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2015 DIGILAW 740 (RAJ)

Ravi Kumar Tank v. Pratap Singh

2015-03-30

MOHAMMAD RAFIQ

body2015
Hon'ble RAFIQ, J.— This writ petition has been filed by the petitioner-defendant challenging order dated 12.3.2015 passed by the learned Additional District and Sessions Judge No. 1, Jaipur Metropolitan, Jaipur (for short `the Trial Court') whereby the objection of the defendant-petitioner with regard to acceptance of agreement to sell dated 19.2.2010 produced by the respondent-plaintiff has been rejected and question with regard to its admissibility has been left open by the Trial Court. 2. Mr. Nawal Singh Sikarwar, learned counsel for the petitioner has submitted that agreement to sell, which is neither registered nor duly stamped, cannot be held admissible in evidence. Learned Trial Court has failed to consider provisions of Section 17 of the Registration Act, 1908 (for short `the Act') according to which registration of the document was compulsory. According to sub-section (1A) of Section 17 of the Act, the documents containing contracts or transfer for consideration any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the registration and other related laws and if such documents are not registered on or after such commencement, then they shall have no effect for the purpose of the Section 53-A (supra). It is argued that as per Section 39 of the Rajasthan Stamp Act, 1998, no instrument chargeable with duty under the Act can be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence and cannot be acted upon registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. 3. In support of his arguments, learned counsel for the petitioner has relied upon decision rendered by the Hon'ble Supreme Court in Om Prakash vs. Laxminarayan & Ors., 2014(3) Civil Court Cases 040 (SC) and Avinash Kumar Chauhan vs. Vijay Krishna Mishra, 2009(1) Civil Court Cases 735 (SC); decisions rendered by this Court in Kanhaiya Lal vs. Addl. District Judge No. 1, Sriganganagar & Anr., 2013(2) Civil Court Cases 712 (Rajasthan); Indu vs. Narsingh Das & Ors. District Judge No. 1, Sriganganagar & Anr., 2013(2) Civil Court Cases 712 (Rajasthan); Indu vs. Narsingh Das & Ors. 2013(2) Civil Court Cases 003 (Rajasthan) = 2013(2) RLW 1239; Smt. Krishna Devi vs. ADJ (F.T.) No. 5, Jaipur Metropolitan & Others, 2012 WLC (Raj.) UC 247; decision rendered by Uttarakhand High Court in Mahant Krishna Giri, Chela Mahant Vikram Giri vs. Smt. Deepa Devi, 2013(4) Civil Court Cases 463 (Uttarakhand). Learned counsel for the petitioner has further argued that Andhra High Court in Golla Dharmanna vs. Sakari Poshetty & Ors., 2014(1) Civil Court Cases 188 (A.P.) has held that decision as to admissibility of such a document in evidence need not be postponed to the final stage of delivery of judgment. The document which is not registered, nor duly stamped cannot be even read in evidence for collateral purposes. 4. The Hon'ble Supreme Court in Omprakash (supra) after analyzing provisions of Section 35 of the Stamp Act held that when part payment has been made and possession delivered, agreement to sell is a conveyance within the meaning of Section 2(10) of the Act and required to duly stamped. If the same is not duly stamped it is not admissible in evidence. 5. The Hon'ble Apex Court in Avinash Kumar Chauhan (supra) also held that agreement to sell is required to be registered if possession is delivered to purchaser. Section 33 of the Stamp Act casts a duty upon every person who has authority to receive evidence and every person incharge of a public office before whom the instrument is produced, if it appears to him that the same is not duly stamped, to impound the same. 6. Single Bench of this Court in Indu (supra) while relying upon the decision of the Hon'ble Supreme Court in Avinash Kumar Chauhan (supra) in the context of unregistered and unstamped document has held that in view of Section 35 of the Stamp Act, document of this nature cannot be admitted in evidence for any purpose whatsoever. 7. Another Single Bench of this Court in Kanhaiya Lal (supra) has held that once the objection regarding admissibility of the document on account of it being insufficiently stamped is raised during the examination of a witness or otherwise, it is imperative for Court to decide whether the document is sufficiently stamped or not and thereafter take proceedings in accordance with its decision. 8. 8. In yet another decision of the Single Bench of this Court in Smt. Krishna Devi (supra), it has been held that inadmissibility of insufficiently stamped document is absolute notwithstanding purpose whether collateral or main unless condition of proviso to Section 35 of the Stamp Act is satisfied, the document is inadmissible. 9. Perusal of the impugned order clearly shows that the learned Trial Court has not held the document, i.e., agreement to sell, admissible in evidence. All that it has held is that question with regard to admissibility of document, i.e., agreement to sell being not admissible in evidence on account of its being unregistered and insufficiently stamped, shall be examined under Issue No. 5 specifically because this is a mixed question of facts and law, reserving objection of the petitioner-defendant to that effect. Learned Trial Court merely directed aforesaid agreement to sell to be exhibited. Ratio of none of the judgments cited by learned counsel for the petitioner is violated by the Trial Court except that of the decision rendered by the Andhra Pradesh High Court in Golla Dharmanna (supra) wherein it has been held that question with regard to admissibility of document in evidence need not be postponed to the final stage of delivery of judgment. The aforesaid judgment of the Andhra Pradesh High Court stands watered down by directed and recent judgment of the Hon'ble Supreme Court in the case of S. Kaladevi vs. V.R. Somasundaram & Others, (2010) 5 SCC 401 = 2010(2) RLW 1796 (SC) wherein it was held that only in suit for specific performance, sale agreement is not required to be registered and it can be made admissible for collateral purpose, but stamp duty may be required to be submitted. The Hon'ble Supreme Court in the aforesaid case has analyzed effect of proviso to Section 49 and Section 17 of the Registration Act, 1908. 10. Admittedly, in the present case, execution of agreement to sell in favour of the respondent-plaintiff by the defendant-petitioner is accompanied by handing over of possession. The Hon'ble Supreme Court in K.B. Saha and Sons (P) Ltd. vs. Development Consultant Ltd., (2008) 8 SCC 564 introduced following principles in Para 34: "1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. The Hon'ble Supreme Court in K.B. Saha and Sons (P) Ltd. vs. Development Consultant Ltd., (2008) 8 SCC 564 introduced following principles in Para 34: "1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." 11. Having noted aforesaid principles of law laid down in K.B. Saha (supra), the Hon'ble Supreme Court in S. Kaladevi (supra) added sixth principle to the line of aforesaid principles that "a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance." 12. In Kalavakurti Venkata Subbaiah vs. Bala Gurappagari Guruvi Reddy, (1999) 7 SCC 114 = RLW 1999(2) SC 295 question before the Hon'ble Supreme Court was whether a decree to enforce the registration of sale deed could be granted. That was a case where the respondent therein filed a suit for specific performance seeking a direction to register the sale deed. Contention of the appellant therein was that decree for specific performance based on unregistered sale deed could not be granted. The Hon'ble Supreme Court in Para 10 and 11 of the judgment (supra) held as under: "10. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document. On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy." "11. ....The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property." 13. Considering both the aforesaid judgments, the Hon'ble Supreme Court in the case of S. Kaladevi (supra) in Para 16 held that in a suit for specific performance if the plaintiff tenders unregistered agreement to sale in evidence before the trial Court, it would be open to the trial court to exhibit/mark the same as exhibit and proceed with the suit. Admission of unregistered agreement to sell or even sale deed in evidence in such case is not hit by Section 3(b) of the Specific Relief Act, 1963. 14. In view of above, the course adopted by the Trial Court in the present case in the impugned order by exhibiting the document and keeping the issue of its admissibility in evidence open cannot be said to suffer from any illegality or infirmity. There is no merit in this writ petition and the same is accordingly dismissed. 15. Stay application also stands dismissed.