Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 88 (AP)

Alwanpally Ashanna v. K. Narasimha Chary

2011-02-04

B.SESHASAYANA REDDY

body2011
ORDER This revision is directed against the order dated 10.02.2010 passed in I.A.No.1398 of 2009 in a.s.No.90 of 2003 on the file of the Senior Civil Judge at Mahabubnagar, whereby and whereunder, the learned Senior Civil Judge dismissed the application filed by defendant No.13 under Section 31 of the Stamp Act. 2. The respondent is the plaintiff in a.S.No.90 of 2003. He filed the suit for declaration of title, recovery of possession, cancellation of registered sale deed and for mesne profits against the defendants numbering fourteen. The defendants filed written statement resisting the claim of the plaintiff. Defendant No.l3 claimed possession over the property pursuant to private sale deed dated 26.5.1978. The trial has been commenced in the suit. When the 13th defendant sought to mark private sale deed dated 26.5.1978, the plaintiff is stated to have raised an objection for marking the document as the same is not properly stamped. Thereupon, the 13th defendant filed I.A.No.1398 of 2009 under Section 31 of the Stamp Act to send the original private sale deed dated 26.5.1978 to the District Collector for impounding the same. The plaintiff filed counter resisting the application. It is pleaded in the counter that the sale deed is not a genuine one and it is fabricated one and therefore, the same is not required to be sent to District Collector for impounding. 3. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the document sought to be sent for impounding is a sale deed and as the same is not registered, and therefore, it is not required to be sent for impounding and thereby, proceeded to dismiss the petition, by order dated 10.02.2010. For better appreciation, I may refer paras (8) and (9) of the order passed by the learned Senior Civil Judge, which reads as hereunder:- "A perusal of the document termed as private sale deed appears to be in respect of 10-00 acres of land. Presuming for a moment that the sale deed is sent for impounding and for collection of stamp duty and penalty and after payment of the stamp duty and penalty the defect with regard to the stamp duty would be cured. Presuming for a moment that the sale deed is sent for impounding and for collection of stamp duty and penalty and after payment of the stamp duty and penalty the defect with regard to the stamp duty would be cured. However, the inherent defect with regard to registration, which is an incurable defect will sustain even after the payment of the stamp duty and penalty. Payment of stamp duty and penalty by itself will not cure the defect of registration required for the sale deed, the document will not be admitted in evidence before this Court. Nowhere it is mentioned by the petitioner herein that the document is meant for collateral purpose. For the time being since the petitioner has come up with this petition to send the document for impounding the same could not considered as it will not serve any purpose to cure the defect of the document. Though it is pointed out by the respondents counsel with regard to the date of the purchase of the stamp with that of the date of execution of the document it is premature stage to express anything on the said objection raised by the respondent herein. Viewed from any angle the petition is devoid of merits and it is dismissed". The order passed by the learned Senior Civil Judge is under challenge in this revision. 4. Notice before admission came to be ordered on 30.04.2010. The respondent plaintiff entered appearance through a counsel. 5. Heard learned counsel appearing for the parties. 6. Learned counsel appearing for the petitioner-defendant No.13 submits that the petitioner sought to mark the document after getting it impounded for collateral purpose, which is permissible under proviso to Section 49 of the Indian Registration Act, and therefore, the trial Court is not justified in refusing to send the document for impounding. In support of his submissions, reliance has been placed on the decisions of this Court in S.B.Taramma v. D.Narasaiah (1) 1977 AL T 107, P.M.Anand Babu v. Mir Akbar Ali Khan (2) AIR 2004 243 (A.P.), Nookala Krishnaiah v. Nookala Dakshina Murthy (3) 2007 (5) ALT 758 , Ameena Bee @ Choti Bee v. Ahmedunnisa Begum (4) 2010 (6) ALT 9 = 2010 (4) ALD 31 and Guntupalli Vellkata Ramaiah v. Guntupalli Purnachandra Rao (5) 2010 (6) ALT 511 = 2010 (6) ALD 4 . 7. 7. Learned counsel appearing for the respondent-plaintiff submits that the petitioner-defendant No.13 sought to rely on the document in question to claim the title over the property and the document being unstamped and unregistered, the same cannot be admitted in evidence. A further submission has been made that when the petitioner wants to substantiate his claim basing on the said document, it cannot be said that he sought to mark the document for collateral purpose. In support of his contention, he placed reliance on the judgment of the Supreme Court in K.B.Saha and Sons Private Limited v. Development Consultant Limited (6) 2008 (8) SCJ 717 = 2009 (5) ALT 32.1 (DN SC) = (2008) 8 SCC 564 and A.Parvathi v. P.Chanti @ Chinnammayi (7) 1993 (2) ALT 572 . 8. The relief sought for in the petition filed by the petitioner in the trial Court is to send the private sale deed dated 26.5.1978 to the District Collector, Mahabubnagar for impounding. For better appreciation, I may refer the relief sought for in the petition, which reads as hereunder:- "For the reasons stated in the accompanying affidavit it is therefore prayed that the Hon'ble Court may be pleased to pass an order to send the original private sale deed dated 26-5-1978 to the District Collector, Mahabubnagar for impounding the documents, otherwise petitioner/ plaintiff will get an irreparable loss and hardship, it cannot be recoverable.. ..." 9. The prayer sought for by the petitioner is very simple that the document is not properly stamped and therefore, the same is required to be impounded. 10. Section 31 of the Indian Stamp Act reads as hereunder:- 31: Adjudication as to proper stamp (1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than [fifty naye paise] as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable. (2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly: Provided that- (a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an inquiry as to the duty with which the instrument to which it relates is chargeable; and (b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid." 11. The petitioner by making the application requires the Collector to adjudicate as to payment of proper stamp duty and penalty on the private sale-deed. Under proviso to Section 49 of the Indian Registration Act, an unregistered document can be received in evidence of any collateral transaction not required to be effected by registered instrument. It is well settled that a document required to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. 12. It is suffice to say that the relief sought for by the petitioner in the petition is to send the private sale deed to the District Collector for adjudicating the proper stamp duty and penalty. After proper payment of stamp duty and penalty only, the question whether the document is sought to be received for collateral purpose which is totally unrelated to the transaction arises. After payment of such stamp duty and penalty, it is for the trial Court to determine on merits in accordance with law whether the said documents are being tendered into evidence for any collateral purpose or otherwise. After payment of such stamp duty and penalty, it is for the trial Court to determine on merits in accordance with law whether the said documents are being tendered into evidence for any collateral purpose or otherwise. In that view of the matter, the order impugned in the revision cannot be sustained and the same is liable to be set aside. However, the respondent-plaintiff is at liberty to raise objections with regard to the admissibility of the document when it is tendered in evidence. 13. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 10.02.2010 passed in LA.No.1398 of 2009 in O.S.No.90 of 2003 on the file of the Senior Civil Judge, Mahabubnagar. Consequently, I.A.No.1398 of 2009 stands allowed. There shall be no order as to costs.