Karnataka High Court
Sakamma vs Pavadi Gowda And Ors. on 6 July, 1998
Equivalent citations: ILR1998KAR3842
Author: S.R. Venkatesha Murthy
Bench: S.R. Venkatesha Murthy
ORDER S.R.VenkateshaMurthy, J.
1. evision is directed against the order dated 7th of March, 1995 in O.S.No. 183 of 1987 holding that Ex.P.1 in O.S.No. 324 of 987 was inadmissible in evidence not being fully stamped and was also barred by Section 17 of the Registration Act.
2. The Trial Court mainly relied upon the decision of the Supreme Court in JAVERCHAND v. PUKHRAJ SURANA, AIR 1961 SC 1655 and ETTUTHARA WARIOR v. C. KOCHUNARAYANAN MENON., AIR 1962 SC 736
3. The Trial Court repelled the contention of the revision petitioners herein that the document Ex.P.1 in O.S.No. 324 of 1987 had been admitted in evidence and therefore it was not open to the plaintiff in suit to challenge its admissibility. Javerchand's case referred to above related to admissibility of a Hundi, deficite stamping of it could not be validated by payment of duty and penalty; where as in this case, the document is alleged to be an agreement to sell. Ex.P.1 in O.S.324 of 1987 was characterised as an agreement to sell. Whether it is an out right sale deed or an agreement to sell is a matter of construction of the document. Proviso to Section 34 of the Karnataka Stamp Act deals with the situation of the nature in question and reads as follows:
"34...............
Provided that
(a) any such instrument not being an instrument chargeable with a duty not exceeding fifteen paise only, or a mortgage of crop (Article 35(a) of the Schedule chargeable under Clauses (a) and (b) of Section 3 with a duty of twentyfive paise 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;
A perusal of the above would show that instruments chargeable with duty of 25 paise only would not be admissible in evidence at all, by reason of being not liable to penalty at all, while other instruments, like Ex.P.1 in O.S.No. 324 of 1987, cannot be rejected on the ground that they are inadmissible on the ground of being not properly stamped when the requisite duty and penalty is recoverable and recovered.
4. So far as in admissibility for want of registration is concerned, it is essentially a question of construction of the document and Section 17 of the Registration Act does not bar the admissibility in evidence of the documents enumerated therein. All that happens is that such a document, if it is not registered in accordance with registration law, it is rendered inoperative; the admissibility of such a document for collateral purposes being governed by Section 49 of the Registration Act.
5. In the instant case, the Karnataka Stamp Act, or any enactment providing for recovery of stamp duty on specific instruments, is a fiscal enactment intended to secure to the State specified stamp duty. Sections 34 and 35 of the Karnataka Stamp Act is intended to effectuate the intention of the legislature by barring the admission of document unless the requisite stamp duty is paid along with the stipulated penalty. When once a document is admitted in evidence rightly or wrongly, Section 35 of the Karnataka Stamp Act bars any objection to the admissibility of the document at a later stage in the same proceedings or otherwise. The only exception is Section 61 of the Karnataka Stamp Act. In the instant case Section 61 of the Karnataka Stamp Act is inapplicable. When once a document has been admitted, rightly or wrongly, in evidence, it is not open to a party in any other proceedings to contest the admissibility of the document on the ground that the document is not properly stamped in accordance with law. Sections 34 and 35 come into operation when for the first time a document is tendered in evidence and not on subsequent occasions when it is already tendered as evidence. The Hon'ble Supreme Court had an occasion to examine the scope of the Stamp Act in the case of HINDUSTAN STEEL LTD v. DALIP CONSTRUCTION COMPANY, AIR 1969 SC 736 wherein it is observed as follows:
"The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments; it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the Scheme is clear; Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; Section 4 provides the procedure for instruments being impounded, Sub-section (1) of Section 42 provides for certifying that an instrument is duly stamped, and Sub-section (2) Section 42 enacts the consequences resulting from such certification."
In the instant case, the document is admittedly marked as Ex.P.1 in the litigation between the same parties and the same is now sought to be tendered as evidence in this case. The question of admissibility of the document on account of Ex.P.1 being improperly stamped cannot now be raised by the defence in the suit. The question as to whether the document admitted in evidence can or cannot be acted upon depends on the terms of the documents and the provisions of the Indian Registration Act applicable to the facts.
6. The trial Judge committed a jurisdictional error in rejecting the document in question, the case coming within the ambit of the expression "case decided" under Section 115 of CPC, calling for interference. The revision therefore deserves to be and is allowed.