Petitioner sought to quash an order admitting an unregistered document as evidence for a collateral purpose in a suit for injunction involving family members. The court held the document inadmissible until duly stamped.
Writ petition allowed; petitioner directed to get the document duly stamped before seeking its admission in evidence.
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[CW-769/2013]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 769/2013
Smt. Mangi Bai And Anr.
----Petitioner
Versus
Nathu Lal
| ----Respondent |
|---|
| For Petitioner(s) | : Mr. SanjayNahar |
|---|---|
| For Respondent(s) | : Dr. Sachin Acharya |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
02/12/2021
The petitioner has preferred this writ petition claiming for the
following prayer:
“ It is therefore, respectfully prayed that this writ petition may kindly be allowed and the objection raised by the petitioners regarding the inadmissibility of the document dated 04.07.1992 (Annexure 3) may also kindly be allowed and the impugned order dated 01.11.2012 (Annexure 4) may kindly be quashed and set aside .”
Counsel for the petitioner submits that the plaintiff – respondent filed a suit for permanent injunction against the petitioners – defendants relying his suit mainly on the document dated 04.07.1992 executed on a Rs.5/- stamp.
Learned counsel for the petitioner further submits that the aforementioned document is a forged document and since the same is executed on insufficient stamp and unregistered, and therefore cannot be taken into evidence; and does not create any right in the favour of the plaintiff.
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Learned counsel for the petitioner also submits that the plaint filed by the plaintiff – respondent during the pendency of the suit, seeking temporary injunction, was rejected by the Learned Trial Court vide order dated 16.03.2012.
Learned counsel for the petitioner also submits that the Learned Trial Court, vide order dated 01.11.2012, rejected the objections raised by the petitioner-defendants holding that the suit was filed for declaration only and suit was not filed seeking relief regarding ownership of the plot; and further held that the document dated 04.07.1992 was merely a writing in pursuance of a family settlement which can be exhibited in evidence for the collateral purpose.
Learned counsel for the petitioner also submits that the aforementioned document, was executed on a stamp of a proper value, as was required for it to be entered into evidence, as under section 35 of the Indian Stamp Act, 1899. Section 35 of the Indian Stamp Act, 1899 reads as follows: –
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; …
Learned counsel for the petitioner also submits that Section 39 of the Rajasthan Stamp Act, 1998 clearly lays down a legislative mandate for the instruments not duly stamped inadmissible in evidence.
Section 39 of the Rajasthan Stamp Act reads as follows: – 39. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty under this Act shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive
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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, subject to all just exceptions, be admitted in evidence on payment of, - Learned counsel for the petitioner also submits that as per Section 17 sub section (b) and sub section (f) of the Registration Act, 1908 creates an obligation upon the platintiff – defendants to get the aforementioned document registered.
Section 17 sub section (b) and sub section (f) read as follows: – 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 (XX of 1866) or the Registration Act, 1871 (VIII of 1871) or the Indian Registration Act, 1877 (III of 1877) or this Act came or comes into force, namely:-
(b) other non-testamentary instruments which purport or operate, 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;
(f) agreement relating to the Deposit of title deeds, where such deposit has been made by way of security for the repayment of a loan or an existing or future debts
Learned counsel for the petitioner relying on the submissions so made, submits that since mandatory stamping and mandatory registration of the document had not been complied with by the plaintiff – defendants, the Learned Trial Court’s order, dated 01.11.2012, is bad in the eye of the law and must thereby be quashed and set aside.
Learned counsel for the respondent, however, submits that under section 49 of the Registration Act, 1908; there is an exception to mandatory registration for a document to be allowed into evidence i.e. collateral purpose.
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Learned counsel for the respondent further submits that the plaintiff – respondent is merely trying to protect his possession by seeking permanent injunction and has not filed a suit for declaration of title where the document in question would require to be mandatorily registered and duly stamped.
Learned counsel for the respondent also submits that the plaintiff – respondent comes out of the ambit of disqualification of evidence on count of mandatory registration, then subsequently, the requirement of stamp duty may be adjudged by this Court, as per the Rajasthan Stamp Act, 1998.
After hearing both parties at length, and perusing the record of the present petition, the Court observes that the parties, who are both members of the same family, and wherein the plaintiff / respondent wants to defend his possession by seeking permanent injunction relying on the document dated 04.07.1992, and the purpose is collateral i.e. divisible and independent from the main transaction. The document in question, which may either be seen as an acknowledgment – receipt or a family agreement, does not require to be mandatorily registered in light of the proviso to Section 49 of the Registration Act, 1908 which states an exception to the general rule of registration; wherein an unregistered document affecting immovable property may be allowed into evidence of any collateral transaction between the parties so concerned.
This Court also placed reliance on the judgement rendered by it in Munna Lal Vs. Prembai, S.B. Civil Writ Petition No. 8970 of 2008 wherein an objection raised as to admissibility of unregistered agreement, and the petition was dismissed on the
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ground that it can be used for the purpose to show the possession of the disputed property collaterally. This Court, therefore observes that the document in question, can be allowed into evidence to prove collateral purpose of possession of the petitioner – defendant.
This Court is of the firm opinion that Section 39 of the Rajasthan Stamp Act, 1988,which requires an instrument to be duly stamped for it to be entered into evidence, is fully operational in the present case particularly when the disqualification of registration has been overcome.
In light of aforesaid observations, this writ petition is allowed, while directing the plaintiff/respondent to get the document duly stamped by the competent authority, before seeking for it to be brought on evidence before the learned Trial Court.
(DR.PUSHPENDRA SINGH BHATI),J.
90-nirmala/Sanjay-
2 issues framed by the court
Whether an unregistered document executed on insufficient stamp duty can be admitted in evidence for a collateral purpose to prove possession.
Whether the impugned order rejecting the objection regarding inadmissibility of the unregistered document should be quashed.
Colour shows how this judgement treated each authority
Munna Lal Vs. PrembaiReferred¶42
Munna Lal Vs. Prembai, S.B. Civil Writ Petition No. 8970 of 2008
4 provisions across 3 enactments
Smt. Mangi Bai And Anr.
Nathu Lal
Pushpendra Singh Bhati
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
