1
128
C.O. 1126 of 2014
21.04.14
akd
Dipak Agarwal
Vs.
Mahua Chakraborty & Anr.
-------Mr. Manik Lal Poddar,
Mr. Ajay Kumar Agarwal.
… for the petitioner.
Mr. Subrata Roy Karmakar,
Ms. Monisha Nath.
… for the opposite parties.
This revisional application is directed against
the order dated 13th March, 2014 passed by the
learned Civil Judge (Senior Division), 2nd Court,
Howrah in Money Suit No. 13 of 2008, by which the
agreement for sale of the flat was sent to the District
Sub-Registrar for ascertaining the valuation of the
suit-property.
The
plaintiff/petitioner
entered
into
an
agreement for purchase of the flat and paid a sum of
Rs.2,90,000/- as and by way of earnest money. It is
alleged that the defendant/opposite party sold the
aforesaid flat to a third party in clear contravention of
the terms and conditions of the said agreement. The
plaintiff/petitioner filed a suit for recovery of earnest
money paid under the said agreement for sale. The
suit reached at the trial when the said agreement,
which is unregistered and not properly stamped, was
tendered into evidence. The Trial Court sent the said
agreement
to
the
District
Sub-Registrar
for
2
ascertaining the valuation of the suit-property.
Section 35 of the Stamp Act creates a bar in
admitting an instrument not duly stamped in evidence
for any purposes by any person having by law or
consent of parties authority to receive evidence.
Admittedly the said agreement for sale is unregistered
and under-stamped and required to be impounded by
the Court before receiving the same in evidence.
The petitioner says that the agreement can be
admitted in evidence for collateral purposes, even if it
is unregistered and under-stamped in view of the
proviso inserted to Section 49 of the Registration Act.
Section 35 of the Stamp Act does not envisage
that the instrument, which is not duly stamped, can
be admitted in evidence for collateral purposes; rather
it clearly stipulates that the instrument chargeable
with duty shall not be admitted in evidence for any
purposes. Section 49 of the Registration Act can be
pressed in the eventuality where the instrument
though duly stamped, but has not been registered,
which can be received in evidence for collateral
purposes in view of the proviso inserted therein.
The dichotomy between Section 35 of the Stamp
Act and Section 49 of the Registration Act was taken
note of by the Hon’ble Supreme Court in Avinash
Kumar Chauhan vs. Vijay Krishna Mishra reported in
3
(2009) 2 SCC 532 and it is opined :
“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 puprposes 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. Parma Nand wherein it was held : (AIR
p.52)
‘(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
purposes
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.
27.
In Bhaskarabhotla Padmanabhaiah v.
B. Lakshminarayana it has been held : (AIR p.
134, para9)
‘9. In
this
case,
the
learned
Subordinate Judge has observed that
what the plaintiff was trying to prove
was not the division in status but to
show that the property was divided
under the partition deed. In any case,
4
the fact that the document is
inadmissible due to want of being
stamped is clear. For, in Ram Rattan v.
Parma Nand Their Lordships of the
Privy Council 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.’
It was furthermore held : (Bhaskarabhotla case,
AIR p. 134, para 10)
’10. In the result, I agree with the
learned Munsif Magistrate that the
document is ‘an instrument of partition’
under Section 2(15) of the Stamp Act
and it is not admissible in evidenc
because it is not stamped. But, I further
hold that if the document becomes duly
stamped, then it would be admissible in
evidence to prove the division in status
but not the terms of the partition.’
28.
In Sanjeeva Reddi v. Johanputra Reddi
it has been held : (AIR p. 375, para 9)
‘9. While considering the scope of
Section 35 of the Stamp Act we cannot
bring in the effect of non-registration of
a document under Section 49 of the
Registration Act. Section 17 of the
Registration Act deals with documents,
the registration of which is compulsory
and Section 49 is concerned only with
the effect of such non-registration of the
documents which require to be
registered by Section 17 or by any
provision of the Transfer of Property
Act. The effect of non-registration is that
such a document shall not affect any
5
immovable property covered by it or
confer any power to adopt and it cannot
be received as evidence of any
transaction affecting such property or
conferring such power. But there is no
prohibition under Section 49 to receive
such a document which requires
registration to be used for a collateral
purpose i.e. for an entirely different and
independent matter. There is a total
and absolute bar as to the admissioin
of an unstamped instrument whatever
be the nature of the purpose or howeve
foreign or independent the purpose may
be for which it is sought to be used,
unless there is compliance with the
requirements of the provisos to Section
35. In other words if an unstamped
instrument is admitted for a collateral
purpose, it would amount to receiving
such a document in evidence for a
purpose which Section 35 prohibits.
There is nothing in B. Rangaiah v. B.
Rangaswamy which supports the
contention of the petitioner. That was a
case as pointed out by Kuppuswami, J.,
where there were two instruments
though contained in one document, one
a settlement in favour of the fourth
defendant therein and the other a will.
It was therefore held that part of the
instrument which constitutes a will did
not require any stamp and will be
admissible in evidence for proving the
bequest contained therein. It was for
that reason that the learned Judge said
that Section 35 of the Stamp Act has no
application to a case where one of the
separate instruments relating to one
such matter would not at all be
chargeable under the Act as in the case
before him.’
29.
In T. Bhaskar Rao v. T. Gabriel it has
been held : (AIR p.177, para 5)
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‘5. Section 35 of the Stamp Act
mandates
that
an
instrument
chargeable with duty should be
stamped so as to make it admissible in
evidence. Proviso (a) to Section 35 of the
Stamp Act enables a document to be
received in evidence on payment of
stamp duty and penalty if the document
is chargeable, but not stamped or on
payment of deficit duty and penalty, if
it is insufficiently stamped. The bar
against the admissibility of an
instrument which is chargeable with
stamp duty and is not stamped is of
course absolute whatever be the nature
of the purpose, be it for main or
collateral
purpose,
unless
the
requirements of proviso (a) to Section 35
are complied with. It follows that if the
requirements of proviso (a) to Section 35
are satisfied, then the document which
is chargeable with duty, but not
stamped, can be received in evidence.’
It was further held : (Gabriel case, AIR p. 177,
para 7)
‘7. It is now well settled that there is
no prohibition under Section 49 of the
Registration
Act,
to
receive
an
unregistered document in evidence for
collateral purpose. But the document so
tendered should be duly stamped or
should comply with the requirements of
Section 35 of the Stamp Act, if not
stamped, as a document cannot be
received in evidence even for collateral
puprpose unless it is duly stamped or
duty and penalty are paid under
Section 35 of the Stamp Act.’
(See also Firm Chuni Lal Tukki Mal v. Firm Mukat
Lal Ram Chandra and Chandra Sekhar Misra v.
Gobinda Chandra Das.)”
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Therefore, an instrument, which is not properly
stamped, cannot be received in evidence in view of the
statutory interdict created under Section 35 of the
Stamp Act for any purposes including the collateral
purposes.
The aforesaid proposition is reiterated by the
Supreme Court in a recent decision rendered in case
of Omprakash vs. Laxminarayan & Ors. reported in
2013 AIR SCW 5826 in the following words :
“12.
From a plain reading of the aforesaid
provision, it is evident that an authority to receive
evidence shall not admit any instrument unless it
is
duly
stamped.
An
instrument
not
duly
stamped 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 penalty. As we
have observed earlier, the deed of agreement
having been insufficiently stamped, the same
was inadmissible in evidence. The court being an
authority to receive a document in evidence to
give effect thereto, the agreement to sell with
possession is an instrument which requires
payment of the stamp duty applicable to a deed
of conveyance. Duty as required, has not been
paid and, hence, the trial court rightly held the
same to be inadmissible in evidence. The view
8
which we have taken finds support from a
decision of this Court in the case of Avinash
Kumar Chauhan v. Vijay Krishna Mishra (2009)
2 SCC 532 : (AIR 2009 SC 1489), in which it has
been held as follows :
‘21. It is not in dispute that the
possession of the property had been
delivered in favour of the appellant. He
has, thus, been exercising some right in
or over the land in question. We are not
concerned with the enforcement of the
said agreement. Although the same
was not registered, but registration of
the document has nothing to do with
the validity thereof as provided for
under the provisions of the Registration
Act, 1908.
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.’
13.
To
correctness
put
of
the
the
record
straight,
impugned
the
judgment
(
Laxminarayan & Ors v. Omprakash & Ors., 2008
(2) MPLJ 416) came up for consideration before a
Division Bench of the High Court itself in Writ
Petitioin No. 6464 of 2008 (ManSingh (deceased)
through Legal Representatives Smt. Sumranbai &
Ors.
v.
Rameshwar)
and
same
has
been
9
overruled by judgment dated January 22, 2010.
The High Court observed as follows :
‘8. A document would be admissible
on basis of the recitals made in the
document and not on basis of the
pleadings raised by the parties. In the
matter of Laxminarayan (supra), the
learned single Judge with due respect
to his authority we don’t think that he
did look into the legal position but it
appears that he was simply swayed
away by the argument that as the
defendant was denying the delivery of
possession, the endorsement/recital in
the document lost all its effect and
efficacy.
9.
It would be trite to say that if in a
document certain recitals are made
then the Court would decide the
admissibility of the document on the
strength of such recitals and not
otherwise. In a given case, if there is an
absolute unregistered sale deed and
the parties say that the same is not
required to be registered then we don’t
think that the Court would be entitled to
admit the document because simply the
parties say so. The jurisdiction of the
Court flows from Sections 33, 35 and
38 of the Indian Stamp Act and the
Court has to decide the question of
admissibility. With all humility at our
command we overrule the judgment in
the matter of Laxminarayan (supra).”
This Court, however, accepts the contention of
the petitioner that the Trial Court should not have
sent the document to the District Sub-Registrar for
ascertaining the valuation; rather the Trial Court
ought to have impounded the said document and sent
to the Collector for the purpose of ascertainment of
10
the stamp duty required to be paid upon the said
agreement for sale.
This
Court,
therefore,
modifies
the
order
impugned to the extent that the Trial Court shall send
the said agreement for sale to the Collector of the
concerned District for ascertaining the stamp duty
leviable and/or payable under the said instrument
and
after
receiving
the
report
shall
pass
the
consequential order/orders upon the petitioner.
With the above observations, the revisional
application is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.)