Madhya Pradesh High Court
Smt. Santosh Singh vs Shri Manoharlal Sheetalani on 9 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:2341
1 MP-7195-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 9 th OF JANUARY, 2026
MISC. PETITION No. 7195 of 2025
SMT. SANTOSH SINGH AND OTHERS
Versus
SHRI MANOHARLAL SHEETALANI AND OTHERS
Appearance:
Shri Satish Kumar Dawra - Advocate for the petitioners.
Shri M.R. Choudhary - Panel Lawyer for the State.
ORDER
The present petition has been filed by the petitioners defendants challenging the order dated 28.11.2025 passed by the trial Court, whereby application by the defendants No.1 to 3 under Section 64 of BSA 2023 has been rejected.
2. The trial Court has rejected the application under Section 64 BSA on the ground that the petitioners want to lead the secondary evidence of the document, which is a photocopy of unregistered and un-stamped agreement to sale dated 14.10.2019. The trial Court has held that the photocopy indicates that the agreement seems to be written on the stamp paper of Rs.100/- and the said agreement has the contents of the same being for 15251 square feet of land and advance amount of Rs.1.00 crores to have been given in terms of the said agreement. The trial Court has held that though registration of the agreement is not essential, but payment of due Stamp Duty Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 2 MP-7195-2025 is essential and as per the Stamp Duty payable in State of Madhya Pradesh, ad valorem fees @ 1% is payable whereas the agreement is written on stamp paper of Rs.100/-. The trial Court has held that an un-stamped document is not admissible for any purpose, i.e. either for real purpose or for collateral purpose and a photocopy cannot even be impounded by the Court for payment of proper stamp duty and therefore, on these grounds has rejected the application under Section 64 of BSA.
3. Counsel for the petitioner had argued that a Division Bench of this Court in M.P. No.7118 of 2023 (Smt. Laxmi Bai & others vs. Mohan Goud) has held that an unregistered document can be looked into for collateral purposes. Further reliance is made on judgement of the Hon'ble Supreme Court in Muruganandam vs. Muniyandi (Died) through LRs passed in Civil Appeal No.6543 of 2025 to contend that an unregistered and un- stamped document can be looked into for collateral purposes and secondary evidence can be given of such document. Therefore, it is argued that the trial Court has erred in not permitting secondary evidence of the said document to be given and has erred in rejecting application under Section 64 of BSA.
4. Upon considering the aforesaid, it is seen that admittedly the document in question is chargeable with the stamp duty of 1% on ad valorem basis. The document is written on stamp paper of Rs.100/- only and it is insufficiently stamped. The trial Court has rightly held that photocopy of document cannot be impounded for payment of deficit stamp duty and once photocopy cannot be impounded, therefore, the deficit stamp duty cannot be made good by resorting to provisions of Indian Stamp Act, 1899 and once a Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 3 MP-7195-2025 insufficiently stamped document is not admissible, therefore, there is no purpose in entertaining application under Section 64 BSA in the matter of secondary evidence of the photocopy of the said document.
5. The reliance placed on the judgement of the Division Bench in the case of Laxmi Bai (Supra) is utterly misconstrued, because in the said judgement the Division Bench only considered the effect of unregistered document of agreement to sale and held that it can be looked into for collateral purposes. The law in that regard is not at all in dispute, because as per proviso to Section 49 of Registration Act, 1908 the same has been provided. Section 49 of Registration Act is 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 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.]"
(Emphasis supplied)
6. The reliance on the case of Muruganandam (supra) also does not help the petitioner, because though in the said case the document seems to be unstamped and unregistered, but the Hon'ble Supreme Court only considered the effect of Section 49 of Registration Act and held that as per Section 49, the document can be received in evidence of a collateral transaction even Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 4 MP-7195-2025 without registration. The Hon'ble Supreme Court in the aforesaid case held as under:-
"11. It is also evident from the plaint that the document dated 01.01.2000 is referred to and in fact a photocopy of the said document is filed along with the plaint. It is the case of the appellant that the document sought to be brought on record is intended only to be used as a proof of the oral agreement of sale and that it is permitted under Section 49 of the Registration Act. Under these facts and circumstances, we are of the opinion that the appellant can be permitted to introduce the said document dated 01.01.2000. We make it clear that we have not expressed any opinion on the contents of the document and it is also open for the respondent/defendant to raise and contest the relevancy and validity of the document as are permissible in law and it is for the Trial Court to consider the submissions and pass appropriate judgment/order as it considers appropriate."
7. The issue that whether unstamped document can be admitted in evidence was considered by the Hon'ble Apex Court in the case of Vijay vs. Union of India and others (2023) 17 SCC 455, in which the Hon'ble Supreme Court while considering the effect of Section 35 of Stamp Act has held that the document not being properly stamped cannot be admitted in evidence for any purpose and to impose the bar of admissibility provided under Section 35, twin conditions are required to be fulfilled, i.e. 1 that the instrument must be chargeable with duty in to that it is not duly stamped. In the present case, the instrument is duly chargeable with duty and that is not disputed by the petitioners and it not being sufficiently stamped is also not disputed. Therefore, in the present case, the judgement in the case of Vijay (supra) would be squarely applicable in which the Hon'ble Apex Court has held as under:-
"19. The sub-issue that the Court is confronting is whether an agreement to sell, handing over possession prior to the amendment brought in the year 1989 or 1990, is a conveyance so as to be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 5 MP-7195-2025 covered under Article 23 as existing on the date of execution of the agreement(s). On this aspect we may only observe that the causal amendment was brought in only in 1990 i.e. prior to the transaction in question. And a three-Judge Bench of this Court in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana [Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351] in considering the scope of an agreement to sell observed thus : (SCC pp. 665-66, paras 18-19) "18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 TPA and will not [Ed. : The Supreme Court in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291, on a harmonious construction of Section 40 Part II and Section 54 TPA and Section 91 of the Trusts Act, 1882, held that the vendee under an antecedent agreement to sell gets a good title in equity despite subsequent attachment of the seller's property, and this equitable proprietary interest created by the antecedent agreement to sell can be enforced in priority over the rights of a subsequent judgment-creditor. The ruling in V.K. Sreedharan case has been followed by the Supreme Court in Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213.The equitable property rights created by an agreement for sale binds the seller and other third persons, except bona fide transferees without notice of the prior agreement for sale. This principle is statutorily recognised in Section 19(b) of the Specific Relief Act, 1963. In respect of an agreement to sell, Section 91 of the Trusts Act, 1882 read with the definition of "trust" in Section 2(c) of the Specific Relief Act, 1963, appears to create a constructive trust in respect of the property which is the subject-matter of the agreement to sell, with the seller/subsequent transferees as constructive trustee holding the legal estate in the sale property on trust for the vendee who is the cestui que of such trust. The vendee is the holder of the beneficial estate in equity in the sale property under such trust.When it is stated that "an agreement to sell immovable property, generally creates a right in personam in favour of the vendee", it would appear that this pertains to the nature of obligations owed by Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 6 MP-7195-2025 the trustee holding the legal title to the property, to the beneficiary who holds the beneficial estate in equity. It is often said that "equity acts in personam" : this probably is with reference to the nature of the obligations owed by the trustee to the beneficiary. However, the beneficial estate created by an agreement to sell, as explained in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291 and Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213, does exhibit a proprietary character, though in equity.Though as clearly held in Suraj Lamp (2), (2012) 1 SCC 656, legal property rights or estates in immovable property can only be transferred by a duly stamped and registered conveyance deed.There is one key difference between legal property rights, estates or interests and equitable property rights, estates or interests. Legal property rights exhibit a complete or total in rem character without exception i.e. they bind the whole world or third parties or subsequent transferees without exception regardless of notice, knowledge or consent. Equitable property rights mirror legal property rights, but exhibit a near complete in rem character i.e. with an exception : equitable property rights bind the whole world or third parties or subsequent transferees except bona fide transferees for consideration without notice of the prior equitable proprietary interests. For a more detailed analysis see the Editorial note in Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246, at pp. 252-256.]] confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A TPA). According to the T.P. Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 TPA enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any [Ed. : The Supreme Court in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291, on a harmonious construction of Section 40 Part II and Section 54 TPA and Section 91 of the Trusts Act, 1882, held that the vendee under an antecedent agreement to sell gets a good title in equity despite subsequent attachment of the seller's property, and this equitable proprietary interest created by the antecedent agreement to sell can be enforced in priority over the rights of a subsequent judgment-creditor. The ruling in V.K. Sreedharan case has been followed by the Supreme Court in Rajender Singh v. Ramdhar Singh, (2001) Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 7 MP-7195-2025 6 SCC 213.The equitable property rights created by an agreement for sale binds the seller and other third persons, except bona fide transferees without notice of the prior agreement for sale. This principle is statutorily recognised in Section 19(b) of the Specific Relief Act, 1963. In respect of an agreement to sell, Section 91 of the Trusts Act, 1882 read with the definition of "trust" in Section 2(c) of the Specific Relief Act, 1963, appears to create a constructive trust in respect of the property which is the subject-matter of the agreement to sell, with the seller/subsequent transferees as constructive trustee holding the legal estate in the sale property on trust for the vendee who is the cestui que of such trust. The vendee is the holder of the beneficial estate in equity in the sale property under such trust.When it is stated that "an agreement to sell immovable property, generally creates a right in personam in favour of the vendee", it would appear that this pertains to the nature of obligations owed by the trustee holding the legal title to the property, to the beneficiary who holds the beneficial estate in equity. It is often said that "equity acts in personam" : this probably is with reference to the nature of the obligations owed by the trustee to the beneficiary. However, the beneficial estate created by an agreement to sell, as explained in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291 and Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213, does exhibit a proprietary character, though in equity.Though as clearly held in Suraj Lamp (2), (2012) 1 SCC 656, legal property rights or estates in immovable property can only be transferred by a duly stamped and registered conveyance deed.There is one key difference between legal property rights, estates or interests and equitable property rights, estates or interests. Legal property rights exhibit a complete or total in rem character without exception i.e. they bind the whole world or third parties or subsequent transferees without exception regardless of notice, knowledge or consent. Equitable property rights mirror legal property rights, but exhibit a near complete in rem character i.e. with an exception : equitable property rights bind the whole world or third parties or subsequent transferees except bona fide transferees for consideration without notice of the prior equitable proprietary interests. For a more detailed analysis see the Editorial note in Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246, at pp. 252-256.]] interest or charge on its subject-matter.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM
NEUTRAL CITATION NO. 2026:MPHC-JBP:2341
8 MP-7195-2025
28. The object of the Stamp Act is to collect proper stamp duty on an instrument or conveyance on which such stamp duty is payable. Section 35 is a provision to cater for the instruments not being properly stamped and, as such, not being admissible in evidence. A document not duly stamped cannot be admitted for any purposes. To impose the bar of admissibility provided under this section, the following twin conditions are required to be fulfilled:
(i) Instrument must be chargeable with duty;
(ii) It is not duly stamped.
29. If the documents sought to be admitted are not chargeable with duty, Section 35 has no application. Thus, in the present case, since the document was dated 4-2-1988, the instrument was not chargeable with duty. It follows therefrom that when such document(s) are not required to be stamped, then no bar could be imposed due to it being not duly stamped.
37. We may now consider Section 35 of the Stamp Act which forbids the letting of secondary evidence in proof of its contents. The section excludes both the original instrument and secondary evidence of its contents if it needs to be stamped or sufficiently stamped. This bar as to the admissibility of documents is absolute. Where a document cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof is equally inadmissible in evidence.
38. In relation to secondary evidence of unstamped/insufficiently stamped documents, the position has been succinctly explained by this Court in Jupudi Kesava Rao [Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, (1971) 1 SCC 545 (two-Judge Bench)] wherein it dealt with an issue i.e. whether reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of Sections 35 and 36 of the Stamp Act and answered it in affirmative. It observed : (SCC pp. 549-50, paras 12-14) "12. The Evidence Act, however, does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Stamp Act. ...
***
13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 9 MP-7195-2025 tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 25 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section
35. "Instrument" is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for the inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
14. If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit."
39. This Court in Hariom Agrawal v. Prakash Chand Malviya [Hariom Agrawal v. Prakash Chand Malviya, (2007) 8 SCC 514] , reiterated the principle laid down in Jupudi Kesava Rao [Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, (1971) 1 SCC 545 (two-Judge Bench)] and observed that : (Hariom Agrawal case [Hariom Agrawal v. Prakash Chand Malviya, (2007) 8 SCC 514] , SCC pp. 519-20, para 10) "10. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899."
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PMNEUTRAL CITATION NO. 2026:MPHC-JBP:2341 10 MP-7195-2025
8. The Hon'ble Apex Court in the aforesaid cases conclusively held that secondary evidence of document not sufficiently stamped cannot be adduced. Subsequently, another Bench of the Hon'ble Supreme Court in Bidyut Sarkar and another vs. Kanchilal Pal (dead) 2024 SCC OnLine SC 2603 has considered the same issue and has held as under:-
"20. The relevant provisions of the Stamp Act, namely, sections 35, 36, 40 and 42 are reproduced hereunder:
"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 any 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 a 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 (5 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.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM
NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 11 MP-7195-2025
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 duly stamped.
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40. Collectors power to stamp instruments impounded.--
(1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being an instrument chargeable [with a duty not exceeding ten naye paise] only or a bill of exchange or promissory note, he shall adopt the following procedure:--
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of 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 five rupees; or, if he thinks fit, [an amount not exceeding] ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees:
Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under section 38, sub-
section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.
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42. Endorsement of instruments in which duty has been paid under sections 35, 40 or 41--
(1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them.
(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 12 MP-7195-2025 stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:
Provided that--
(a) no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;
(b) nothing in this section shall affect the Code of Civil Procedure,1882 (14 of 1882), section 144 clause 3."
21. According to the language of the section 35 of the Stamp Act, instruments not duly stamped would be inadmissible in evidence, and any instrument chargeable with duty would be admissible in evidence only and only if such instrument is duly stamped. The proviso gives illustration as to how the instrument would become admissible upon payment of duty with which it was chargeable or in case of instruments insufficiently stamped, the payment is made to make up such duty along with penalty mentioned therein. It also refers to exceptions where a document could be admissible in evidence under a given situation. As elaborated in clauses (b), (c), (d) and (e) of the proviso, the instrument in question i.e. agreement to sell dated 23.03.1999 does not fall under any exception.
22. Section 36 of the Stamp Act provides for admissibility of an instrument not being questioned if the same had been admitted in evidence on the ground that it is not duly stamped except as provided under section 61 of the Stamp Act. In the present case, the instrument in question was admitted subject to objection as noted in the deposition of the plaintiff (PW-1) and recorded in the order sheet of the Trial Court dated 07.03.2003. As such section 36 of the Stamp Act will not come to the rescue of the plaintiff.
23. Section 40 of the Stamp Act gives power to the Collector to stamp such instruments which have been impounded. The Collector will determine the proper duty payable on such instrument along with penalty as provided in clause (b) of section 41.
24. Section 42 of the Stamp Act provides that when duty and penalty, if any, leviable in respect of any instrument has been paid under sections 35, 40 or 41 upon endorsement by the Collector that such duty has been paid, instrument shall thereupon be admissible in evidence.
25. In the present case, the agreement to sell dated 29.03.1999 was found by the Trial Court to be insufficiently stamped. Consequently, the matter was referred to the Collector for determination of proper stamp duty and any applicable penalty. As per the provisions of Section 42 of the Stamp Act, such a document can only become admissible in evidence after deficiency in stamp duty and the penalty, if any, have been assessed by the Collector, and the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 13 MP-7195-2025 requisite amounts have been paid. Once the deficiency and penalty are cleared, the Collector is required to certify the document by endorsement, indicating that the required duty and penalty have been paid. Only upon such certification can the document be admitted into evidence and acted upon legally.
26. Despite the Trial Court's referral of the matter to the Collector, no determination regarding the deficiency in stamp duty or penalty was made by the Collector under Section 40 of the Samp Act. As a result, the document remains inadmissible in evidence under the express bar imposed by Section 35 of the Stamp Act. Failure to resolve the deficiency in stamp duty prevents the document from being considered as admissible and valid in evidence. Therefore, until the necessary stamp duty and penalty are duly paid and endorsed by the Collector, the instrument remains legally barred from being admitted in evidence.
27. The argument advanced on behalf of the plaintiff-respondent no. 1 is that he would be entitled to get benefit of section 36 of the Stamp Act as the document had been exhibited and admitted in evidence, holds no ground in as much as the document was found to be insufficiently stamped and was marked as exhibit with objection and that objection having not been removed or cured, no benefit of section 36 of the Stamp Act could be extended to the plaintiff- respondent no. 1.
28. In this connection, following cases are cited:
Ram Rattan (dead) by L.Rs. v. Bajrang Lal2 ;
Javer Chand v. Pukhraj Surana3 ;
29. The Trial Court had placed reliance upon the aforesaid two judgments and had also extracted the relevant part from the said judgments. The facts in the 1978 case of Ram Rattan (dead) by L.Rs. (supra) were quite similar wherein an instrument had been exhibited with objection but therein also the said objection had not been removed or cured. This Court held that such an instrument would not be admissible in evidence and section 36 of the Stamp Act would not be attracted. The relevant paras of this judgment are reproduced below:
"6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM
NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 14 MP-7195-2025 If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and 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 and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana) [AIR 1961 SC 1655]. The endorsement made by the learned trial Judge that "Objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.
7. Mr Desai then contended that where an instrument not duly stamped or insufficiently stamped is tendered in evidence, the court has to impound it as obligated by Section 33 and then proceed as required by Section 35 viz. to recover the deficit stamp duty along with penalty. Undoubtedly, if a person having by law authority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section 35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither paid the duty nor penalty till today. Therefore, stricto sensu the instrument is not admissible in evidence. Mr Desai, however, wanted us to refer the instrument to the authority competent to adjudicate the requisite stamp duty payable on the instrument and then recover the duty and penalty which the party who tendered the instrument in evidence is in any event bound to pay and, therefore, on this account it was said that the document should not be excluded from evidence. The duty and the penalty has to be paid when the document is tendered in evidence and an objection is raised. The difficulty in this case arises from the fact that the learned trial Judge declined to decide the objection on merits and then sought refuge under Section 36. The plaintiff was, therefore, unable to pay the deficit duty and penalty which when paid subject to all just exceptions, the document has to be admitted in evidence. In this background while holding that the document Ext. I would be inadmissible in evidence as it is not duly stamped, we would not decline to take it into consideration because the trial court is bound to impound the document and deal with it according to law."
[emphasis added]
30. We find no reason to disagree with the findings of the Trial Court regarding the inadmissibility of the agreement to sell dated 29.03.1999. The document, being insufficiently stamped, was rightfully barred from being admitted as evidence in the absence of the requisite stamp duty and penalty being paid and Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM NEUTRAL CITATION NO. 2026:MPHC-JBP:2341 15 MP-7195-2025 certified by the Collector. The High Court, in treating this document as admissible without resolving the stamp duty deficiency, overlooked the statutory mandate under the Stamp Act. As the document is foundational to the suit, the failure to comply with the statutory requirements renders the entire claim unenforceable. Consequently, the suit must be dismissed, as it is based on an instrument that is legally inadmissible as evidence. The plaintiff cannot claim relief on the basis of a document that has not satisfied the legal requirements for admissibility."
9. In view of the aforesaid judgments of the Hon'ble Apex Court, in terms of Section 35 of Indian Stamp Act, the document being undisputedly insufficiently stamped, no interference is warranted in the impugned order passed by the trial Court whereby the Trial Court refused to permit to lead secondary evidence of the said document.
10. The petition fails and is dismissed.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/13/2026 5:32:07 PM