Jagdish Prasad And Ors vs Parshu Ram And Anr on 23 August, 2012

[Cites 34, Cited by 6]

Rajasthan High Court - Jaipur

Jagdish Prasad And Ors vs Parshu Ram And Anr on 23 August, 2012

1. The challenge in the present petition is the order dated 18.5.2010, passed by the` Additional District Judge No. 1, Sikar,(hereinafter referred to as the trial court), in civil Suit No. 92/2005, whereby the trial court has held the document namely, the deed of partition dated 6.11.1993, as admissible in evidence, though unregistered and not duly stamped.

2. The facts in nutshell giving rise to the present petition are that the respondent-plaintiff has filed the suit against the petitioners-defendants seeking declaration to the effect that the suit property being the property described in Para 2 of the plaint, situated at Piprali Road, Sikar, was purchased from the funds of HUF consisting of the plaintiff and the father of the defendants, and that therefore the plaintiff had one half share therein. The respondent-plaintiff has also prayed for the partition of said property and for the possession of his share and also for permanent injunction in respect of the said property. In the plaint, the respondent-plaintiff has averred interalia that the plaintiff Parshu Ram and late Shri Badri Narain, father of the defendants, were the sons of late Shri Anandi Lal. The disputed property was purchased from the funds of the HUF in the name of Shri Badri Narain, he being the elder brother. According to the respondent-plaintiff, after the death of Shri Badri Narain, his sons i.e. the defendants were trying to disturb the family arrangement of partition made on 6.11.1993, by the parties in presence of Smt. Geeta Devi, mother of the defendants and three other witnesses at Surat(Gujarat). It is further case of the respondent-plaintiff that on the same day the document i.e. the said partition deed dated 6.11.1993, was also executed which was signed by the respective parties and the witnesses, and that the properties mentioned therein were divided amongst the plaintiff and the defendants. According to the respondent-plaintiff the petitioners-defendants on 10.9.2005, refused to give one half share in the suit property to the plaintiff as per the partition deed dated 6.11.1993 and hence the suit was filed.

3. The said suit has been resisted by the petitioners-defendants by filing the written statement, denying the allegations and averments made in the plaint, and further contending interalia that the suit property was not the HUF property but was the self acquired property of their father late Shri Badri Narain and, therefore, the respondent-plaintiff did not have any right or share in the said property. The petitioners-defendants also denied to have executed any partition deed dated 6.11.1993, making family settlement as alleged by the plaintiff and further contended that the said document dated 6.11.1993, was concocted one, and even otherwise being unregistered, was inadmissible in evidence and was null and void. In short, the petitioners-defendants urged to dismiss the suit of the plaintiff.

4. The trial court after framing the issues from the pleadings of the parties proceeded further with the recording of evidence. During the course of evidence of the respondent-plaintiff,the document i.e. alleged deed of partition dated 6.11.1993, was admitted in evidence by the trial Court as Ex.2. The petitioners-defendants, therefore, objected against the admissibility of the said document in evidence, on the ground that the same was unregistered and, therefore, inadmissible in evidence. The trial Court vide the impugned order dated 18.5.2010, rejected the objection of the petitioners and held that the said document dated 6.11.1993, though unregistered was admissible in evidence for collateral purposes. The petitioners-defendants being aggrieved by the said order, has preferred the present petition under Art.227 of the Constitution of India.

5. The learned sr. counsel Mr. R.K. Agarwal, for the petitioners, pressing into service the provisions contained under the Registration Act,1908 and the Indian Stamp Act,1899,(as adapted in Rajasthan at the relevant time when the document in question was executed), vehemently submitted that the document dated 6.11.1993, being the instrument of partition, allegedly, portitioning the properties mentioned therein and creating rights of the parties in the immovable properties was required to be compulsorily registered under the Registration Act (for short the Registration Act) and was also chargeable to the stamp duty under the Indian Stamp Act,1899(for short the Act of 1899), and the same having not been registered and stamped as required under the relevant Acts, was not admissible in evidence. Mr. Agarwal has placed heavy reliance on the decisions of the Apex Court in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra (2009)2 Supreme Court Cases 532, in case of Barium Chemicals Ltd. Versus Vishwa Bharti Mining Corporation and another (2009)16 Supreme Court Cases 262, in case of K.G. Shivalingappa (D) by L.Rs. And others Vs. G.S. Eswarappa and others , AIR 2004 SUPREME COURT 4130 and the decision of this Court in case of Smt. Jamna Bai vs. Tulsi Ram, AIR 1997 RAJASTHAN 85, in support of his submissions. According to Mr. Agarwal, even if the document in question though unregistered, is made admissible in evidence for collateral purposes in view of the Proviso to Section 49 of the Registration Act, the said document was not admissible in evidence for any purposes in view of Section 35 of the Act of 1899 and of Section 39 of the Rajasthan Stamp Act 1998 (for short, the Act of 1998). Hence according to Mr. Agrawal the trial Court has committed an error of law apparent on the face of record in admitting the said document in evidence. He further submitted that even as per the observations made by the Apex Court in case of Bipin Shantilal Panchal Vs. State of Gujarat, AIR 2001 S.C. 1158, the objection with regard to the deficiency of stamp duty of a document was required to be decided by the trial court, before proceeding further with the trial. Placing reliance on the decision of the Apex Court in case of State, through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and Ors. JT 2003(4)SC 605, the learned counsel has submitted that the powers of superintendence, under Article 227 of the Constitution extend to seeing that the subordinate courts obey the law.

6. Per contra, the learned counsel Mr. G.P.Sharma for the respondent-plaintiff relying upon the decision of Apex Court in case of Radhey Shyam and Anr. Vs. Chhabi Nath and Ors. 2009 AIR SCW 4006 and in case of Essen Deinki Vs. Rajiv Kumar (2002)8 Supreme Court Cases 400, submitted that even wrong decision made by the lower court should not be interfered with by the High Court exercising the powers under Art. 227 of the Constitution, if the decision has been given within the jurisdiction by the lower court. Mr. Sharma also taking the Court to the various provisions of the Registration Act, the Stamp Acts and also to the contents of the document dated 6.11.1993, submitted that the said document was the on memorandum of understanding already arrived at between the parties earlier and was reduced into writing by way of document dated 6.11.1993 and could not be said to be an instrument of partition as contemplated under Section 2(xx) of the Act,1998, chargeable with the Stamp duty under Section 3 of the said Act. According to him, no specific contention was raised by the defendants as regards the inadmissibility of the document in evidence under the Stamp Act. Mr. Sharma supporting the impugned order passed by the trial court, submitted that the trial court had rightly admitted the said document in evidence for collateral purposes during the examination-in-chief of the respondent-plaintiff. He also submitted that since the learned counsel for the petitioners-defendants has already cross-examined the respondent-plaintiff with regard to the said document, it is not open for the petitioners to challenge the admissibility of the said document, as sought to be challenged in the present petition.

7. From the submissions made by the learned counsels for the parties, it appears that the moot question that arises for determination before this court is, as to whether the document i.e. the alleged deed of partition dated 6.11.93 exhibited as Ex.2 by the trial court was admissible in evidence in view of Section 49 of the Indian Registration Act,1908 and in view of Section 35 of the Stamp Act of 1899 (as adapted in Rajasthan at the relevant time) or in view of Section 39 of the Act of 1998.

8. In order to appreciate the rival contentions raised by the learned counsel for the parties, it would be beneficial to reproduce the relevant provisions of the Indian Registration Act of 1998 as well as of the Act of 1899 (which are also pari materia with the provisions contained in the Act of 1988).

9. Section 17 of the Registration Act deals with the documents which require compulsory registration and as per Section 17(1)(b), any non-testamentary instruments which purport or operate to create, declare, assign,limit or extinguish, whether in present or in future,any right,title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, is required to be compulsorily registered. The said relevant part of Section 17(1)(b) is reproduced as under:-

17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

10. The effect of non-registration of document required to be registered, is contained in Section 49 of the Registration Act, which reads as under:-

49. 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, 1882(4 of 1882)],to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882(4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877(3 of 1877)or as evidence of any collateral transaction not required to be effected by registered instrument.

11. So far as the relevant provisions contained in the Stamp Act are concerned, Section 2(14) of the Act of 1899 (Section 2 (xix) of the Act of 1998) reads as under :-

2(14) instrument includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished, or recorded.

12. Section 2(15) of the Act of 1899 (Section 2(xx) of the Act of 1988) defines instrument of partition as under:-

2(15) instrument of partition means any instrument whereby co-owners of any property divide, or agree to divide such property in severalty, and includes,--

(i)a final order for effecting a partition passed by any revenue authority or any Civil Court,

(ii)an award by an arbitrator directing a partition, and

(iii)when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners.

13. Section 3 of both the Stamp Acts mandates that the instruments mentioned therein shall be chargeable with the duty of the amount indicated in the Schedule annexed to the respective Acts. As per Entry No. 45 of the Schedule to the Act of 1899 (and as per Entry No. 42 of the Schedule to the Act of 1998), the partition-instrument as defined under the Act, is chargeable to the duty as mentioned therein.

14. Further, as per Section 35 of the Act of 1899 (Section 39 of the Act of 1998), no instrument chargeable with the duty under the Act, could be admitted in evidence for any purpose, by any person having by law or consent of parties, authority to receive evidence, or could be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped, subject to the proviso. In the proviso to the said section, it has been provided interalia that such instrument shall, subject to all just exceptions, be admitted in evidence on the payment of duty, and under the circumstances mentioned therein.

15. In the light of abovestated provisions, let us examine the facts of this case. The copies of relevant pleadings of the parties , of the ordersheets, of the deposition of the respondent-plaintiff, and of the document in question have been produced on record of the petition. So far as the document in question is concerned, from the bare reading of the same, it appears that it was a deed of partition executed on 6.11.93. In the pleading as well as in the evidence, the respondent-plaintiff has described the said document as the partition deed. Of course, the petitioners-defendants have challenged the very genuineness of the said document, however it will be a matter of evidence to be appreciated by the trial court at the time of final hearing of the suit. In any case, even if it is assumed that such a document was executed by the parties, it appears that by executing the said deed, the partition of the immovable properties of HUF was made, creating rights of the respective parties therein. It is not the case of the respondent-plaintiff either in plaint or in his evidence that the said document was merely a memorandum prepared after the family settlement which had already taken place earlier, and reduced into writing on 6.11.93. Since the document dated 6.11.93 itself created the rights in the immovable properties of the value of Rs. 100/- and upwards, in favour of the concerned parties partitioning the properties, it was a deed of partition requiring registration under Section 17(1)(b) of the Registration Act and was also an instrument chargeable to stamp duty as contemplated in Section 3 read with Schedule to the Act of 1899.

16. In this regard, it may be further noted that as per the proviso to Section 49 of the Registration Act, an unregistered document effecting immovable property and required by the said Act to be registered, may be received as evidence of any collateral transaction. However, the instrument chargeable with the stamp duty under Section 3 but not duly stamped would not be admissible in evidence for any purpose under Section 35 of the Act of 1899 (Section 39 of the Act of 1998), unless the requisite duty is paid. Therefore, the court finds substance in the argument made by the learned counsel Mr. G.P. Sharma for the respondent-plaintiff that in the instant case, the document in question though required to be compulsorily registered under Section 17 of the Registration Act, would be admissible in evidence for collateral purpose, in view of the proviso to Section 49 of the said Act, the suit of the respondent-plaintiff being for the declaration and possession of one half share in the suit property and for permanent injunction, on the basis of the document in question. However, the question is, whether such a document which was not duly stamped could be made admissible in evidence in view of Section 35 of the Act of 1899 and (Section 39 of the Act of 1998), which otherwise clearly prohibits the admissibility of instrument chargeable with the duty but not duly stamped, for any purpose.

17. Various High Courts have considered the issue and held interalia that the bar against the admissibility of an instrument which is chargeable with the stamp duty but not stamped, is absolute, whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of the proviso to Section 35 of the Act of 1899 are complied with. Beneficial reference of the judgments of the Andhra Pradesh High Court in case of Sanjeeva Reddi Vs. Johanputra Reddi (AIR 1972 AP 373) and in case of T. Bhaskar Rao Vs. T. Gabriel (AIR 1981 AP 175); of Allahabad High Court in case of Firm Chuni Lal Tukki Mal Vs. Firm Mukat Lal Ram Chandra (AIR 1968 All 164) and of Orissa High Court in case of Chandra Sekhar Misra Vs. Gobinda Chandra Das (AIR 1966 Ori 18), be made in this regard. The said judgments have also been considered by the Apex Court in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra ((2009) 2 SCC 532), which clinches the issue. In the said judgment it has been held by the Apex Court as under :-

17. Parliament has, in Section 35 of the Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the aforementioned provisions.

It has been further held therein that:-

22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act.

23. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct.

24. ........

25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.

26. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parmananad, [AIR 1946 PC 51] wherein it was held :-

"That the words `for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms." The said decision has been followed in a large number of decisions by the said Court.

18. The ratio laid down in the above case squarely applies to the facts of this case. In view of the above stated settled legal position, there remains no shadow of doubt that the instrument which was chargeable with stamp duty, if not duly stamped could not be made admissible in the evidence for any purpose in view of Section 35 of the Act of 1899, (Section 39 of the Act of 1988) unless the requirements of the proviso to the said Section were complied with, though such a document might be admissible in evidence for collateral purposes in view of the proviso to Section 49 of the Registration Act. Since the document in question, being an instrument of partition as contemplated in Section 2(14) of the Act of 1899, was chargeable to stamp duty, and since no such stamp duty as required under the said Act was paid, the said document was not admissible in evidence for any purpose in view of Section 35 of the Act of 1899 (Section 39 of the Act of 1998) unless the requisite stamp duty was paid by the party concerned. In that view of the matter the trial court has committed an error of law apparent on the face of record, in disregarding the provisions of the Stamp Act and in admitting the said document in evidence, though objected by the petitioners-defendants. The judgment in case of Hafeeza Bibi & Ors. Vs. Shaikh Farid AIR 2011 SC 1695 relied upon by the learned counsel Mr. Sharma also does not apply to the facts of the present case inasmuch as in the said case the admissibility of the document which was a gift deed was considered by the Apex Court in the light of the principles of Mohammedan Law. Such is not the case here.

19. The court also does not find any force in the submission made by the learned counsel Mr. Sharma for the respondent-plaintiff that since the document was already exhibited during the examination in chief of the plaintiff and the learned counsel for the defendants having already cross-examined the plaintiff on the said document, it was not open for the petitioners-defendants to challenge the order of the trial court maintaining the admissibility of document. From the certified copy of the order-sheets, it appears that the learned counsel for the petitioners-defendants had raised the objection against the admissibility of the said document in evidence on 8.2.10 and thereafter the court passed the order on 18.5.10 holding without assigning any reasons that such document was admissible in evidence. The said order dated 18.5.10 is under challenge before this court in the petition. Since, there was no stay against the proceedings of the suit, the trial court appears to have fixed the matter for the cross-examination of the plaintiff, which was done by the learned counsel for the defendants. Thus, pending this petition, the document was marked as Ex.2 on 29.11.10 during the examination-in-chief of the plaintiff though the order dated 18.5.10 was under challenge in this petition. It is needless to say that when any document sought to be produced during the course of evidence is found to be insufficiently stamped, it is the duty of the court to decide the issue of admissibility of such document under the relevant Stamp Act.

20. At this juncture, the observations made by the Apex Court in case of Bipin Shanti Lal Panchal Vs. State of Gujarat AIR 2001 SC 1158 would be also relevant to be reproduced as under :-

(13) When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

21. In the above referred judgment also the Apex Court has clarified that if the objection against admissibility of any document on the ground of deficiency of stamp duty is raised, the court has to decide such objection before proceeding further. It was sought to be submitted by the learned counsel Mr. Sharma for the respondent-plaintiff that the petitioners-defendants had not specifically raised the issue about the non-payment of stamp duty. The court does not find any substance in the said submission also. The petitioners in their written statement have challenged the very genuineness of the said document of partition, and further contended that such a document was unregistered and inadmissible in evidence. When any document which required payment of stamp duty under the Stamp Act is sought to be brought into evidence, it is incumbent on the part of the court to see whether such a document is duly stamped or not, and is admissible in the evidence or not under the relevant Stamp Act. In the instant case, when the petitioners-defendants had specifically raised the objection with regard to the admissibility of the said document in evidence, the trial court ought to have considered the provisions of the Stamp Act and the Registration Act before admitting such document in evidence.

22. The learned counsel Mr. Sharma for the respondents has also sought to submit relying upon the judgment of Apex Court in case of Hari Shankar Singhania & Ors. Vs. Gaur Hari Singhania & Ors. (2006) 4 SCC 658, that the family settlements are governed by the principles of special equity and the courts should not normally interfere with such settlements on technical grounds. There cannot be any disagreement with the said proposition laid down in the said judgment, however in the instant case, there is no question of the court interfering with the family settlement allegedly taken place between the parties. In the instant petition, the only issue raised before the court is as to whether the document in the nature of partition deed was admissible in evidence or not, under the provisions contained in the Registration Act and the Stamp Act.

23. Mr. Sharma has, lastly relying upon the decisions of Apex Court in case of Radhey Shyam & Ors. Vs. Chhabi Nath & Ors. (supra) and in case of M/s Essen Deinki Vs. Rajiv Kumar (supra) submitted that the jurisdiction of the High Court under Article 227 of the Constitution of India is very limited and restricted in nature and, therefore, should be sparingly exercised. There cannot be any disagreement with the proposition of law laid down by the Apex Court, however in the said cases relied upon by Mr. Sharma as well as in the case of State through Special Cell New Delhi Vs. Navjot Sindhu @ Bishan Kaur JT (supra) and in case of Shalini Shyam Shetty & Anr Vs. Rajendra Shankar Patil 2010 (8) SCC 329, it has been categorically observed by the Apex Court that the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India extends to keeping the subordinate judiciary within the limits of their authority and to seeing that they obey the law. In the instant case, the court has found that the court below, by admitting the inadmissible document in evidence, has acted without authority and not obeyed the law.

24. In view of the above, the order dated 18.5.10 passed by the trial court admitting the deed of partition dated 6.11.93 in evidence being illegal, the same deserves to be set aside. Though the said document has already been marked as Ex.2, the same shall not be read in evidence. However it is clarified that the trial court shall be at liberty to reconsider the matter with regard to the admissibility of the said document in evidence, if the respondent-plaintiff satisfies the requirement of the proviso to Section 35 of the Act of 1899 (Section 39 of the Act of 1998). The petition deserves to be allowed accordingly.

25. Before concluding, the court cannot resist itself from observing that there is absolutely an inconsistent practice being followed in the subordinate courts, in the matter of dealing with the documents produced by the parties, for being read in evidence. It has been observed that most of the courts below in utter disregard of the provisions contained in the C.P.C. and in the General Rules (Civil) 1986 framed by the Rajasthan High Court, and in utter disregard of the principles laid down in the Evidence Act, admit the documents in evidence as a matter of course, without following the due procedure and without deciding as to whether such documents are legally admissible in evidence or not. It has also been observed that the exhibit numbers of the documents are being marked by the parties or witnesses themselves in the affidavits filed by them in respect of their examination-in-chief, and that the courts also would not pass any orders as regards the admissibility of such documents, though required as per the proviso to Rule 4 of Order XVIII of CPC. Neither the endorsements of particulars nor the signatures of the concerned courts are put on the documents admitted, though required under Order XIII, Rule 4 of CPC, read with Rule 51 to 55 of the General Rules (Civil) 1986. This court is constrained to observe that IN none of the records of the suit proceedings called for from the courts below, one would find any compliance of the said provisions. When such particulars are not mentioned on the admitted documents, it becomes very difficult to know as to in which proceedings, on which date, by whom and how a particular document was admitted in evidence. The signatures or initials of the concerned Judge who admitted the documents in evidence also would not be found on any of the exhibited documents. Such a cursory, casual and shallow practice being followed in the subordinate courts is not only improper but is illegal.

26. It is needless to say that it is incumbent on the part of the subordinate courts to follow the procedure laid down in the CPC and in the General Rules (Civil) framed by the High Court for the guidance of the civil courts subordinate to it, while conducting the suit proceedings. It is also trite to say that every disputed document before admitting in evidence and before exhibiting the same has to be legally proved by the party relying upon it. It is, therefore, directed that the subordinate courts shall scrupulously follow the procedure laid down in the CPC and in the General Rules (Civil) and consider the provisions contained in the Evidence Act and other relevant Acts, before admitting and marking the exhibits on the documents for being read in evidence and shall also put their signatures/initials on the admitted and exhibited documents after verifying about the endorsements of particulars as required under Order XIII, Rule 4 of CPC.

27. With these observations and directions, the petition stands allowed.

28. The office is directed to do the needful for the circulation of this order amongst the subordinate courts forthwith.

(BELA M. TRIVEDI) J.

MRG.

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

M.R. Gidwani PS-cum-JW

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Rajasthan High Court - Jaipur