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2016 DIGILAW 303 (RAJ)

Sanjeev Bharadwaj v. Yogeshwar Swaroop Bhatnagar

2016-02-22

KANWALJIT SINGH AHLUWALIA

body2016
ORDER : Kanwaljit Singh Ahluwalia, J. Yogeshwar Swaroop Bhatnagar, plaintiff-respondent/landlord had filed a suit before Rent Tribunal Baran, District Baran seeking eviction of petitioner-defendant/tenant. During the pendency of the suit, the petitioner-tenant submitted his affidavit along with eight documents. The said documents were taken on record. On 27.8.2015, the plaintiff-respondent filed an application before the Rent Tribunal stating therein that the petitioner-tenant had only provided copies of five documents whereas, copies of three documents viz. Exhibit-A/4, Exhibit-A/7 and Exhibit-A/8 were not provided to the plaintiff-respondent. 2. The trial court had already exhibited the agreement to sell as Exhibit-3. In the application (Annexure-1) dated 27.8.2015, another objection was raised that agreement to sell has been assigned Exhibit-3 wrongly and same could not be done as the document was neither stamped nor registered. The trial court accepted the application filed by the plaintiff-respondent/landlord and relied upon various judgment to hold that since the document was not stamped and registered, same could not be assigned exhibit. 3. Aggrieved against the same, the present writ petition under Article 227 of the Constitution of India has been filed. 4. I have heard the learned counsel for the parties. 5. A document produced by either of the party can either be unregistered document or registered but unstamped document or it can be both unregistered and unstamped document. Thus, three questions arise for the consideration of the court: (a) What is the effect of unregistered document; (b) What is the effect of document which is unstamped; (c) If unstamped document is assigned exhibit by the court, whether in view of Section 36 of the Stamp Act subsequently by passing separate order exhibit assigned can be removed, or order passed to this effect can be reviewed or recalled? 6. The learned counsel for the petitioner has relied upon S. Kaladevi v. V.R. Somasundaram and ors., (2010) 5 SCC 401 , wherein the court held that the trial court was not justified in refusing to admit unregistered document. 7. A perusal of the judgment rendered in the case of S. Kaladevi (supra), reveal that it was only regarding document which was not registered. So far unregistered document is concerned, same can be read for collateral purpose. It will be apposite here to reproduce following portion of the judgment rendered in the case of S. Kaladevi (supra) as under:- “10. Section 17 of 1908 Act is a disabling section. So far unregistered document is concerned, same can be read for collateral purpose. It will be apposite here to reproduce following portion of the judgment rendered in the case of S. Kaladevi (supra) as under:- “10. Section 17 of 1908 Act is a disabling section. The documents defined in Clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs.100/- and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non-registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: Section 49.- Effect of non-registration of documents required to be registered.-No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument. 11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. 12. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 , this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189: The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.... This Court then culled out the following principles: 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. 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. To the aforesaid principles, one more principle may be added, namely, 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.” 8. The learned counsel for the petitioner further relied upon the judgment rendered by the Single Judge of Kerala High Court in the case Lakshmanan, T.C. v. Vanaja and ors., AIR 2011 Ker 177, to contend that once the document which is not stamped, has been admitted in evidence and exhibited, the court cannot question its admissibility and remove the exhibit. 9. To counter the argument raised, the learned counsel for the respondent has relied upon a judgment rendered by Single Judge of this Court in the case of Smt. Indu v. Narsingh Das and ors., 2013 (5) WLC (Raj.) 615, wherein relying upon the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009 (2) SCC 532 , it was held that a document which is totally unstamped and is not registered, is not admissible in evidence even for collateral purposes. It will be apposite here to reproduce the following portion of the judgment rendered in the case of Smt. Indu (supra) as under:- “12. In this case, it is abundantly clear that document Annex.-3 dated 11.05.1969 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 extend thereof would not be a relevant factor for not invoking Section 35 of the Registration Act. Thus, the purpose for which a document is sought to be admitted in evidence or the extend 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.” 10. Another Single Bench of this Court in the case of Prembai v. Khurshid Bano and Ors., 2014(3) WLC (Raj.) 221, noted procedure laid in Section 33 and Section 35 of the Indian stamp act (hereafter called 'the Act'), but without noticing Section 36 of the Act held document to be inadmissible. 11. Another Single Judge of this Court in the case of Hajari v. Ratan Lal, 2009 (1) DNJ 396, considered the case law and expressed a contrary opinion by holding that if a document which has not been executed on stamps, even when it is required to be executed by stamps, or it is executed on insufficient stamps then that can be admitted in evidence by payment of proper stamp duty and penalty thereon. Thereafter, in the case of Hajari (supra), the learned Single Judge took refuge under Section 49 of the Registration Act to hold that the document can be admitted in evidence for collateral purpose. 12. Another Single Judge of this Court in the case of Bheru Nath v. Rajendra, 2009 (1) DNJ 316, relied on the case of Javer Chand and Ors. v. Pukhraj Surana, AIR 1961 SC 1655 and held that once a document has been marked as an exhibit in a case and trial had proceeded, all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, then Section 36 of the Stamp Act comes into operation. 13. Having heard the learned counsel for the parties, this Court is of the view that in case of Avinash Kumar Chauhan (supra) a Two Judge Bench of Supreme Court had not noted the judgment rendered by a Larger Bench (Constitution Bench) in the case of Javer Chand and Ors. (supra). 14. 13. Having heard the learned counsel for the parties, this Court is of the view that in case of Avinash Kumar Chauhan (supra) a Two Judge Bench of Supreme Court had not noted the judgment rendered by a Larger Bench (Constitution Bench) in the case of Javer Chand and Ors. (supra). 14. The judgments rendered by two separate Single Bench of this Court, in the case of Smt. Indu (supra) and Prembai (supra) rely upon the judgment of the Supreme Court in the case of Avinash Kumar Chauhan (supra). However, a Five Judge Bench (Constitution Bench) of Supreme Court in the case of Javer Chand and others (supra) has held as under:- “7. That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. (Emphasis Supplied) Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.” 15. Thus, the three questions posed above in my humble opinion are to be answered as under: (a) A document unregistered can be taken into consideration for collateral purpose. (b) However, a document which is unstamped cannot be made admissible in evidence in view of the words “for any purpose whatsoever” in Section 35 of the Stamp Act, 1989. (c) Furthermore, if rightly or wrongly a document has been assigned exhibit, then in view of Section 36 of the Stamp Act, and ratio of law laid in Javer Chand and Others (supra) assignment of exhibit neither can be reviewed nor revised by the same court or by the court of superior jurisdiction. 16. The controversy can be examined from another angle. A Full Bench of Madhya Pradesh High Court, in the case of Balkrishna Bihari Lal v. Board of Revenue M.P. And Others, AIR 1970 MP 74 , observed as under:- “11.The scheme of the Act is abundantly clear. (i) Once an instrument chargeable with duty is tendered in a civil court, it shall impound it, if, after examining it, the Court is of the opinion that it is not duly stamped: Section 33 of the Act. (i) Once an instrument chargeable with duty is tendered in a civil court, it shall impound it, if, after examining it, the Court is of the opinion that it is not duly stamped: Section 33 of the Act. The Court has, however, power under Section 35 of the Act to admit it (barring certain instrument) in evidence on payment of duty with which the instrument is chargeable, or the amount required to make up the deficiency together with a penalty, limits of which are prescribed in the section. There is no third course open to the Court, once it finds that an instrument tendered in evidence is not duly stamped.(Emphasis Supplied). The next step, which the Court has then to take, is provided in Section 38. If the Court has admitted in evidence an instrument upon payment of penalty and/or duty, it shall sent to the Collector an authentic copy of such instrument together with a certificate stating the amount of duty and penalty levied in respect of that instrument, and shall send such amount to the Collector. This is provided in sub-section (1) of Section 38. (ii) Then sub-section (2) of Section 38 enacts thus:- “In every other case, the person so impounding an instrument shall sent it in original to the Collector.” This sub-section, therefore, clearly refers to a case where an instrument has been impounded under Section 33 of the Act but has not been admitted in evidence on payment of penalty and/or duty. The Collector has then to follow the procedure as specified in Sections 39 and 40 of the Act, according as the instrument is sent to him by the Civil Court under sub-section (1) or sub-section (2) respectively of Section 38. (iii) But when the Civil Court is of the opinion that an instrument is duly stamped, it does not impound it under Section 33 of the Act but admits it in evidence. (vi) In a case where an instrument is tendered and the Civil Court, just admits it in evidence, without its being questioned on the ground that it is not duly stamped, such validity cannot, by virtue of Section 36 of the Act, be subsequently questioned at any stage of the same suit or proceeding on the ground that it is not duly stamped. The only course then open is the one provided in Section 61 of the Act. The only course then open is the one provided in Section 61 of the Act. Under that section, it is the Court to which appeals lie from, or references are made by, the Court which admitted the instrument in evidence, which may, on its own motion or on the application of the Collector, take into consideration the order the subordinate Court admitting the instrument in evidence. And, if such (appeal or reference) Court is of the opinion that such instrument should not have been admitted in evidence without payment of duty and penalty under Section 35, or that higher duty and penalty should have been paid, such Court may order the instrument to be produced and may impound it when produced. Such Court shall then send the instrument, along with its declaration, to the Collector. 12. On the above analysis, it is abundantly clear that an instrument can be sent to the Collector under Section 38(2) of the Stamp Act only when it is impounded under Section 33, but is not admitted in evidence on payment of penalty and/or duty with the aid of Section 35. Section 38(2) has not application to a case where the document has been admitted in evidence.” 17. Without taking note of Full Bench of Madhya Pradesh High Court, a Single Judge of this High Court in the case of Lrs of Deepchand v. Mahaveer Chand and anr., 2015 (2) WLN 106, at his own held that in case document is totally unstamped and require payment of stamp duty, the same cannot be exhibited in terms of Section 35 of the Stamp Duty Act. It further held that where a document is unstamped and insufficiently stamped, the duty of the trial court is to act under the provisions of Section 35 and Section 33 of the Act, it can either itself determine the amount of stamp duty and penalty payable and/or impound the document and send the same to the Collector for determination of proper stamp duty and penalty. In either case, on payment of stamp duty and penalty, the document shall be made admissible in evidence. 18. In either case, on payment of stamp duty and penalty, the document shall be made admissible in evidence. 18. Thus, Full Bench of Madhya Pradesh High Court in the case of Balkrishna Bihari Lal (supra) and Single Bench of this Court in the case of Lrs of Deepchand (supra) have held that once an unstamped or insufficiently stamped document is produced, the court by invoking Section 35 and Section 33 of the Act, can either determine the stamp duty and penalty and make the document admissible or impound the same and send the same to the Collector for assessing the amount of stamp duty and penalty and on determination thereof, the document becomes admissible. 19. Therefore, taking into consideration the ratio laid in the case of Balkrishna Bihari Lal (supra) and Lrs of Deepachand (supra) only two situation arise:- (1) The document is either impounded and sent to the Collector or the court determine the stamp duty and penalty to make the document admissible. (2) However, if a document has been rightly or wrongly assigned exhibit, as per ratio of law laid in Javer Chand and others (supra), the same is to be treated as admissible and the exhibit assigned cannot be recalled. 20. In view of conflict of law between different judgments rendered by Single Bench of this Court in case of Hajari (supra), Lrs of Deepchand (supra), Smt. Indu (supra) and Prembai (supra), the matter is required to be considered by the Larger Bench of this Court to answer the following questions: “(i) Whether the judgments rendered by two different Single Bench of this Court in the case of Smt. Indu v. Narsingh Das and ors., 2013(5) WLC (Raj.) 615 and Prembai v. Khurshid Bano and ors., 2014(3) WLC (Raj.) 221 relying upon the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009 (2) SCC 532 , lay a correct law without taking note of judgment rendered by a Constitution Bench of Supreme Court in Javer Chand and ors. v. Pukhraj Surana, AIR 1961 SC 1655 . v. Pukhraj Surana, AIR 1961 SC 1655 . (ii) Whether judgment rendered by another Single Bench of this Court in the case of Lrs of Deepchand v. Mahaveer Chand and anr., 2015 (2) WLN 106, and the view expressed by Full Bench of Madhya Pradesh High Court in the case of Balkrishna Bihari Lal v. Board of Revenue M.P. and others, AIR 1970 MP 74 , has to prevail? (iii) Whether on production of unstamped document, Court is duty bound to determine the stamp fee along with penalty, as per Section 35(1) of the Act or to impound the same under Section 33 of the Act and send the same to the Collector for determination of stamp duty and penalty in order to make the document admissible? 21. In view of conflict of judgments, the Registry is directed to lay the matter before a Larger Bench to answer the questions posed by me, after seeking orders from Hon'ble The Acting Chief Justice regarding constitution and listing of the present matter before the appropriate Bench.