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2002 DIGILAW 740 (KAR)

MAHADEVA v. COMMISSIONER, MYSORE CITY CORPORATION

2002-11-29

T.S.THAKUR

body2002
TIRATH S. THAKUR, J. ( 1 ) THE short question that falls for consideration in these revision-petitions is whether the trial Court was justified in demanding the payment of duty and penalty in terms of S. 34 of the Karnataka Stamp Act, 1957 on an unregistered and unstamped sale deed relied upon by the petitioner as a condition precedent for letting the same into evidence in proof of a collateral transaction. The question arises in the following circumstances : ( 2 ) THE petitioner is plaintiff in O. S. No. 899/1997 pending trial before the Civil Judge (Jr. Dvn.), Mysore. The suit prays for a decree for permanent injunction restraining the defendants and persons acting on their behalf from interfering with the plaintiff's possession and enjoyment of the suit property. The title to the suit property is traced to an unregistered sale deed dated 20-12-1989 allegedly executed by the father of the plaintiff in his favour. The sale deed was in the course of the evidence of the plaintiff produced by him to show his possession over the property. Since the document is unregistered, an objection to its admissibility was raised which the Court below overruled in terms of its order dated 18-1-2002 holding that an unregistered deed could also be admitted into evidence for purposes of proving a collateral transaction. The Court, however, held that since the document was unstamped, the same could not be used for any purpose having regard to the provisions contained in S. 34 of the Karnataka Stamp Act, 1957 and accordingly directed the plaintiff to pay the stamp duty and the penalty in terms of the proviso to S. 34 of the Karnataka Stamp Act, 1957, before the document could be exhibited. The correctness of the said order has been assailed by the petitioner in C. R. P. No. 799/2002. The connected C. R. P. No. 908/2002 filed by the petitioner challenges an order dated 1-2-2002 passed by the trial Court whereby it has dismissed an application filed by the plaintiff seeking reference of the document to the District Registrar for determining the duty and the penalty payable on the same. ( 3 ) APPEARING for the petitioner-Mr. The connected C. R. P. No. 908/2002 filed by the petitioner challenges an order dated 1-2-2002 passed by the trial Court whereby it has dismissed an application filed by the plaintiff seeking reference of the document to the District Registrar for determining the duty and the penalty payable on the same. ( 3 ) APPEARING for the petitioner-Mr. Shetty argued that an unregistered document which was compulsorily registrable under S. 17 of the Registration Act, 1908, could be relied upon and admitted in evidence to prove a collateral transaction as envisaged by proviso to S. 49 of the Registration Act, 1908. To that extent, the Court below was according to Mr. Shetty justified in overruling the objection raised by the defendant to the admissibility of the document. Inasmuch as the plaintiff was making use of the document in question only for proving his possession over the suit property he was doing so for a collateral purpose. That being the position, the direction issued by the Court below for payment of the duty and penalty in terms of proviso to S. 34 of the Karnataka Stamp Act, 1957 was untenable for, having regard to the fact that, any insistence upon payment of stamp duty and the penalty in respect of a document being let into evidence only for a collateral purposes would in substance amount to preventing the use of the document for a purpose for which it could under the Registration Act be legitimately used. The demand for duty and penalty was according to Mr. Shetty in derogation of the proviso to S. 49 in so far as the same permitted the use of document for proof of a collateral transaction. ( 4 ) MR. Papanna, learned counsel for the respondents, on the other hand, argued that the provisions of S. 34 of the Karnataka Stamp Act, 1957, did not permit use of any instrument for any purpose whatsoever if the same was not duly stamped. The use of an unregistered and unstamped document for proving any collateral transaction was also forbidden unless the stamp duty payable on the document was paid together with the penalty recoverable in terms of the proviso to S. 34 of the Karnataka Stamp Act, 1957. There was according to Mr. The use of an unregistered and unstamped document for proving any collateral transaction was also forbidden unless the stamp duty payable on the document was paid together with the penalty recoverable in terms of the proviso to S. 34 of the Karnataka Stamp Act, 1957. There was according to Mr. Papanna no conflict between the provisions of S. 49 of the Registration Act, 1908, and those of S. 34 of the Karnataka Stamp Act, 1957, inasmuch as, the two operated in different fields and one didn't frustrate the purpose underlying the other. ( 5 ) SECTION 49 of the Registration Act, 1908, stipulates the effect of non-registration of documents which are under S. 17 of the said Act compulsorily registrable. It inter alia provides that no document required by S. 17 to be registered but which is not so registered shall affect the immovable property comprised therein or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. Proviso to S. 49, however, makes an exception to the general rule against the use of such unregistered document. It permits an unregistered document affecting immovable property to be received among others for the purpose of proving any collateral transaction not required to be effected by a registered instrument. The legal position as regards the use of documents that are compulsorily registrable but have not so been registered is clear from a plain reading of the proviso itself. ( 6 ) THE only area of controversy in regard to the use of such documents lies in determining whether the purpose for which it is sought to be used is really a collateral purpose. In Rana Vidya Bhushan Singh v. Shri Rati Ram (1969) 1 SCWR 341 the Apex Court held that even when an unregistered lease deed for a period of fifteen years was not admissible in evidence in support of the creation of the lease in that period, yet the document could support the plea that the possession of the person in whose favour the same was executed was that of a tenant. To the same effect are the decisions of the Supreme Court in Padma Vithoba Chakkayya v. Mohd. Multani, AIR 1963 SC 70 and that of the Privy Council in N. Varada Pillai v. Jeevarathnamma, AIR 1919 PC 44. To the same effect are the decisions of the Supreme Court in Padma Vithoba Chakkayya v. Mohd. Multani, AIR 1963 SC 70 and that of the Privy Council in N. Varada Pillai v. Jeevarathnamma, AIR 1919 PC 44. The decision of this Court in Raoji Appaji Kulkarni v. Badibi (1971) 2 Mys LJ 161 and Abdul Razack Sab v. H. K. Gopal Shetty (1973) 1 Mys LJ 541 : (AIR 1974 Mys 7) have following the above decisions reiterated the legal position and declared that even when a document is inadmissible for want of registration, the same is admissible to show the character of the possession of the person in whose favour it is executed. There is therefore no gain said that the unregistered sale deed relied upon by the petitioner could for the limited purpose of proving the nature of his possession be let into evidence notwithstanding the fact that the deed was compulsorily registrable under S. 17, but had not been so registered. The view taken by the Court below does not therefore suffer from any error as indeed none of the two parties have even assailed the correctness of the order to the extent it holds the document to be admissible for a collateral purpose. ( 7 ) THAT a document is being admitted for a collateral purpose does not however necessarily mean that it can be let in for that purpose even when it is not duly stamped. Section 34 of the Karnataka Stamp Act, 1957, deals with instruments not duly stamped and inter alia provides that no instrument which is chargeable to duty shall be admissible in evidence for any purpose or shall be acted upon, registered or authenticated by any person or by any public officer unless such instrument is duly stamped. The expression 'for any purpose' used in S. 34 of the Karnataka Stamp Act, 1957, is wide enough to include use of any document for a collateral purpose or transaction. In Ram Rattan v. Parma Nand, AIR 1946 PC 51, their Lordships held that the words 'for any purpose' used in S. 34 of the Karnataka Stamp Act, 1957, had to be given their natural meaning and would include even a collateral purpose for which the party relying upon the document like the same to be admitted. In Ram Rattan v. Parma Nand, AIR 1946 PC 51, their Lordships held that the words 'for any purpose' used in S. 34 of the Karnataka Stamp Act, 1957, had to be given their natural meaning and would include even a collateral purpose for which the party relying upon the document like the same to be admitted. The following passage in this regard is apposite :"the words 'for any purpose' in S. 35, Stamp Act, should be given their natural meaning and effect and would include a collateral purpose. Where an unstamped document is admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the statute has prohibited. Consequently 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. " ( 8 ) IT is therefore difficult to accept the submission made by Mr. Shetty that just because an unregistered document can be admitted in evidence for proving a collateral transaction, any such use would entitle the document to be marked as an exhibit dehors the provisions of S. 34 of the Karnataka Stamp Act, 1957. The provisions of S. 49 of the Act remain limited to the consequences of non-registration of compulsorily registrable documents. The said provision does not deal with or stipulate the consequence that follow if an instrument sought to be proved is not duly stamped. That part is provided for separately by provisions of S. 34 of the Karnataka Stamp Act, 1957, which does not make any exception in favour of documents sought to be admitted in evidence for proving a collateral transaction. So long as an instrument is chargeable with duty, the provisions of S. 34 would render it inadmissible in evidence for any purpose unless the same is duly stamped. ( 9 ) THE proviso to S. 34 prescribes the conditions subject to which a document which is not duly stamped can be admitted in evidence. It inter alia provides for payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, the amount which is required to make up such duty together with the prescribed penalty. It inter alia provides for payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, the amount which is required to make up such duty together with the prescribed penalty. Suffice it to say that there is no conflict between what is permitted by the proviso to S. 49 of the Registration Act on the one hand and S. 34 of Karnataka Stamp Act, 1957, on the other. The demand of duty and penalty in terms of the proviso to S. 34 before the document could be marked in token of its having been admitted in evidence did not therefore suffer from any error of law to warrant interference. As a matter of fact, whenever an objection regarding the admissibility of an instrument on the ground of its being unstamped or insufficiently stamped is raised, the Court is required to determine the objection before proceeding any further, unlike other cases where an objection to the admissibility of a document on any other ground may be examined at a later stage and the document tentatively marked to avoid delay in recording of the evidence. The decisions of the Supreme Court in Ramratan v. Bajrang Lal, AIR 1978 SC 1393 and Bipin Shantilal Panchal v. State of Gujarat, 2001 Cri LJ 1254 : ( AIR 2001 SC 1158 ) and that of a single Judge of this Court in Riyaz Khan v. Modi Mohammed Ismail, ILR (2002) Kant 3369 : (2002 AIR - Kant HCR 2568) clearly settle the legal position in this regard. ( 10 ) THE only other question that was argued by Mr. Shetty was whether the amount of duty and penalty on the sale deed relied upon by him could be determined by the Court itself or a reference to the Registrar of Stamps was necessary. There is no provision in Karnataka Stamp Act, 1957, nor has Mr. Shetty brought any to my notice which would envisage a reference to the Registrar of Stamps for determining the duty payable on any instrument. The scheme of S. 34 of the Karnataka Stamp Act, 1957, also does not envisage any such reference being made before the document could be marked. Shetty brought any to my notice which would envisage a reference to the Registrar of Stamps for determining the duty payable on any instrument. The scheme of S. 34 of the Karnataka Stamp Act, 1957, also does not envisage any such reference being made before the document could be marked. The amount of duty payable on the sale deed (in the absence of any material to show that the property had been under valued), is relatable to the consideration that was paid and received by the parties to the transaction. The penalty amount leviable on the instrument also didn't require or call for any enquiry which could possibly call for a reference to the Registrar. The Court below was therefore justified in holding that the duty payable on the instrument as also the penalty had to be calculated by the Court and not by the Registrar as argued by the plaintiff. ( 11 ) IN the result, these revision-petitions fail and are hereby dismissed, but in the circumstances without any orders as to costs. Petition dismissed. --- *** --- .