, is necessarily required
to be registered under Section 17 of the
Registration Act, 1908. However, Section
49 proviso of the Registration Act, 1908
makes a departure and provides as under:-
"49. Effect of non-registration of
documents required to be registered.--
No document required by section 17 1 [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 (3 of 1877) 2 , 3 *** or as evidence
of any collateral transaction not required to
be effected by registered instrument.]"
8. The aforesaid provision came up for consideration
before the Supreme Court in the case of S. Kaladevi
Vs. R. Somasundaram and ors. (supra) and the
Apex Court held as under:-
"11. The main provision in Section 49
provides that any document which is
required to be registered, if not registered,
shall not affect any immovable property
comprised therein nor such document shall
be received as evidence of any transaction
affecting such property. Proviso, however,
would show that an unregistered document
affecting immovable property and required
by 1908 Act or the Transfer of Property Act,
1882 to be registered may be received as
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an evidence to the contract in a suit for
specific performance or as evidence of any
collateral transaction not required to be
effected by registered instrument. By virtue
of proviso, therefore, an unregistered sale
deed of an immovable property of the value
of Rs. 100/- and more could be admitted in
evidence as evidence of a contract in a suit
for specific performance of the contract.
Such an unregistered sale deed can also be
admitted in evidence as an evidence of any
collateral transaction not required to be
effected by registered document. When an
unregistered sale deed is tendered in
evidence, not as evidence of a completed
sale, but as proof of an oral agreement of
sale, the deed can be received in evidence
making an endorsement that it is received
only as evidence of an oral agreement of
sale under the proviso to Section 49 of
1908 Act."
9. Thus, it is in cases relating to suit for specific
performance that a departure is allowed and even an
unregistered document of sale of an immovable
property of value of Rs.100/- and more may be
admitted in evidence.
10. Apparently, the law makers carved out this
exception as it is not within the power of the plaintiff
to get an instrument registered unilaterally and he
comes to the Court for specific perforamance seeking
payer to direct the defendant to get the sale deed
registered.
11. However, in Avinash Kumar Chauhan Vs. Vijay
Krishna Mishra (supra), while examining Section 49
of the Registration Act, 1908 vis-a-vis Section 35-A of
the Indian Stamps Act, 1899, the Apex Court held
that Section 35 of the Indian Stamp Act, 1899 rules
out applicability of Section 49 of the Registration Act,
1908 as it is categorically provided therein that a
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document of this nature shall not be admitted for any
purpose whatsoever. It relied on two judgments
passed by the Andhra Pradesh High Court. Section
35(a) of the Indian Stamps Act, 1899 reads as
under:-
"35. Instruments not duly stamped
inadmissible in evidence, etc.........
.......
(a) any such instrument not being a receipt, or a bill of exchange or promissory note, shall, subject to all just exceptions, 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 a sum equal to ten times the amount of the proper duty or deficient portion;"
12. Thus, in view of above, it is clear that although such a document which is not properly stamped shall not be admitted in evidence. However, if the insufficient stamp defect is removed on payment of proper stamp duty and penalty thereon, such a document shall be admitted in evidence.
13. Similarly, Section 39 of the Rajasthan Stamp Act, 1998 provides as under:-
"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 (Downloaded on 07/06/2021 at 01:23:11 AM) (8 of 10) [CW-6307/2019] 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.]
(b) Where a contract or agreement of any kind is affected 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."
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14. Section 42 of the of the Rajasthan Stamps Act, 1998 prescribes the procedure to deal with the impounded instruments and therefore, a conjoint reading of the provisions results in a inirresistible conclusion that if a party is ready to pay such a duty and penalty which is found to be deficient, the document has to be admitted in evidence after depositing thereof.
15. In view of above, the order impugned passed by the learned trial court deserves to be set aside and the case is remanded back to the learned trial court for taking appropriate action in terms of Section 42 of the Rajasthan Stamp Act, 1998 and the other provisions of the Stamp Act.
16. Accordingly, the order passed by the learned trial court dated 05/08/2008 is quashed and set aside with direction to the learned trial court to impound the document following the provisions under Section 39(d) and 42 of the Rajasthan Stamps Act, 1998 and the document be allowed to be admissible in evidence on getting such deficiency removed.
17. The writ petition is accordingly allowed. No costs."
5. Counsel for the respondent has not disputed the law laid down by the Coordinate Bench of this Court in the matter of Batti Lal (supra).
6. In view of the above, the order impugned passed by the trial Court dated 12.02.2019 is set aside as well as the order dated 13.03.2019 so far as it relates to keeping the agreement to sell Exhibit 30 & 31 in Part-D of the court file is also set aside. The (Downloaded on 07/06/2021 at 01:23:11 AM) (10 of 10) [CW-6307/2019] matter is remitted back to the trial Court with a direction to impound the document following the provisions under Sections 39(d) and 42 of the Rajasthan Stamps Act, 1998 and the documents be allowed to be admissible in evidence on getting such deficiency removed.
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