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2012 DIGILAW 1836 (RAJ)

Indu v. Narsingh Das

2012-08-24

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—In this petition, the petitioner is challenging the validity of order dated 18.10.2011 whereby document Annex. 3 dated 11.5.1969 was accepted for evidence by the trial Court for collateral purpose. 2. As per facts of the case the plaintiff-respondent filed a suit and entire claim was made in the plaint on the basis of a hand-written letter dt. 11.5.1969 on a plain paper. During the pendency of the suit, the petitioner filed an application under O. 13 R. 3, CPC, read with Secs. 17 and 49 of the Registration Act and Secs. 33 and 35 of Indian Stamps Act before the trial Court. 3. In the application it is submitted that document written on plain paper dated 11.5.1969 is neither properly stamped nor registered, therefore, the said document may be rejected. The trial Court allowed the said application filed by the petitioner and document dated 11.5.1969 filed by the plaintiff-respondent was held to be inadmissible in evidence. 4. The plaintiff-respondent preferred writ petition before this Court by way of filing S.B. Civil Writ Petition No. 4752/2008 but the same was dismissed by this Court on 16.12.2008. However, it was kept upon for the plaintiff-respondent, if he so desired, to make a prayer with regard to the document for collateral purpose before the trial Court. The plaintiff-respondent in pursuance of the liberty granted by this Court moved an application on 9.1.2009 before the trial Court praying that the document dated 11.5.1969 may be admitted in evidence for collateral purposes for establishing possession etc. of the plaintiff-respondent over plot No. 47-B. 5. The petitioner filed reply to the above application. Thereafter, the trial Court passed an order on 18.10.2011 by which the application filed by respondent No. 1 has been allowed and document dated 11.5.1969 has been admitted in evidence for collateral purpose. In this writ petition, the petitioner is challenging the said order on the ground that the document dated 11.5.1969 cannot be treated to be admissible in evidence for collateral purpose also because it is not properly stamped and registered as required under Section 49 of the Registration Act. In this writ petition, the petitioner is challenging the said order on the ground that the document dated 11.5.1969 cannot be treated to be admissible in evidence for collateral purpose also because it is not properly stamped and registered as required under Section 49 of the Registration Act. But, the learned trial Court allowed the application ignoring the judgment of the Supreme Court reported in AIR 2009 SC 1489 , therefore, it is abundantly clear that trial Court has clearly erred in law in passing the impugned order for admitting the document dated 11.5.1969 in evidence for collateral purpose. Therefore, it is prayed that the order impugned may be quashed. 6. Learned counsel for the petitioner vehemently argued that the trial Court miserably failed to appreciate the law on the point and side-tracked the case cited by the petitioner, reported in AIR 2009 SC 1489 which consciously goes to show that provisions of Section 49 are applicable to suits for specific performance of contract. It is pointed out by learned counsel for the petitioner that the plaintiff-respondent has claimed right/title and possession over the plot in question solely on the basis of document in question and nowhere named the document for collateral purpose, therefore, the order impugned suffers from patent illegality. 7. Learned Senior Advocate vehemently argued that it was incumbent upon the trial Court to examine the nature of the suit because the plaintiff-respondent himself asserted his title as owner, therefore, there is no question admissibility of document dated 11.5.1969 for collateral purpose because it is not even case of the plaintiff-respondent. Therefore, this writ petition may be allowed and order impugned may be quashed. 8. Per contra, learned counsel appearing for the respondent submits that order passed by the trial Court is in consonance with law because document dated 11.5.1969 was filed only to show possession, therefore, learned trial Court admitted the said document. Therefore, there is no illegality in the order impugned. 9. After hearing learned counsel for the parties, I have perused the order impugned as well as Annex. 3 which is written on a plain paper. 10. Upon perusal of the said document, it is revealed that by this document rights have been relinquished in favour of the plaintiff-respondent but, in fact, the said document is not even stamped properly nor registered. 3 which is written on a plain paper. 10. Upon perusal of the said document, it is revealed that by this document rights have been relinquished in favour of the plaintiff-respondent but, in fact, the said document is not even stamped properly nor registered. In the judgment rendered by Hon'ble Supreme Court in the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra, reported in (2009) 2 SCC 532 , Hon'ble apex Court made following adjudication: "17. The Parliament has, in Section 35 of the Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the aforementioned provisions. 23. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined:- "5. The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized." 25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized." 25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes." 11. Same view has been taken by the Andhra Pradesh High Court in the judgment reported in AIR 2012 A.P. 110 , in which, it has been held that such document which is not registered and unstamped is not admissible in evidence. Para 24 and 25 of the said judgment are as follows: "24. As discussed above, the document sought to be filed is nothing but a partition deed creating right and title in the lands said to have been allotted to the parties. It is settled law that registration of document which is to be required under Section 17(1)(b) of the Registration Act makes the document inadmissible in evidence. Under Section 49(c) of the Registration Act, no document required by Section 17 to be registered shall be received as evidence of any transaction affecting the said property unless it has been registered. Of course the proviso says that an unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be affected by registration of instrument. 25. The A.P. Amendment Act 17 of 1986 came into force with effect from 16.8.1986 and definition of `instrument of partition' under Section 2(15) of the Indian Stamp Act has been amended. As referred in the above paragraphs even a memo recording past partition is also brought within the definition of instrument of partition' by virtue of the said amendment. Thus, the argument that a document is merely a record of family arrangement, settlement or acknowledgment of prior partition and admissible for collateral purpose is no more available after the above amended provisions of Indian Stamp Act came into force. Thus, the argument that a document is merely a record of family arrangement, settlement or acknowledgment of prior partition and admissible for collateral purpose is no more available after the above amended provisions of Indian Stamp Act came into force. Section 35 of the Indian Stamp Act is very clear and creates a clear bar and therefore unstamped document is inadmissible in evidence for any purpose. Admittedly the alleged document i.e. partition deed is chargeable with duty. In view of the settled legal position i.e. the bar engrafted under Section 35 of the India Stamp Act is an absolute bar and therefore the document cannot be used for any purpose unlike the bar contained in Section 49 of the Registration Act. 12. In this case, it is abundantly clear that document Annex. 3 dated 11.5.1969 is totally unstamped and not registered, therefore, as per the adjudication made by the Hon'ble Supreme Court the said document is not even admissible for collateral purpose too because in Section 35, words "for any purpose whatsoever" have been advisedly used. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking Section 35 of the Registration Act. If all purposes for which the document is sought to be brought in evidence are excluded, there is no reason as to how the document would be admissible for collateral purpose. 13. In this view of the matter, while following the adjudication made by the Hon'ble Supreme Court, this writ petition is allowed. Order impugned dated 18.10.2011 is hereby quashed and set aside.