Andhra HC (Pre-Telangana)
Vajrala Ramesh And Anr. vs Vajrala Narayana Setty And Anr. on 24 January, 2005
Equivalent citations: 2005(2)ALD597, 2005(3)ALT1
ORDER D.S.R. Varma, J.
1. Heard both sides.
2. This civil revision petition is directed against the order, dated 22-7-2002, passed by the Principal Senior Civil Judge at Kurnool, rejecting the request of the petitioners herein to admit the alleged agreement, dated 19-2-1997, in evidence.
3. The petitioners are the plaintiffs and the respondents are the defendants in the suit.
4. For the sake of convenience, the parties will be referred to as per their array in the suit.
5. The only question that falls for consideration in this civil revision petition is as to whether a document, which is the very basis of the filing of the suit, is a deed of partition or an agreement to partition and what is the effect of non-registration and insufficient stamp duty of such document?
6. The suit is filed for specific performance of alleged agreement of partition deed, dated 19-12-1997, directing the defendants to execute a registered partition deed along with the plaintiffs, conveying the plaint schedule property to the plaintiffs, otherwise, to have the same through process of the Court.
7. The plaintiffs filed the suit for specific performance (which is detailed as above) on the strength of a deed, which is allegedly an agreement for partition entered into in the year 1997.
8. During the trial, when the said document was sought to be marked, it was objected to by the defendants on two grounds; firstly that the said document was not registered and secondly that the same was insufficiently stamped and hence not admissible in evidence.
9. The Court below, after considering the whole issue and also considering the contents of the said document, held that the disputed document was attracted by Section 17 of the Registration Act, 1908 (for brevity "the Registration Act"), and also hit by the provisions of the Indian Stamp Act, 1899 (for brevity "the Stamp Act"), as the said document was insufficiently stamped. Eventually, the Court below held that the said document was inadmissible in evidence.
10. Challenging the said judgment and decree of the Court below, the present civil revision petition has been filed.
11. Apparently, as found by the Court below, the disputed document was objected to for admission in evidence on both the infirmities allegedly suffered by the document under the Registration Act as well as the Stamp Act.
12. Insofar as the first aspect is concerned i.e., whether the disputed document is attracted by Section 17 of the Registration Act or not is concerned, the Court below has recorded a finding that it was a deed of partition and hence the same is inadmissible.
13. Apropos the second objection i.e., regarding the infirmity suffered by the disputed document under Section 35 of the Stamp Act, it was found by the Court below that as per Section 2(15) of the Stamp Act, the disputed document is an instrument of partition and hence the same was liable to stamp duty under Article 40 of Schedule-I A of the Stamp Act.
14. Insofar as the first objection is concerned, it is to be examined as to whether the disputed document, on construction, is to be held as only a partition deed, in which event would attract the provisions of the Registration Act, or only an agreement of partition, which does hit by Section 17 of the Registration Act.
15. The Court below, however, had gone into the merits of the case, after going into the contents of the disputed document, and the intention of the parties while reading the import of the language employed in the said document and held that it was in fact a deed of partition but not an agreement of partition. Eventually the Court below held that it was compulsorily registered under Section 17 of the Registration Act and accordingly the same is inadmissible.
16. The Apex Court in State v. Navjot Sandhu, , at Paragraph Nos.13, 14 and 15, observed thus:
"Paragraph No.13: 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 the 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.
Paragraph No. 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).
Paragraph No. 15: The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence-taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
17. In fact, in the said judgment of the Apex Court, since their Lordships have relied on the earlier judgment of the Apex Court in Bipin Shantilal Panchal v. State of Gujarat, 2001 (1) ALD (Crl.) 548 (SC) = (2001) 3 SCC 1, there is no need to extract the observations therein once again.
18. From a conjoint reading of the abovesaid two decisions of the Apex Court, the real position that emerges is as under:
"In order to avoid duplicity and multiplicity of the proceedings, it is always expedient for the Courts to receive the document subject to objection (by recording such objection) and decide the said issue after the trial is completed, of course, after framing an appropriate issue regarding the objection and admissibility of any disputed document."
19. It is to be further noted that it may happen, sometimes, basing on the oral evidence of the parties also, the nature of the document would have to be decided inasmuch as the intention of the parties in executing the document and the language employed in it, the Court may have to arrive at a conclusion. Just by mere reading of a document and the contents of the document, it may not be possible for the Courts to arrive at a right conclusion always. Therefore, it is always desirable to receive such a document as and when an objection had been taken, decide the same after the trial.
20. In the instant case, it is to be further noted that it is the document on which the suit was instituted. In other words, if this document was not available to the plaintiffs, there could not have been either any suit of the present nature or the nature of the suit would have been something else. Therefore, when this document is the very foundation for institution of the suit, such a document has to be more carefully dealt with before arriving at a conclusion as to whether the same is admissible or not.
21. Yet another question that flows from the impugned order wherein it was held that the disputed document is inadmissible for want of registration tantamounts to making the suit totally emaciated, ineffective and also virtually dismissing the suit since the very foundation of the suit was slashed.
22. Hence, in the light of the judgments, State v. Navjot Sandhu and Bipin Shantilal Panchal v. State of Gujarat, (supra) and also for the reasons aforementioned, I am of the view that the Court below ought to have adopted the method suggested by the Apex Court in the above referred judgments i.e., by way of receiving the document and also recording the objection, framing an issue in that regard and record a finding after taking into consideration the overall circumstances including the oral evidence.
23. Accordingly, I hold that the impugned order insofar as the finding of the Court below that the disputed document was not registered and hence inadmissible in evidence is liable to be set aside and accordingly the same is set aside.
24. A propose the second finding recorded by the Court below that the disputed document had suffered from another infirmity i.e., insufficiently stamped and that the document was liable to be stamped under Article 40 Schedule-I A of the Stamp Act is concerned, at the outset, I am of the considered view that the Court below erred in recording a finding that the disputed document was insufficiently stamped and hence it is inadmissible in evidence.
25. Section 35 of the Stamp Act postulates that the instruments not duly stamped inadmissible in evidence, subject to certain conditions.
26. Section 33 of the Stamp Act enables every person in charge a of public office except an officer of a police, before whom any instrument is presented, shall if it appears to him that such instrument is not duly stamped, impound the same.
27. Section 38 of the Stamp Act, which deals with the procedure after impounding, postulates that as and when an instrument was impounded under Section 33, the same shall be sent to the Collector, an authenticated copy of such instrument, together with a certificate in writing, indicating the amount of duty and penalty levied in respect thereof, and also shall send such amount to the Collector, or any person authorized.
28. Sections 39 and 40 of the Stamp Act deals with the power of the Collector consequent upon the procedure adopted under Section 33 or Section 38.
29. A Division Bench of this Court in Chintalapudi Annapurnamma v. Audukuri Punnayya Sastry, (DB), (to which I am one of the party) held that though the Court has the power to impound the document, shall follow the further procedure on an application made by the person who tries to introduce an instrument for admission in the suit proceedings, had no other option except to send the same to the Collector or any other authorized officer, in which event the situation would be in the realm of the Collector under Section 39 of the Stamp Act.
30. From the above, it could be seen that the defect of the document, either unstamped or insufficiently stamped, can be cured either by the Court by impounding and levying the duty along with penalty on its own or if the party to the suit requires the document to be sent to an authorized officer under the Stamp Act i.e., the Collector for levying the duty along with penalty to send the document to such officer. Therefore, this defect can otherwise be called as 'curable defect'. Consequently the admission of such a defective document under the Stamp Act depends much upon the steps taken by the Court or the person who tries to introduce the document in order to mark the same in the evidence.
31. To put it in a different way, a document, which suffers from the infirmity under the Stamp Act, does not remain as inadmissible document forever and the same is subject to further steps initiated by the Court or taken by the person who tries to introduce the said document in evidence.
32. In the judgment in State v. Navjot Sandhu case (supra) the Apex Court at Paragraph No. 14, as extracted above, made it clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection first before proceeding further.
33. Therefore, as suggested by the Apex Court, insofar as the controversy with regard to the registration aspect is concerned, I am of the view that the same is expedient to be decided by the Court during the trial, after framing an issue suitably, after receiving the same, recording the objection.
34. Further, regarding the other objection, the Court below has no other option except to record a finding regarding the deficiency of stamp duty, but to record a finding before proceeding with the trial any further.
35. Coming to the case on hand, it is to be noticed that the Court below had recorded a finding that the disputed document was insufficiently stamped and was liable to be stamped under Article 40 Schedule-I-A of the Stamp Act, and consequently did not permit the plaintiffs to introduce the same into evidence.
36. Further, it is to be seen that whether the document, which was sought to be introduced in evidence, was classified as an agreement to partition or a deed of partition as such is included in the definition of Sub-section 15 of Section 2 of the Stamp Act, in which event Article 40 Schedule I-A of the Stamp Act may have to be applied.
37. Therefore, to this extent, the Court below was right in recording the finding that the disputed document was insufficiently stamped, but, however, in my considered view the Court below was in error in stopping at that stage without proceeding further. In other words, the document was not impounded as contemplated under Section 38(1) of the Stamp Act.
38. As already noticed, the procedure under Sections 33 and 38 of the Stamp Act ought to have been followed by the Court below. Such further procedure includes the right of a person who tries to introduce die document into evidence, to make an application to the Court to send the document to the authorized officer under the Stamp Act for the purpose of levying the duty along with penalty.
39. Apparently, no such procedure was adopted by the Court below. In other words, it is not sufficient for the Court below to just record a finding that the disputed document is insufficiently stamped and consequently holding that it is inadmissible in evidence. The further procedure ought to have been followed since, as already pointed out in the preceding paragraphs, that such a defect is a curable defect. Such a defect could have been cured either by the Court below itself invoking the provisions under Sections 33 and 38 of the Stamp Act or allowing the parties to cure the defect on their own.
40. For the foregoing reasons, as already pointed out, the Court below is directed to receive the disputed document in evidence after recording the objection and to frame an issue and record a finding taking into account the contents of the disputed document and also the oral evidence of the parties.
41. It is further directed that the Court below shall follow the procedure envisaged under Sections 33 and 38 of the Stamp Act when it recorded a finding that the disputed document was insufficiently stamped and proceed with the trial further.
42. For the foregoing reasons, the impugned order is liable to be set aside and the same is set aside.
43. In the result, the civil revision petition is allowed, subject to the directions indicated above. However, there shall be no order as to costs.