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2007 DIGILAW 936 (MAD)

Sabanayagam v. Balasubramanian

2007-03-14

S.ASHOK KUMAR

body2007
Judgment :- These Civil Revision Petitions are filed by the plaintiff in the suit as against the order permitting the third defendant, respondent herein to file the document dated 22. 1997 which is unstamped and unregistered to be admitted in evidence. 2. The third defendant filed the applications under Order 18 Rule 17 read with Section 151 CPC to recall P.W.1 to mark the disputed voucher dated 22. 1997 accepting the same as a document and to proceed with the suit. According to the third defendant/respondent, the plaintiff has agreed that already a oral partition had took place and he has released his rights in the suit property and to vouch the same, he has executed an agreement in the nature of a voucher which has been written on a Ten Rupees stamp paper and the same does not require any stamp duty or registration as no transfer of any right has took place as per the recitals of the said voucher. It is also the case of the respondent that the plaintiff has admitted his signature in the said document and he cannot have any legal objection in marking the same as a document in the evidence. 3. The revision petitioner/plaintiff resisted the said application by contending that no oral partition took place as stated by the third defendant; his rights did not extinguish; even on the same date namely, 22. 1997 the plaintiff and the third defendant have executed a sale deed relating to a portion of a suit property; the alleged vouched is a concocted document and the third defendant has to prove the applicability, enforceability and endorsement made by the plaintiff; the recitals would show that it is a partition and release deed which requires sufficient stamp duty and compulsory registration. 4. The learned Additional Subordinate Judge, Mayiladuthurai on a consideration of the averments and the recitals found in the document allowed the applications holding that no right being passed on to any party or extinguishment of any right by such recitals and therefore the disputed document may not require stamp duty and compulsory registration and it is only in the nature of a voucher. Aggrieved of the same, the present revisions are filed by the plaintiff. 5. Aggrieved of the same, the present revisions are filed by the plaintiff. 5. Learned counsel for the revision petitioner contended that even the nomenclature of the document as voucher is accepted, as seen from the contents of the document it is seen that the document has to be properly stamped and registered and in the absence of the same the same is inadmissible in evidence for any purpose in view of the bar in Section 35 of the Stamp Act and Section 49 of the Registration Act. Learned counsel also relied on the judgment of this court rendered in CRP(PD) No:1526 of 2006 in support of his contention where this court after classifying the various judgments of the High Courts as well as the Apex Court, held that no document shall be admitted in evidence if it is not properly stamped, and if already not stamped, then stamp duty should be paid with penalty as prescribed by the authority and thereafter admit the document in evidence, whether it is for collateral purpose or otherwise, which could be decided at the later stage while hearing the case. 6. In this respect it has to be seen whether the disputed document requires to be stamped property and also registered compulsorily. Even a cursory reading of the recitals would show that both the parties have apportioned the properties as per the oral partition already reached between them and by selling the properties allotted to Sabanayagam Pillai, he has taken the entire sale proceeds and releasing his rights to the other party. The very recitals in the document runs as follows:- Tamil This would only show passing of the rights on the third defendant with regard to the remaining properties and also relinquishing the rights over the said properties by the executant or his legal heirs. Therefore, it cannot be stated that the document does not required to be stamped and registered. 7. In CRP (PD) No:1526 of 2006, this court while following the judgment of Thanikachalam, J., in an identical issue of admissibility of the unstamped and unregistered documents, held as follows:- "18. Therefore, it cannot be stated that the document does not required to be stamped and registered. 7. In CRP (PD) No:1526 of 2006, this court while following the judgment of Thanikachalam, J., in an identical issue of admissibility of the unstamped and unregistered documents, held as follows:- "18. In the second case viz., Chilakuri Gangulappa Vs Revenue Divisional officer, Madanpalle and another (2000 2 MLJ 33, the Apex Court considering Sec.38 of the Indian Stamp Act, 1899, and the fact under what circumstances, as insufficiently stamped document could be admitted in evidence, has observed that it is the duty of the Court, at the first instance, that if the Court finds that the instrument is insufficiently stamped, it should call upon the party, as to whether he would remit the deficient portion of the stamp duty together with a penalty, amounting to ten times the deficiency, and in the case if the party agrees to remit the said amount, the Court has to proceed with trial, after admitting the document in evidence. The, it contemplates what are the further proceedings to be initiated under Sec.38 of the Stamp Act etc. In the case involved in the above decision also, an insufficiently stamped document came to the consideration of the Apex Court. If the Apex Court was of the view that un-stamped or unregistered documents are, automatically, to be admitted in evidence, without reference to Section 35 of the Indian Stamp At, then the Apex Court would not have observed that the Court should call upon the party to remit the deficient portion of the stamp duty together with a penalty, amounting to ten times the deficient or even the lesser penalty. Since the Apex Court was conscious about Section 35 of the Stamp Act, while considering Section 38, it is observed on the basis of Section 38(1) of the Stamp Act:- It is clear from the first sub section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance of such condition, the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. When the court chooses to admit the document on compliance of such condition, the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. Thus, showing, if the party fails to pay the stamp duty and penalty, the document is not to be admitted in evidence, in view of the embargo contemplated under Section 35 of the Stamp Act. This ruling also, supports Section 35 of the Stamp Act, that no document shall be admitted in evidence for any purpose, unless it is properly stamped, and in case, if it is not properly stamped, without payment of stamp duty and penalty and that is the reason, we find the words in Sec.38(1) of the Stamp Act that when the person impounding an instrument in evidence, upon payment of a penalty, as provided by Sec.35 or of duty as provided by Sec.37...thereby confirming, without payment of stamp duty and penalty, no document shall be admitted in evidence. Xx xx xx xx xx 20. There cannot be any dispute, as long as Section 35 of the Stamp Act is available in the Statute, that the same is to be applied for all the instruments, which require stamp duty. This being the position, unless a finding is given as observed by the three Judges Bench of the Apex Court, in Bipin Shantilal Panchal V. State of Gujarat (2001) 3 SCC 1 , regarding the stamp duty and penalty, the document cannot be admitted in evidence, as if it can be looked into for collateral purpose. No doubt, it is true, a document, which is unregistered or unstamped can be looked into for collateral purpose, provided, provisos to Sec.35 of the Stamp Act are complied with, and not otherwise. The above position of law was not considered properly by the trial court and therefore, the order of the trial Court requires modification, in my considered opinion, in view of the admitted position that the documents in question, require stamp duty and penalty". 8. Therefore, it is clear that when once the document which ought to have been compulsorily stamped and registered, on failing to do so, such document cannot be admissible in evidence. Therefore, the impugned orders of the learned Trial Judge in both the revisions are set aside and the revisions are allowed. 8. Therefore, it is clear that when once the document which ought to have been compulsorily stamped and registered, on failing to do so, such document cannot be admissible in evidence. Therefore, the impugned orders of the learned Trial Judge in both the revisions are set aside and the revisions are allowed. However, it is made clear that if the third defendant/respondent still wants to rely on the document which is sought to be marked as evidence, then he shall pay the proper stamp duty payable on the said instrument as well as the penalty, and then on payment of stamp duty and penalty, the same could be marked in evidence. 9. Consequently, connected MP is closed. No costs.