Madras High Court
R.Kalyani vs T.Rose Mukundakumar on 27 February, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :27.02.2014 CORAM THE HON'BLE MR JUSTICE K.KALYANASUNDARAM C.R.P.(NPD).1573 of 2010 and M.P.No.1 of 2010 1.R.Kalyani 2.R.Shyam Kumar 3.R.Santosh Kumar ... Petitioners vs. T.Rose Mukundakumar ... Respondent Civil revision petition preferred under Article 227 of the Constitution of India, against the order dated 21.11.2009 passed by the III Assistant Judge, City Civil Court, Chennai, in I.A.No.14434 of 2009 in O.S.No.4156 of 2007. For Petitioners : Mr.V.Raghavachari for M/s.N.R.Rajagopalan For Respondent : Mr.S.Sounthar for M/s.A.Arun Babu ORDER
Inveighing the order, dated 21.11.2009, passed by the III Assistant Judge, City Civil Court, Chennai, in I.A.No.14434 of 2009 in O.S.No.4156 of 2007, this civil revision petition has been filed.
2.The petitioners herein are the plaintiffs, in O.S.No.4156 of 2007, on the file of the III Assistant Judge, City Civil Court, Chennai. They had filed a suit for permanent injunction, restraining the defendant, his men and agent from, in any way, interfering with their peaceful possession and enjoyment of the suit property, contending that they are the joint owners of the property.
3.The case of the petitioners is that the suit property originally belonged to Mr.Devadass @ Ramadoss, who is the husband of the first petitioner and father of petitioners 2 and 3 herein. He settled the property in favour of the plaintiffs, by a settlement deed, dated 13.4.2007 and delivered possession to them. The respondent is attempting to encroach upon their property and interfering with their peaceful possession and enjoyment of the property. Hence the suit.
4.The respondent contested the suit stating that the suit property was purchased by his mother Mrs.Arputham, by way of a sale deed, dated 27.7.1998, and she has been in possession and enjoyment the suit property. So, the defendant prayed for dismissal of the suit.
5.During the course of evidence, on behalf of the defendant, one witness was examined as D.W.1 and through him, the defendant had marked the sale deed as Ex.B1. Since the sale deed was insufficiently stamped, the petitioners objected to the marking of the same. However, the learned Judge, over ruled the objection and permitted the defendant to mark the document as Ex.B1. Subsequently, the petitioners filed an application, in I.A.No.14434 of 2009, to impound the sale deed, marked as Ex.B1, on the ground that the document was written on a stamp paper of Rs.10/- and it was also not registered before any authority. The respondent resisted the application and the learned trial Judge dismissed the application. Challenging the said order, the present revision is filed.
6.Heard Mr.V.Raghavachari, learned counsel appearing on behalf of the petitioners and Mr.S.Sounthar, learned counsel appearing on behalf of the respondent.
7.The learned counsel for the petitioners submitted that the petitioners had rightly objected to the marking of the insufficiently stamped sale deed when it was tendered, but the learned trial Judge, without judicially determining the objection raised, then and there, simply permitted the respondent to mark the said document. The learned counsel further submitted that as per Section 33 of the Indian Stamp Act, when an insufficiently stamped document is produced, the Court, who is an authority to receive it, ought to have impounded the document and even for collateral purpose, the document cannot be permitted to be marked. The learned counsel placed reliance on the judgments of the Honourable Apex Court as well as this Court reported in (i)(2001) 1 M.L.J. 1, (ii)(2009) 3 M.L.J. 409 (SC), (iii) (1978) 3 SCC 236, (iv) (2013) 2 L.W.350 (v) (2008) 5 CTC 577, (vi) (2000) 3 LW 785, (vii) (2003) 8 SCC 752, (viii) (2009) 2 SCC 532 (ix) (2006) 11 SCC 331.
8.Per contra, the learned counsel for the respondent submitted that the trial Court has rightly dismissed the application taking into consideration of the fact that the document was already marked and the suit was in a part heard stage; that the trial Court has not outrightly rejected the request of the petitioner, but held that at the time of final disposal of the suit, direction could be made for impounding the document. Hence, the impugned order need not be interfered with, by this Court, in the revision.
9.Before considering the issue involved in the revision petition, I would like to refer to the relevant provisions of the Indian Stamp Act and the judgments of the Honourable Apex Court as well as High Courts, emerged thereunder.
10.Sections 33, 35 and 36 of the Stamp Act are usefully extracted hereunder:
"Sec.33.Examination and impounding of instruments (1)(2) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his function, shall if it appears to him that such instrument is not duly stamped, impound the same.
(b) Notwithstanding anything contained in Section 31, but without prejudice to the provisions of clause (a), the Collector before whom any instrument is brought under Section 31 for determining the duty with which the instrument is chargeable, shall, if it appears to him that such instrument is not duly stamped, impound the same.
Provided that nothing contained in this clause shall be deemed to authorise the Collector to impound any instrument which has not been executed but is brought to him under section 31 for determining the duty with which the instrument is chargeable or any instrument which he is authorised to endorse under Section 32.
(2) For the purpose, every such person and the Collector shall examine every instrument so chargeable and so produced or coming or brought 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 India 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 XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (Act V of 1898);
(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.
(3)For the purposes of this Section, in case 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 in charge of public offices.
Sec.35.Instrument 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 not being an instrument chargeable with a duty not exceeding twenty paise only or a mortgage of crop (Article 41(a) of Schedule I) chargeable under Section 3 with a duty of fifty paise 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 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 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 any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (Act 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.
Sec.36.Admission of instrument where not to be questioned Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
11.In the judgment reported in (1968) 1 M.L.J.249-Yasodammal v. Janaki Ammal, a Division Bench of this Court has held as follows:
"......But in the case of an unstamped document it has been held that as the prohibition contained in Sec.35 of the Stamp Act is wide and absolute even though in the pleadings the contesting party may admit the execution of the unstamped document, no relief could be granted on the basis of the admission, as it would amount to acting upon the unstamped document."
12.Relying upon the judgment referred supra, another Division Bench of this Court, in (2001) 1 M.L.J. 1 A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and Others, has held that if a family arrangement, which is compulsorily registrable, is not stamped, then the same cannot be looked into for any purpose, including for collateral purpose.
13.In AIR 1961 SC 1655 Javer Chand and Others vs. Pukhraj Surana, the Honourable Apex Court has held that when the document tendered is insufficiently stamped, on the other side raising objection to the marking of the document, the question has to be decided then and there when the document is tendered in evidence. Once the Court decides to admit the document in evidence, the matter is closed so far as the parties are concerned. The Court has to determine the matter judicially since the document is tendered in evidence and before it is marked as an exhibit in the case.
14.In the judgment reported in AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another), the Honourable Supreme Court has held that if objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further and for all other objections, the procedure suggested in paragraph No.14 can be followed. Paragraph No.14 of the judgment is usefully extracted hereunder:
"14.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 raised 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)
15. In Hemendra Rasiklal Ghia etc. vs. Subodh Mody, etc., 2008 (5) CTC 577 wherein the Full Bench of the Bombay High Court had an occasion to answer as to whether "it is necessary for the Court to decide about the admissibility of the documents before they are exhibited in evidence". The Full Bench, after considering the principles laid down in the cases of (i)Javer Chand and Others vs. Pukhraj Surana AIR (1961) SC 1655, (ii) Bipin Shantilal Panchal vs. State of Gujarat and another-AIR 2001 Supreme Court 1158, (iii) Ram Ratan vs. Bajarang Lal AIR 1978 1978 SC 1393, has concluded as under:
"72. In the first case, the Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case, as held by the Constitution Bench in Zaver Chand v. Pukhraj Surana (supra) Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order. such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. Similar view is expressed by the Supreme Court in the case of Bipin Shantilal Panchal (supra); wherein it is made clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further.
73. In the case of Ram Ratan v. Bajarang Lal (supra) the Apex Court reiterating the above view has observed that the Court, as of necessity it would be trial Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. So the objection relating to deficiency of duty cannot be raised or decided at the later stage of the suit. It has to be decided there and then unless taken on record subject to objection so as to avoid the rigour of section 36 of the Stamp Act.
. . . . . . .
. . . . . . .
92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:
Answer to Question-A : --------------------
As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit; (ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit; (iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time."
16.In (2006) 11 SCC 331 Shyamal Kumar Roy vs. Sushil Kumar Agarwal, the Honourable Apex Court has held that if a document is received subject to objection, it is only tentatively marked and in such situation, Section 36 of the Indian Stamp Act would not be attracted. It was held that the party objecting to the admissibility of the document must raise an objection so as to enable the trial Judge to determine the issue upon application of his judicial mind, at the appropriate stage.
17.In (2006) 4 MLJ 706 Karuppannan v. Thavasiappan and another, in that case, the plaintiff attempted to mark the release deed, which was insufficiently stamped and unregistered. When the defendant raised objection, for marking of the said document, the trial Court rejected the release deed to be marked as an exhibit, on the ground that it was insufficiently stamped and unregistered. The order was challenged before this Court, on the ground that an insufficiently stamped document can be marked subject to payment of deficit Stamp duty and the penalty. In those facts, this Court (S.Rajeswaran,J.) has held as follows:
"9. It is well settled in law that even an unregistered document can be admitted as an evidence as the same can be looked into for collateral purpose. At the same time the admissibility of the unregistered document is not automatic if the same is not duly stamped. If the revision petitioner is willing to pay the deficit stamp duty as well as the penalty on the same, the unregistered release deed dated 14.8.1994 may be admitted as evidence and the trial court thereafter to apply its mind as to the merits of the admissibility of the document irrespective of the fact whether the document is registered or unregistered document is also admissible for collateral purpose.
10. In the present case, the trial court clearly erred in law in refusing to mark the document as an Exhibit solely on the ground that it is an unregistered and inadequately stamped document. Therefore I am inclined to interfere with the order of the trial court dated 28.1.2005."
18.In (2009) 3 MLJ 409(SC) Avinash Kumar Chauhan v. Vijay Krishna Mishra, the Honourable Apex Court, after considering Sections 33, 35 and 36 of the Indian Stamp Act, has held that there is a statutory obligation on all the authorities to impound the document, which is not duly stamped and that the Court, being an authority to receive a document in evidence, is bound to give effect thereto.
19.Keeping the above provisions of law and the principles laid down in the judgments cited supra, if we consider the present case, indisputably, the petitioners had raised objection with regard to the admissibility of the sale deed Ex.B1, when it was tendered in evidence on the ground that it was insufficiently stamped and unregistered one. The trial Court permitted the respondent to mark the sale deed Ex.B1, over ruling the objections raised by the petitioners, however, without considering the said objections judicially. In the light of the judgments referred to supra, the learned trial Judge, ought to have considered the objections, raised by the petitioners, judicially, before permitting the defendant/respondent to mark the document. Hence, the reasoning given by the trial Court that the direction for impounding the document, for paying the deficit stamp duty, would arise only at the time of final disposal of the suit, cannot be sustained.
20.In similar situation, this Court in the judgment reported in 2007-4-L.W.342 Dinakaran vs. Venkaesan and 3 Others, had directed the trial Court to ascertain the stamp duty and penalty payable upon the disputed document, then call upon the defendants who wanted to rely on the document to pay the stamp duty and penalty and then, on payment of stamp duty and penalty, admit the document in evidence, whether it is for collateral purpose or otherwise. But however, the admissibility of the document can be decided by framing necessary issues at the later stage while hearing the case. Paragraph Nos.17 and 18 of the judgment are usefully extracted hereunder:
"17. Therefore it is clear that no document shall be admitted in evidence if it is not properly stamped, and if already not stamped, then stamp duty should be paid with penalty as prescribed by the authority. As far as the present case is concerned, it is alleged that the plaintiff himself admitted the existence of the koorchit in his evidence. As rightly held by the trial court unless the document is marked, there will not be any opportunity for the plaintiff to oppose and cross examine the defendants on the execution of the said koorchit. In the absence of payment of the stamp duty with penalty, the trial court has committed an error in marking the document. Hence, the order of the trial court is liable to be modified.
18. In the result, this CRP is allowed in part and the order of the trial court is modified. The trial court is directed to ascertain the stamp duty and penalty payable upon the disputed document, then call upon the defendants who want to rely on the document, to pay the stamp duty and penalty, and then on payment of stamp duty and penalty, admit the document in evidence, whether it is for collateral purpose or otherwise, and admissibility of the same can be decided by framing necessary issue at the later stage while hearing the case as guided by the Apex Court in Bipin Shantilal Panchal V. State of Gujarat and another (2001) 3 SCC 1. Consequently, connected MP is also dismissed. No costs."
21. In 2001-3-L.W.113 (S.C.)-Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and another, the Honourable Apex Court has decided the course to be adopted by the Courts, when the un-stamped and unregistered documents are filed. In that case, an agreement for sale was filed and the trial Judge, impounded it and forwarded the instrument to Revenue Divisional Officer, for the purpose of taking further action on it. The Revenue Divisional Officer instead of considering the procedure under Section 38 of the Stamp Act, decided the issue under Section 47-A of the Stamp Act. The Honourable Apex Court found that the procedure was not correct and has held as follows:
"12.It is clear from the first sub-section extracted above that the Court has a power to admit the document in evidence, if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the Court chooses to admit the document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped "he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof".
13.In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial Court. 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 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 what should be the proper amount of penalty to be imposed.
14.In as much as none of the above proceedings had been adopted by any of the authorities including High Court, we set aside the impugned orders. We direct the Munsif to consider first whether the document is insufficiently stamped and if he finds that question in the affirmative, he has to adopt the next step indicated above."
(emphasis supplied)
22.As per Section 33 of the Indian Stamp Act, a duty is cast upon the authority before whom, insufficiently stamped document is produced, to impound the same. In the light of the judgments of the Honourable Apex Court and this Court, cited supra, the document not duly stamped cannot be looked into for any purpose, including for collateral purpose. In the case on hand, the petitioners had raised objection well before the document was permitted to be marked.
23.In view of my discussion above, the impugned order is set aside with a direction to the III Assistant Judge, City Civil Court, Chennai, to dispose of the petition in I.A.No.14434 of 2009, in the light of the judgment of the Honourable Apex Court reported in 2001-3-L.W.113 (S.C.)-Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and another and this Court in 2007-4-L.W.342 Dinakaran vs. Venkaesan and 3 Others.
24.The civil revision petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Msk 27.02.2014 Index:Yes/No Internet:Yes/No To The III Assistant Judge, City Civil Court, Chennai K.KALYANASUNDARAM,J. Msk C.R.P.(PD).1573 of 2010 27.02.2014