Chattisgarh High Court
Bhanuram Ratre vs Smt. Rambai Ratre on 6 December, 2024
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2024:CGHC:48129
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
AJAY
KUMAR
DWIVEDI
Date:
2024.12.10
10:39:22
+0530
WP227 No. 1117 of 2024
Bhanuram Ratre S/o Late Natheluram Ratre, Aged About 48 Years R/o Village-Barauda,
Patwari Halka No.17, Tahsil-Arang, District-Raipur (C.G.) ----------(Plaintiff)
... Petitioner.
versus
1 - Smt. Rambai Ratre Widow Of Late Dularu Ram Ratre, Aged About 65 Years R/o Village-
Barauda, Police Station Mana Camp, Tahsil- Arang, District-Raipur (C.G.)
2 - Sukharam @ Banshi Ratre S/o Late Dularu Ratre, Aged About 45 Years R/o Village-
Barauda, Police Station Mana Camp, Tahsil- Arang, District-Raipur (C.G.)
3 - Basant Kumar Ratre S/o Late Dularu Ram Ratre, Aged About 37 Years R/o Village-
Barauda, Police Station Mana Camp, Tahsil- Arang, District-Raipur (C.G.)
4 - Manohar Mahilang S/o Shri Manglu Mahilang @ Bhurwa, Aged About 57 Years R/o
Village-Kuwra, Post And Tahsil- Dharsiva, District-Raipur (C.G.)
5 - Kumar Mahilang S/o Shri Manohar Mahilang, Aged About 27 Years R/o Village-Kuwra,
Post And Tahsil- Dharsiva, District-Raipur (C.G.)
6 - Kumari Mahilang D/o Shri Manohar Mahilang, Aged About 24 Years R/o Village-Kuwra,
Post And Tahsil- Dharsiva, District-Raipur (C.G.)
7 - Jagriti Mahilang D/o Shri Manohar Mahilang, Aged About 22 Years R/o Village-Kuwra,
Post And Tahsil- Dharsiva, District-Raipur (C.G.)
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8 - Ashok Mahilang S/o Shri Manohar Mahilang, Aged About 22 Years R/o Village-Kuwra,
Post And Tahsil- Dharsiva, District-Raipur (C.G.)
9 - Lakeshwar Mahilang S/o Shri Manohar Mahilang, Aged About 22 Years R/o Village-
Kuwra, Post And Tahsil- Dharsiva, District-Raipur (C.G.) ... Respondents
For Petitioner(s) : Mr. Pushpendra Kumar Patel, Advocate.
For Respondent(s) : --
SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J.
Order On Board 06.12.2024
1. This Petition has been filed against the order 06.04.2024 passed by the Seventh Additional Judge, Raipur to Court of First Civil Judge, Class-II, Raipur in Civil Suit No.87-A/2021, whereby application filed by the petitioner under Section 65 of the Indian Evidence Act for placing the photocopy of the sale deed dated 19.101.1966 as secondary evidence, has been rejected.
2. Necessary Facts of the case are that the petitioner/plaintiff has filed a civil suit for declaration of title and permanent injunction in respect of the suit property on the basis of unregistered sale deed executed between the father of the petitioner and Mehattar @ Faladu Satnami 19.01.1966. However, defendant have denied said pleadings. In the said suit, the plaintiff has filed an application under Section 65 of the Evidence Act to place the photocopy of said sale deed on record on the ground that original sale deed was damaged by termites as it was kept in wooden almirah and also an affidavit in support of such averment. However, said application has been rejected by the trial Court.
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3. Learned counsel for the petitioner submits that since the foundation to lead secondary evidence has already been established, the trial Court ought to have allowed the said application, therefore, this petition may be allowed and impugned order may be set-aside.
4. Heard learned counsel for the petitioner and perused the documents placed on record.
5. When a query has been put to the counsel with regard to stamp, he fairly admits that original unregistered sale deed was not properly stamped. It is well settled law that photocopy of original instrument could neither be validated by impounding nor could it be admitted as secondary evidence under the Stamp Act, 1899. Further, the provisions of the Section 35 of the Stamp Act which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence concerning its contents cannot be given and the law law does not provide for the levy of any penalty on lost documents. The said proposition has been reiterated in the matter of Harimon Agrawal Vs. Prakash Chand Malviya [(2007) 8 SCC 514].
6. In the aforesaid judgment, while dealing with similar nature of issue, an observation has also been made with regard to Section 48-B which is a provision applicable in the State of Madhya Pradesh which was inserted by Indian Stamp (M.P. Amendment) Act, 1990 (No. 24 of 1990] in Chapter IV under the heading "Instrument not duly stamped" of the Act. Para 18 and 19 of the said judgment reads thus:-
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"18. Section 48-B is a provision applicable in the State of Madhya Pradesh which was inserted by Indian Stamp (M.P. Amendment) Act, 1990 (No. 24 of 1990] in Chapter IV under heading "Instrument not duly stamped" of the Act. This Section reads as under:
48-B. Original instrument to be produced before the Collector in case of deficiency. Where the deficiency of stamp duty is noticed from a copy of any instrument, the Collector may by order require the production of original instrument from a person in possession or in custody of the original instrument for the purpose of satisfying himself as to the adequacy of amount of duty paid thereon. If the original instrument is not produced before him within the period specified in the order, it shall be presumed that the original document is not duly stamped and the Collector may proceed in the manner provided in this Chapter:
Provided that no action under this section shall be taken after a period of five years from the date of execution of such instrument.
15. On a plain reading of Section 48-B, we do not find that the submission of the learned counsel for the appellant that by virtue of this provision the Collector has been authorized to impound even copy of the instrument, is correct. Under this Section where the deficiency of stamp duty is noticed from the copy of any instrument, the Collector may call for the original document for inspection, and on failure to produce the original instrument could presume that proper stamp duty was not paid on the original instrument and, thus, recover the same from the person concerned. Section 48-B does not relate to the instrument, i.e., the original document to be presented before any person who is authorized to receive the document in evidence to be impounded on inadequacy of stamp duty found. The Section uses the phraseology where the deficiency of stamp duty is noticed from a copy of any instrument. Therefore, when the deficiency of stamp duty from a copy of the instrument is noticed by the Collector, the Collector is authorised to act under this Section. On deficiency of stamp duty being noticed from the copy of the instrument, the Collector would order production of original instrument from a person in possession or in custody of the original instrument.
Production is required by the Collector for the purpose of satisfying himself whether adequate stamp duty had been paid on the original instrument or not. In the notice given to person in possession or in custody of original 5/5 instrument, the Collector shall provide for time within which the original document is required to be produced before him. If, in spite of the notice, the original is not produced before the Collector, the Collector would draw a presumption that original document is not duly stamped and thereafter may proceed in the manner provided in Chapter IV. By virtue of proviso, the step for recovery of adequate stamp duty on the original instrument on insufficiency of the stamp duty paid being noticed from the copy of the instrument, can only be taken within five years from the date of execution of such instrument. The words the Collector may proceed in the manner provided in this Chapter has reference to Section 48 of the Act. Under this Section, all duties, penalties and other sums required to be paid under Chapter IV, which includes stamp duty, would be recovered by the Collector by distress and sale of the movable property of the person who has been called upon to pay the adequate stamp duty or he can implement the method of recovery of arrears of land revenue for the dues of stamp duty. By virtue of proviso to Section 48-B, the Collectors power to adjudicate upon the adequacy of stamp duty on the original instrument on the basis of copy of the instrument is restricted to the period of five years from the date of execution of the original instrument. This Section only authorizes the Collector to recover the adequate stamp duty which has been avoided at the time of execution of the original instrument. This Section does not authorize the Collector to impound the copy of the instrument."
7. In light of the aforesaid settled law and considering the nature of document, this Court does not find any infirmity or illegality in the order impugned.
8. Accordingly, the petition fails and is hereby dismissed at the motion stage itself.
Sd/-
(Deepak Kumar Tiwari) Judge Ajay