Rajasthan High Court - Jaipur
Khuraj And Anr. vs Moti Lal And Ors. on 4 March, 1998
Equivalent citations: 1998(2)WLC444, 1998(1)WLN231
JUDGMENT
Shiv Kumar Sharma, J
1. In Durga Dan v. Devi Das 1974 WLN-314 this Court (Hon'ble Kan Singh, J. as he then was) propounded as under:
No right, title or interest in the property could be conveyed by a document if it is not in accord with Section 54 of the Transfer of Property Act. In the circumstances the document cannot be construed to be a sale for the purposes of Section 54 of the Transfer of Property Act, but would be only a contract for sale within its meaning.
Placing reliance on the aforesaid authority, the learned Trial Court passed the impugned order and rejected the objection raised by the defendant in respect of a document dated July 13, 1987. Hence this revision.
2. Mr. N.K. Rastogi, learned Counsel appearing for the defendants-petitioners (for short the defendants) canvassed that the Court below has not taken into consideration the provisions contained in the Rajasthan Stamp Law (Adaptation) (Amendment) Act, 1989 (for short the Act.) The document in question ought to have been construed as conveyance and it should have been properly stamped. Reliance was placed on Smt. Jamna Bai v. Tulsi Ram (DNJ (Raj.) 1996 - 717): Madan Mohan v. Gauri Shankar AIR 1998-MP 52) and Nihal Singh v. Singh Ram and Ors. (RLR 1989 (1) 384).
3. On the other hand Sh. Dinesh Maheshwari, learned Counsel for plaintiff-non-petitioner supported the impugned order and contended that no jurisdictional error was committed by the learned Court below.
4. I have given my anxious consideration to the rival contentions and carefully perused the case law cited before me.
5. In the "Statement of objects and reasons" of the Act it has been laid down that:
It has been seen that the tendency to enter into agreement to sell immovable property instead of executing the sale-deed is on the increase. Possession is transferred either with such agreement or with an irrevocable power of attorney. This device is adopted by parties so that the document is not subjected to stamp duty. In order to curb this practice, an amendment is sought to be introduced in Article 23 of the Second Schedule by adding an Explanation. It shall be deemed, by virtue of this explanation, that the agreement to sell or an irrevocable power of attorney (when coupled with transfer of possession) is a conveyance and stamp duty shall be chargeable accordingly.
6. In Jamna Bai v. Tulsi Ram (supra) this Court has occasion to decide a case where suit for temporary injunction was filed and admissibility of a document was questioned. The Trial Court allowed the defendant to produce the document for co-lateral purpose. This Court held that document was not admissible for evidences even for co-lateral purpose. In Madan Mohan v. Gauri Shankar (supra) Madhya Pradesh High Court propounded that where un-registered document was found to be completed to sell there could be no escape from the conclusion that the document was nothing but a sale deed.
7. In Nihal Singh v. Singh Ram (supra) this Court indicated that un-stamped and un-registered document which is required under law to be stamped and registered must be admitted in evidence even for co-lateral purposes.
8. At this juncture, it will be useful to refer the document in question. The defendant-petitioner Khuraj had allegedly executed this document on a stamp of Rs. 20/-. It has been mentioned in the document that: (English Translation) My agricultural land bearing name Kudo Mordi Walo Kuda Ko Khet" measuring about eight bighas is being sold in consideration of Rs. 45,000/-(Rupees Forty Five Thousand). As when you require, I will get the sale-deed registered. I have received the whole amount and nothing is due against you. There remains some legal lacunae so whenever you would require, I will get the document registered.
9. From the language incorporated in the document, it prima facie appears to be a contract for sale of the agricultural land and it can be marked exhibit at the time of recording the evidence.
10. It is well settled that mere exhibiting a document does not dispense with its proof. Therefore, it will be open to the defendants to draw the attention of the Trial Court towards the provisions of the Act at the subsequent stage of the suit and the Trial Court after recording the evidence and after hearing the plaintiff, can adjudicate upon this disputed question of fact.
11. The authorities cited by learned Counsel for the defendants are distinguishable. The plaintiff sought the relief for specific performance of the agreement for sale. As already stated, the document in question prima facie appears to be a contract for sale. Thus no illegality has been committed by the learned Trial Court in exercise of jurisdiction vested in it in passing the impugned order.
12. Resultantly the revision stands dismissed. No costs.