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Madhya Pradesh High Court · body

2011 DIGILAW 917 (MP)

Sunil Kumar v. Babu Bhai

2011-08-10

N.K.MODY

body2011
JUDGMENT : Being aggrieved by the order dated 11.2.2010 passed by4th Addl. District Judge, Mandsaur in Civil Suit No.8-A/2009, wherebyapplication filed by the respondent No.1 for taking photocopy of the familyarrangement dated 30.1.94 on record as secondary evidence was allowed, presentpetition has been filed. Short factsof the case are that respondent No.1 filed a suit for declaration, specificperformance and permanent injunction, in which the reliance was placed on afamily arrangement, which took place on 30.1.94. The suit was contested by thepetitioners on various grounds. On the basis of the pleadings of the partieslearned trial Court framed the issues and fixed the case for evidence, whereinit was prayed that respondent No.1 be permitted to produce photocopy of thefamily arrangement dated 30.1.94 in secondary evidence as the original is inpossession of petitioners. The application was contested by the petitioners.After hearing the parties, learned Court below allowed the application andpermitted the respondent No.1 to adduce the family arrangement dated 30.1.94 insecondary evidence against which present petition has been filed. Learnedcounsel for petitioner argued at length and submits that impugned order passedby learned Court below is illegal, incorrect and deserves to be set aside. Learnedcounsel submits that the document, which is not properly stamped cannot be allowed to be adduced in secondary evidence. It is submitted that thephotocopy of the family arrangement, which has alleged to have taken placebetween the parties on 30.1.94 and the original is not properly stamped,therefore, respondent No.1 could not have been permitted by the learned Courtbelow to adduce the same in secondary evidence. Reliance is placed on adecision of Hon'ble Apex Court in the matter of Hariom Agrawal Vs. PrakashChand Malviya, reported in (2007) 8 SCC 514 , wherein the Hon'ble Apex Court hasheld that it is now well settled that copy of the instrument cannot bevalidated by impounding and it cannot be admitted as secondary evidence underthe Stamp Act ,1899 . From the decisions of the SupremeCourt and a plain reading of Sections 33, 35 and 2(14) of the Stamp Act ,1899 , it is clear that an instrument which is not dulystamped can be impounded and when the required fee and penalty has been paidfor such instrument, it can be taken in evidence under Section 35 of the stampAct. From the decisions of the SupremeCourt and a plain reading of Sections 33, 35 and 2(14) of the Stamp Act ,1899 , it is clear that an instrument which is not dulystamped can be impounded and when the required fee and penalty has been paidfor such instrument, it can be taken in evidence under Section 35 of the stampAct. Sections 33 or 35 are not concerned with any copy of the instrument andparty can only be allowed to rely on the document which is an instrument withinthe meaning of Section 2(14) of the Stamp Act. The instrument as per definitionunder Section 2(14) has a reference to the original instrument. There is noscope for the inclusion of the copy of the document for the purposes of theStamp Act. Furtherreliance is placed on a decision in the matter of Avinash Kumar Chauhan Vs.Vijay Krishna Mishra, reported in 2009(1) Supreme 58 , wherein the Hon'ble ApexCourt has observed that even though there is no prohibition under Section 49 ofRegistration Act to receive an unregistered document in evidence for collateralpurpose. But document so tendered should be duly stamped or should comply withrequirements of Section 35 of Stamps Act, if not stamped as a document cannotbe received in evidence even for collateral purpose unless it is duly stamped.Contention of appellant that document was admissible for collateral purpose washeld not correct. On theaforesaid strength of law it is submitted that impugned order passed by learnedCourt below is illegal, incorrect and deserves to be set aside. It is submittedthat petition be allowed and impugned order be quashed. ShriM.K.Jain, learned counsel for respondent No.1, submits that execution of thefamily arrangement dated 30.1.94 is admitted by the petitioners in theirwritten statement and the plea, which has been taken by the petitioners is thatthe said family arrangement was inoperative. Learned counsel further submitsthat the petitioners are claiming rights over the suit property on the basis ofthe sale deed, which was executed by the father of the respondent No.1 on thebasis of the family arrangement dated 30.1.94. Learned counsel further submitsthat since the document is a family arrangement, therefore, the same was notrequired to be stamped. It is submitted that since the document itself is notrequired to be stamped, therefore, question that document was not properlystamped does not arise. It is submitted that evidence has yet to begin. Learned counsel further submitsthat since the document is a family arrangement, therefore, the same was notrequired to be stamped. It is submitted that since the document itself is notrequired to be stamped, therefore, question that document was not properlystamped does not arise. It is submitted that evidence has yet to begin. It issubmitted that the petitioners are having full opportunity to object the executionof the document in evidence. It is submitted that in the facts andcircumstances of the case application filed by the petitioners be dismissed. Undisputedly,the nature of the document is family arrangement on the basis of which the suithas been filed by respondent No.1, which is dated 30.1.94. It is also not indispute that the document, which has been filed by the respondent No.1 is a photocopy as in spite of notice the petitionersdid not file the document on the ground that petitioners are not in possession.It appears that at the time of passing of impugned order learned Court belowhas not examined this aspect of the case whether the document familyarrangement is at all required to be registered or stamped or not. In the factsand circumstances of the case, petition filed by the petitioners is allowed andthe impugned order is set aside with a direction to the learned trial Court tore-decide the objections raised by the petitioners and at that time learnedCourt below shall also take into consideration the ground, which has beenraised by respondent No.1 that the document in question is neither required tobe stamped nor registered. With theaforesaid observations petition stands disposed of. No order as to costs.