Madhya Pradesh High Court
Premlal Jharia vs Smt. Mango Bai Mehra on 2 May, 2018
Equivalent citations: AIRONLINE 2018 MP 927
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WP No.10443/2013
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10443/2013
Premlal Jharia Vs. Smt. Mango Bai Mehra & others
Jabalpur, dated 02/05/2018
None for the petitioner.
None for the respondents No.1 and 2.
Shri B.D.Singh, Government Advocate for respondent No.3/State.
Challenge in the present petition is to an order passed by 7 th Civil Judge Class-II, Jabalpur on 1.3.2013 in Civil Suit No.76- A/2007, whereby an application filed by the petitioner/plaintiff for paying the appropriate stamp duty on the gift-deed dated 23.5.1992 was declined.
2. Petitioner, the plaintiff, has filed a suit for declaration that he is owner and in possession of the land described in the plaint. The gift-deed dated 23.5.1992 on the basis of which the plaintiff has filed a suit is not affixed with proper stamp duty. It is in these circumstances, the plaintiff filed an application to affix the stamp duty before the same is admitted in evidence.
3. Section 35 of the Indian Stamp Act, 1899 (for short 'the Act') makes it clear that no instrument chargeable with duty can be admitted in evidence for any purpose, however, such instrument is admissible in evidence on payment of duty on which the same is chargeable or in the case of an instrument insufficiently stamped of ...2...
WP No.10443/2013 the amount required to make up such duty. In the present case, the document is insufficiently stamped. The relevant provisions of the Act read as under:-
33. Examination and impounding of instruments. -- (1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a pubic office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
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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 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;
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38. Instruments impounded, how dealt with. -- (1) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
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WP No.10443/2013 (2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
4. The learned Trial Court declined the application for the reason that the plaintiff has sought to affix appropriate stamp duty after many years and when the plaint was filed on 24.7.2007. Therefore, at this stage, the plaintiff cannot be permitted to affix appropriate stamp duty on such document.
5. I find that the order of the learned Trial Court is not sustainable in law. The appropriate stamp duty can be paid at any time before any document insufficiently stamped is produced in evidence. The deficient stamp duty can be made up at any stage as the question of appropriate stamp duty is required to be examined when such document is produced in evidence. If the document is insufficiently stamped, then the document is required to be impounded. Therefore, before such document is admitted, any deficiency in stamp duty can be made up. The delay is not relevant but the stage in which the document is produced is relevant. Before the document is tendered in evidence, the appropriate stamp duty has to be paid. The consequence of the insufficient stamp duty is impounding of document. Such stage of impounding will arise only when document is to be produced in evidence in terms of Section 33 of the Act.
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WP No.10443/2013
6. The matter has been examined by the Supreme Court in a case reported as Chilakuri Gangulappa Vs. Revenue Divisional Officer, Madanpalle and another [(2001) 4 SCC 197], wherein the plaintiff sought enforcing of an agreement of sale of an immoveable property. Such agreement was found insufficiently stamped. The learned Court impounded it and forwarded the instrument to the Revenue Divisional Officer for the purpose of taking further action. The Revenue Divisional Officer found that the agreement of sale was deficient in stamp duty and imposed penalty. Such order was challenge by the plaintiff under Section 47-A of the Stamp Act. In the light of such facts, the Supreme Court found that Section 47-A of the Act would not be applicable as in case of deficient amount of stamp duty, it is section 38 of the Act, which would be applicable. The relevant extract of the judgment in Chilakuri Gangulappa (supra) is as under:-
11. We extracted the relevant sub-sections of Section 47-A for the purpose of showing that the whole route followed hitherto was wrong as Section 47-A would not come into picture at all since nobody has a case that the instrument concerned was ever presented for registration. In the context of this instrument being presented before the Civil Court the relevant provision to be noticed is Section 40 of the Stamp Act. Sub-section (1) of that Section says that when the Collector impounds an instrument under Section 33, or receives any instrument sent to him under Section 38(2) he shall adopt the procedure laid down in the sub-section. In this context Section 38 is to be looked into. It is extracted below:
38. Instruments impounded, how dealt with.- (1) When the person impounding an instrument under section 33 has by law ...5...WP No.10443/2013
or consent of parties authority to receive evidence and admits, such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
12. It is clear from the first sub-section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance with such condition the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the 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 an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof".
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14. Inasmuch as none of the above proceedings had been adopted by any of the authorities including High Court we set aside the impugned orders. We direct the Munsif to consider first whether the document is insufficiently stamped and if he finds that question in the affirmative he has to adopt the next step indicated above.
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7. Since the plaintiff in the present case admits that the document is insufficiently stamped, the learned Court had two options, first; to allow the plaintiff to make up the deficiency in the stamp duty and second; to impound and send the same to the Revenue Officer for recovery of stamp duty. But since the plaintiff was willing to pay the deficient amount of stamp duty, the Trial Court should have exercised the first option of calling upon the plaintiff to pay the amount of deficient stamp duty before the document is produced in evidence.
8. Consequently, the order passed by the Trial Court cannot be sustained in law. Thus, the same is set aside. The petitioner/plaintiff is permitted to make up the deficient stamp duty in terms of the provisions of the Indian Stamp Act, 1899 in accordance with law. However, it is clarified that payment of stamp duty is not proof of document. The document has to be proved in accordance with law.
9. Writ Petition stands allowed and disposed of.
(Hemant Gupta) Chief Justice C. Digitally signed by CHRISTOPHER PHILIP Date: 2018.05.03 18:31:39 +05'30'