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2013 DIGILAW 46 (AP)

Kukku Venkataratnam v. K. Sujilabai

2013-01-28

L.NARASIMHA REDDY

body2013
Judgment : The petitioner filed O.S.No.20 of 2003 in the Court of Additional Senior Civil Judge, Tirupati, for the relief of specific performance of two agreements of sale, dated 29.07.1991 and 01.12.1992. During the trial of the suit, the petitioner sought to file the agreements referred to above. An objection was raised stating that the agreements are not properly stamped and not registered. Therefore, the petitioner filed an application to send the documents to the Collector under the Indian Stamp Act for collection of stamp duty and penalty. It is stated that the authority, to whom the documents were marked, refused to impound them by observing that the property covered by the agreements belongs to Sri Swamy Hathiramji Mutt and obviously, they sought to enforce Section 22A of the Registration Act as amended by A.P. Act 19 of 2007 (for short ‘the Act’). With this background, the petitioner sought to make the documents part of the record once again. On behalf of the respondents, an objection was raised. Therefore, the trial Court heard the matter in detail and passed an order, dated 29.08.2012 refusing to receive the documents. It was observed that the person, who executed the agreements of sale himself did not have title and that though there is a mention as to delivery of possession, the agreements were not registered as required under Section 17 of the Act. Placing reliance upon the judgment of this Court in BurraAnitha vs. Elagari Mallava and others ( 2010 (6) ALT 128 ), the trial Court took the view that a document, which is insufficiently stamped cannot be received even for collateral purpose. The said order is challenged in this revision. Sri Nimmagadda Satyanarayana, learned counsel for the petitioner submits that the objection raised as to the registration of the documents is untenable, in view of the facility created under proviso to Section 49 of Registration Act. He further submits that the objection as to the insufficiency of stamp duty was addressed on earlier occasion and once the document has been sent to an authority under the Indian Stamp Act and he returned the same, it must be assumed that there is proper compliance. He contends that the trial Court was not justified in expressing its view on the question of title of the executant of the agreements. He contends that the trial Court was not justified in expressing its view on the question of title of the executant of the agreements. Sri J.M. Naidu, learned counsel for the respondents, on the other hand, submits that unless the documents are properly stamped, they cannot be received in evidence and even by this time, the defect as to deficiency of stamp duty was not rectified. He further submits that the requirement as to registration is also equally important. The basis for the petitioner to claim the relief of specific performance is the set of two agreements referred to above. Admittedly, the agreements are not registered. The question as to whether they were required to be registered and if so, whether they can be received in evidence would be considered a bit later. The objection about the admissibility, on the ground that the documents are not sufficiently stamped was raised at an earlier stage. Obviously, to get that defect cured, the petitioner filed an application seeking reference of the same to the Collector under the Indian Stamp Act. However, no determination as such has taken place before that authority, on the ground that the property covered by the agreements attracts Section 22-A of the Act. Whenever a document, which is required to be stamped under the relevant provisions of law, is either not stamped at all or is insufficiently stamped, the Indian Stamp Act prohibits the same from being received in evidence, before any Court or authority. However, such defect can be cured, by collecting deficit stamp duty and in certain cases, by levying penalty. In the instant case, an effort to get the defect cured was made. If the authority conferred with the power to cure the defect refuses to do so, the party cannot be pushed to a state of helplessness. The readiness on the part of the concerned party to pay the deficit stamp duty and penalty, if any, before the competent authority can be treated as a sufficient ground to receive the document in evidence, if the concerned authority expresses inability or refuses to cure the defect. This may sound a bit abnormal and departure from the normal practice. The same is however resorted to, lest the entire proceedings get locked up in an inextricable or vicious circle. This may sound a bit abnormal and departure from the normal practice. The same is however resorted to, lest the entire proceedings get locked up in an inextricable or vicious circle. The trial Court placed reliance upon the judgment in BurraAnitha’s case (1 supra) in support of its view that an insufficiently stamped document cannot be received in evidence for any purpose whatever. In that case, an objection as to the admissibility of a document, at the stage of enquiry into an interlocutory application filed under Order 39 Rules 1 and 2 C.P.C., was raised, on the ground that it was improperly stamped and not registered. The trial Court took the view that the question as to admissibility of such document can be considered at the stage of hearing of the suit and it cannot be received in evidence, at the interlocutory stage. This Court took the view that even at the interlocutory stage, an unstamped or improperly stamped document cannot be received in evidence. Similar observation was made about the registration. However, it is not clear as to whether the suit was filed for the relief of specific performance of an agreement of sale. It has already been mentioned that the petitioner did make efforts to get the defect as to insufficiency of stamp duty cured, but his efforts did not fructify. Further, the facts of BurraAnitha’s case (1 supra) are substantially different from those in the case on hand. While there cannot be any quarrel with the principle laid down in that judgment, the peculiarity of the facts of the present case cannot be ignored. Coming to the question of registration, the plea of the respondents was based upon an amendment caused to Article 47-A of the Indian Stamp Act and the relevant provisions of the Act, which provide for registration of an agreement of sale also, in case it contains a clause as to delivery of possession. Though there is some dispute as to whether the amendment covers the agreements in question, the facility created under provsio to Section 49 of the Act cannot be lost sight off. The proviso carves out two exceptions to the principle that if a document which is otherwise required to be registered cannot be received in evidence, unless it is registered. Though there is some dispute as to whether the amendment covers the agreements in question, the facility created under provsio to Section 49 of the Act cannot be lost sight off. The proviso carves out two exceptions to the principle that if a document which is otherwise required to be registered cannot be received in evidence, unless it is registered. The first is when it is relied upon in a suit for specific performance and the second is when it is sought to be used for collateral purpose. Since the suit on hand is the one for specific performance, the bar contained under Section 49 of the Act cannot be applied. Therefore, the view taken by the trial Court as to admissibility of the document cannot be sustained. While examining the matter about the admissibility of the document, the trial Court made certain observations touching upon the title of the vendor of the petitioners. This is not the stage to deal with the same. While dealing with the admissibility of the document, proper care must be taken to avoid any observation or indication touching upon the merits of the matter. May be, the contents are to be taken note of. This is only in the limited context of application of the provisions of the Indian Stamp Act or the Registration Act and not otherwise. Therefore, the civil revision petition is allowed and the order under revision is set aside. The documents in question shall be received in evidence, subject to proof and relevance. Since the Collector expressed the view that the deficit stamp duty on the document cannot be received, on the ground that the property is recorded in the name of Sri Swamy Hathiramji Mutt, the trial Court shall insist on the petitioner, to implead the Mutt as one of the defendants and proceed further, after the Mutt is made as a party and it is given an opportunity to file its written statement. The civil miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.