Calcutta High Court (Appellete Side)
274/2011 on 7 June, 2013
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
1 06-13 AD C.O. 274 of 2011 In re : Mohammad Safi Gaddi. ... Petitioner Mr. Piush Chaturvedi, Ms. Anwesha Saha. ... for the petitioner.
Mr. Chaturvedi along with Ms. Saha, learned Counsel, appears for the petitioner. None appears to represent the opposite party.
This revisional application is directed against the order dated 26th July, 2010 passed in Title Suit No. 27 of 2006 by learned Civil Judge (Senior Division), Additional Court, Purulia, whereby the plaintiff's objection praying for impounding the agreement sought to be exhibited by the defendant, was not entertained.
A brief factual background is this that the defendant no.1 at the time of her examination-in-chief stated that she executed an agreement to sell the suit property and has prayed for admitting that document by adducing evidence. It was vehemently opposed by the petitioner/plaintiff by filing a written objection stating therein that before admitting the agreement for sale, the same must be impounded as required stamp duties has not been paid as per amended provisions of the Stamp Act.
Learned Counsel for the petitioner submits in the tune of the objection petition filed by his client before the learned court below, he has contended that the document sought to be exhibited was an unregistered document. Section 17 of the Registration Act, 1908 lays down that documents of which registration is compulsory. The document which was sought to be executed was required to be registered in view of the provisions laid down in Section 17(v) of the Registration Act, 1908. He has invited my attention to the provisions laid down in Section 49(c) of the Registration Act, 1908, Sections 35 and 40(1)(a) of the Indian Stamp Act, 1899 and has contended that unless and until the document sought to be exhibited is impounded, it cannot go into the evidence. To support his 2 contention, learned Counsel for the petitioner has referred to the decisions reported in (2000)6 SCC 394 and A.I.R 1962 S.C. 527.
I have meticulously perused the objection petition of the petitioner/plaintiff filed before the learned court below raising objection for admission of the agreement for sale and also the copy of the objection petition filed by the defendant no.1. I have gone through the impugned order. The defendant no.1 took a point that the law never provides double payment of stamp duty for execution of agreement and sale deed and as such, the question for impounding the agreement for sale does not arise. The learned court below by its impugned order accepted the contention of the learned Counsel for the defendant no.1 and has observed that double payment of stamp duty is not the object of the Stamp Act.
It is an admitted fact that the sale deed no. 4855 for the year 2007 has been marked as Exbt.-B. The sale deed was executed on the basis of the agreement for sale dated 04-07-2003. The agreement for sale dated 04-07-2003 was placed before the learned court below by the defendant no.1 with a prayer for marking the said document as Exhibit.
Section 17 of the Registration Act, 1908 deals with the provisions that the documents of which registration is compulsory. Section 17(v) may be placed hereunder :-
"(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest."
We may also peruse Section 49 of the Registration Act, 1908. Section 49 deals with the 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, 1982), to be registered shall -
(c) be received as evidence of any transaction affecting such property or conferring such power."3
Besides the above noted sections, we may also peruse the Section 40(1)(a) and Section 40(iii) of the Indian Stamp Act, 1899. Section 40 of the Indian Stamp Act, 1899 deals with the Collector's power to stamp instruments impounded.
The learned court below was under obligation to send it to the Collector and the Collector on receipt of said instrument, was required to deal with it as provided under Section 40 of the Indian Stamp Act, 1899 and return it to the impounding officer here the learned court below. The learned court below has not adopted that procedure. The document in issue cannot be taken as evidence as the court is disabled from using the said instrument as evidence and as such, it must not consider the same for the purpose of dealing with the suit as observed by the Hon'ble Apex Court in the decision reported in (2000)6 SCC
394. The agreement for sale dated 04-07-2003 is that the agreement on the basis of which sale deed no. 4855 for the year 2007 was prepared. If the defendant no.1 intends to bring it on record as exhibited document, then the same is to be impounded, as it needs registration compulsorily in view of the provisions laid down in Section 17(v) of the Registration Act, 1908. In the absence of such registration, the said document cannot be received as evidence of any transaction affecting the suit property as per the provisions laid down in Section 49 of the Indian Stamp Act, 1899. Section 35 of the Indian Stamp Act, 1899 made it abundantly clear that instruments not duly stamped are inadmissible in evidence. Therefore, the question of double payment of stamp is nowhere in sight in view of the provisions mentioned hereinabove.
I find substantive force in the submission of the learned Counsel for the petitioner/plaintiff.
The order impugned is not in accordance with the provisions of law. It calls for interference. It is set aside.
In the result, the revisional application stands allowed and thus, disposed of.
Interim order, if any, stands vacated.
4Urgent xerox certified copy of this order, if applied for, shall be given to the learned Counsel for the petitioner as expeditiously as possible on compliance of all necessary formalities.
(Asim Kumar Ray, J.)