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2011 DIGILAW 421 (MP)

Mamta Awasthy v. Ajay Kumar Shrivastava

2011-04-05

ALOK ARADHE

body2011
ORDER Alokaradhe, J. 1. In this petition under Article 227 of the Constitution of India the petitioners have challenged the validity of the order dated 6-7-2009 passed by the trial Court by which the objection raised by the respondent with regard to admissibility of partition deed dated 2-11-1985 has been upheld and the same has been held to be inadmissible in evidence on the ground that it is neither registered nor properly stamped. 2. Facts, giving rise to filing of the writ petition, briefly stated are that the house bearing number 1664 situated at Gorakhpur, Jabalpur was an ancestral property of which late Narmada Prasad Shukla and Basant Awasthy were the joint owners. On 2-11-1985 a partition deed was executed. Late Narmada Prasad Shukla, Smt. Shyama Bai, wife of Narmada Prasad Shukla late Smt. Munni Bai and late Basant Awasthy were parties to the aforesaid partition deed. Though the partition deed was not registered yet the parties were placed in possession of their respective shares in the year 1985 in pursuance of the partition deed. The parties were given the right of preemption to purchase the property. The respondent who is a stranger to the family, filed the civil suit for specific performance of the contract on the basis of an agreement for sale alleged to have been executed by late Narmada Prasad Shukla in favour of the respondent which was registered as civil suit number C.S. No. 194-A/1994. In the civil suit, the name of late Narmada Prasad Shukla who was arrayed as defendant No. 1 was ordered to be deleted on the ground that he expired during pendency of the suit. The trial Court passed an ex parte decree by which the claim of the respondent for specific performance of the contract was decreed. Late Basant Awasthy who was in possession of his share pursuant to the partition deed dated 2-11-1985 filed an objection under Order 21, Rule 97 of the Code of Civil Procedure resisting the execution of the decree passed in favour of the respondents. The present petitioners are legal representatives of late Basant Awasthy. The case was fixed for recording evidence. The petitioners filed their examination-in-chief in the form of affidavit and the proceeding was fixed for their cross-examination on 17-6-2009. 3. The present petitioners are legal representatives of late Basant Awasthy. The case was fixed for recording evidence. The petitioners filed their examination-in-chief in the form of affidavit and the proceeding was fixed for their cross-examination on 17-6-2009. 3. It is pertinent to mention here that late Basant Awasthy had filed a civil suit, namely, 81-A/2002 in which the partition deed dated 2-11-1985 was marked as an Exhibit. However, the aforesaid civil suit as per petitioner's version was later on dismissed for default. The petitioners had produced the certified copy of the partition deed dated 2-11-1985 in the proceedings under Order 21, Rule 97 of the Code of Civil Procedure. However, the respondent raised an objection that the partition deed was not admissible in evidence as the same was neither registered nor it was properly stamped. The trial Court vide order dated 6-7-2009 upheld the objection raised with regard to admissibility of the document and held that the document in question cannot be held to be admissible even for collateral purposes. 4. Shri A. K. Jain, learned counsel for the petitioners submitted that once the document, namely, the partition deed dated 2-11-1985 was exhibited without any objection raised by the respondent, he was estopped from raising any objection with regard to admissibility of the same on the principle of estoppel by conduct. It was further submitted by him that even though the partition deed is unregistered and unstamped, yet it can be looked into for collateral purposes. Learned counsel for the petitioners while referring to Section 74 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the 1872 Act') submitted that since the partition deed was admitted in evidence in earlier civil suit, it has become the part of record of the Court and by virtue of Section 74(1)(iii) of the 1872 Act is a public document. It was further submitted that in view of Section 76 of the 1872 Act the certified copy of the partition deed can be produced to prove its contents. It was further argued that Section 80 of the Act permits a party to lead the oral evidence. It was further submitted that in view of Section 76 of the 1872 Act the certified copy of the partition deed can be produced to prove its contents. It was further argued that Section 80 of the Act permits a party to lead the oral evidence. While referring to Section 167 of the 1872 Act it was submitted by the learned counsel for the petitioners that improper admission or rejection of evidence shall not be a ground for new trial or reversal of any decision in any case, if it appears to the Court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision or if the rejected evidence had been received, it ought to have varied the decision. In support of his submissions, learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532 : AIR 2009 SCW 979 : ( AIR 2009 SC 1489 ) Barium Chemicals Limited v. Vishwa Bharati Mining Corporation, (2009) 16 SCC 262 and Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : ( AIR 2011 SC 312 ). 5. On the other hand, Shri Amit Shri vastava, learned counsel for the respondent submitted that the respondent/plaintiff had filed a suit in the year 1988 which was decreed in the year 1996. In pursuance of the decree, the sale deed had already been executed in favour of the respondent. The objection which has been preferred by the petitioners is pending adjudication since 2002. Learned counsel for the respondent further submitted that the partition deed dated 2-11-1985 was got exhibited in the absence of the counsel for the respondent. The aforesaid civil suit was withdrawn on 29-12-2002. It was further submitted that mere marking of a document does not dispense with it's requirement of proof. Even if the document in question was marked as an exhibit, the same does not become a part of the record of the Court and, therefore, is not a public document. It was further submitted that if a document is not duly stamped it would be inadmissible even for collateral purposes. It also submitted that if an inadmissible document is admitted in evidence, it can be questioned at any time. It was further submitted that if a document is not duly stamped it would be inadmissible even for collateral purposes. It also submitted that if an inadmissible document is admitted in evidence, it can be questioned at any time. In support of his submissions, learned counsel for the respondent has placed reliance on the decisions in Avinash Kumar Chauhan ( AIR 2009 SC 1489 ) (supra), Dayamathi Bai (Smt.) v. Shri K. M. Shaffi, 2004 (II) MPWN Note 95, Naladhar Mahapatra v. Seva Dibya, AIR 1991 Ori 166 , Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865 , Shyamal Kumar Roy v. Sushil Kumar Agarwal, AIR 2007 SCW 234: AIR 2007 SC 637 ) and Ratan Lal v. Hari Shanker, AIR 1980 All 180 . 6. I have considered the submissions made by learned counsel for the parties. In view of the submissions made by learned counsel for the parties, following issues arise for consideration : (1) whether the respondent is estopped by his conduct from raising an objection with regard to admissibility of the partition deed dated 2-11-1985; (2) whether the partition deed dated 2-11-1985 is a record of the act of the Court and is a public document within the meaning of Section 74(1)(iii) of the 1872 Act; (3) whether the partition deed which is unregistered and unstamped can be looked into for collateral purposes; (4) whether the oral evidence can be adduced by the petitioners to prove that partition deed dated 2-11-1985 was tendered in evidence in civil suit No. 81-A/2002. 7. The relevant extract of Section 35 of the Indian Stamp Act, 1899 (in short 'the 1899 Act') reads as under :-- 35. 7. The relevant extract of Section 35 of the Indian Stamp Act, 1899 (in short 'the 1899 Act') reads as under :-- 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 any 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. Section 36 of the 1899 Act provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 thereof, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not duly been stamped. From perusal of Section 35 of the 1899 Act it is apparent that it casts a duty on the Court not to admit in evidence any document which is not duly stamped. A scrutiny of Section 36 reveals that it bars the objection with regard to admissibility of a document at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. One of the essential elements of estoppel by conduct is that party against whom it is pleaded, should have made some representation intended to induce a course of conduct by the party to whom it was made. In the instant case, this essential element is lacking as document in question was marked as an exhibit in the absence of respondent. Apart from this, Section 35 of the 1899 Act casts a duty on the Court not to admit in evidence any document which is not duly stamped. In the instant case, this essential element is lacking as document in question was marked as an exhibit in the absence of respondent. Apart from this, Section 35 of the 1899 Act casts a duty on the Court not to admit in evidence any document which is not duly stamped. Thus, the contention raised by the learned counsel for the petitioners that objection to admissibility of the document at the instance of respondent cannot be entertained on the ground of the estoppel by conduct, cannot be accepted. Besides that Section 36 of the Indian Stamp Act does not bar such a challenge. Accordingly, the first issue is answered. 8. Section 74 of the 1872 Act which deals with the public document reads as under: 74. Public documents.-- The following documents are public documents : (1) Documents forming the acts, or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents. Perusal of Section 74 reveals that the documents which are record of the acts of the Court are public documents within the meaning of Section 74(1)(iii) of the 1872 Act. There is distinction between the records of the acts of the Court and record of the Court. A private document does not become public document because it is filed in the Court. To be a public document it should be record of act of the Court. In the instant case, admittedly, the partition deed was marked as exhibit. Marking of an exhibit on the document is an act of the Court. Thus, the partition deed is record of the act of the Court and is thus a public document within the meaning of Section 74(1)(iii) of the 1872 Act. Thus, for the aforementioned reasons, it is held that partition deed dated 2-11-1985 is a public document within the meaning of Section 74(1)(iii) of the Indian Evidence Act, 1872. Accordingly, the second issue is answered. 9. I may now advert to the third issue whether the partition deed which is unregistered and unstamped can be looked into for collateral purposes. Thus, for the aforementioned reasons, it is held that partition deed dated 2-11-1985 is a public document within the meaning of Section 74(1)(iii) of the Indian Evidence Act, 1872. Accordingly, the second issue is answered. 9. I may now advert to the third issue whether the partition deed which is unregistered and unstamped can be looked into for collateral purposes. It is well settled in law that relevancy, admissibility and proof are different aspects which should exist before a document can be taken into evidence. Mere production of certified copies of public documents does not prove the same as the question of its admissibility involves that contents must relate to a fact in issue or a fact relevant under various sections of Indian Evidence Act. Section 2(14) of the Indian Stamp Act, 1892 defines the expression "Instrument" which reads as under :-- Instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Section 2(15) defines the expression "Instrument of partition". Thus, from perusal of the aforesaid definitions, it is apparent that an instrument is a document which affects any right of liability. It follows that documents and instruments are not synonymous as every document is not an instrument though every instrument is not a document. Unless the document affects a right or liability, it cannot be an instrument. Section 35 of the Stamp Act provides that no instrument chargeable with duty shall be admitted in evidence for any purpose. The partition deed dated 2-11-1985 is an instrument within the meaning of Section 35 of the Indian Stamp Act. 10. Section 77 of the Evidence Act has been enacted to obviate the production of original public document for evidentiary purpose. The original public document requires no proof and under Section 77 of the Evidence Act, the contents of public document are proved by production of certified copy of such documents. The Indian Evidence Act does not purport to deal with the admissibility of documents in evidence which requires to be stamped under the provisions of Indian Stamp Act. See : Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 . Thus, merely because the document in question is a public document, it is not per se admissible in evidence. It is required to be stamped under the provisions of Indian Stamp Act, 1935. 11. See : Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 . Thus, merely because the document in question is a public document, it is not per se admissible in evidence. It is required to be stamped under the provisions of Indian Stamp Act, 1935. 11. The scope and ambit of Section 35 of the Stamp Act was considered in Ram Rattan v. Parama Nand, AIR 1946 PC 51 wherein it was held was under: 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 aforesaid decision was relied upon by the Supreme Court in Avinash Kumar Chauhan ( AIR 2009 SC 1489 ) (supra) and it was held that if a document is not duly stamped it would not be admissible even for collateral purpose. So far as reliance placed by learned counsel for the petitioner on the decision rendered in Barium Chemicals Ltd. (supra) is concerned, a close scrutiny of paragraph 3 of the decision shows that the Supreme Court has nowhere held that even if a document is not duly stamped under Section 35 of the Stamp Act, the same could be read for collateral purpose. Thus, the third issue has to be answered in the negative by holding that the partition deed dated 2-11-1985 cannot be looked into for even collateral purposes. 12. In view of conclusion arrived at on third issue, fourth issue is rendered academic and need not be decided. 13. For the reasons mentioned in the preceding paragraphs, no interference is called for in the order dated 6-7-2009 passed by the trial Court. It is stated by learned counsel for the respondent that objection under Order 21, Rule 97 of the Code of Civil Procedure is pending since 2002. As the objection is pending since 2002, the trial Court is directed to decide the objection expeditiously preferably within a period of six months from the date of production of certified copy of the order. 14. In the result, the writ petition is dismissed.