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2019 DIGILAW 1545 (KAR)

H. H. Jyotendra Sinhji Vikramsinhji v. Amit Roy

2019-07-03

KRISHNA S.DIXIT

body2019
JUDGMENT : Krishna S. Dixit, J. Petitioner being the plaintiff in O.S.No.1963/2002 for a possessory decree is invoking the writ jurisdiction of this Court for laying a challenge to the order dated 21.07.2017 made by the learned XXXI Addl. City Civil Judge, Bengaluru, a copy whereof is at Annexure-J whereby the subject documents in Ex-O1 & EX-O2 are held to be 'not admissible in evidence' . The respondent-defendant having entered caveat through his counsel resist the writ petition. 2. Learned counsel for the petitioner argues that Ex.O1 is dated 07.08.2018 and Ex.O2 is dated 03.10.1949; both are registered Sale Deeds to which the Maharaja of Mysore is a party; consequently the question of payment of Stamp Duty would not arise and therefore the Court below is not justified in holding them to be inadmissible in evidence for want of Stamp Duty. 3. Learned counsel for the respondent per contra contends that: (i) both the subject documents being the sale deeds though required to undergo stamping of due value, having not been stamped, cannot be looked into for any purpose whatsoever, in view of the provisions of The Mysore Stamp Act, 1900 (hereafter 1900 Act), (ii) under the Indian Independence Act, 1947 (hereafter 1947 Act) enacted by the British Parliament, the Maharaja of Mysore having executed the Instrument of Accession ceased to be the Maharaja and became a commoner; therefore the second document in Ex.O2 dated 03.10.1949 cannot be taken judicial cognizance of; (iii) when original is not stamped or unduly stamped, a party should not be permitted to lead the secondary evidence of the same inasmuch as that amounts to playing fraud on the Stamp Act which is a fiscal legislation, and (iv) the documents now produced in the writ petition are different from those of the Court below and thus fraud is played by the petitioner side. So contending, he seeks dismissal of the Writ Petition. 4. I have heard the learned counsel for the petitioner and the learned counsel for the respondent at length; I have perused the bulky Petition Papers and adverted to the Rulings cited at the Bar, which I will discuss later. 5. This suit of the year 2002 is for a possessory decree. 4. I have heard the learned counsel for the petitioner and the learned counsel for the respondent at length; I have perused the bulky Petition Papers and adverted to the Rulings cited at the Bar, which I will discuss later. 5. This suit of the year 2002 is for a possessory decree. The sale deed dated 7.8.1918 i.e., Ex-O1 is "for and on behalf of the Palace"; the document dated 03.10.1949 in Ex-O2 is executed by "Huzur Secretary to His Highness the Maharaja "; both these documents although duly registered, apparently, no stamp duty is paid on them, and the endorsement in this regard is "nil"; these documents are held to be inadmissible in evidence by the trial court only on the ground that they are not stamped, and not on any other ground. 6. The Mysore Stamp Act, 1900 being a consolidating legislation relating to Stamps came into force with effect from 01.07.1900; section 3 of the Act enlists the instruments that are chargeable with duty at the rates specified in Schedule I; the Proviso to this section which has the following text exempts the instruments executed by or on behalf of the State Government: "Provided [also] that no duty shall be chargeable in respect of any instrument, executed by, or on behalf of, or in favour of, the State Government in cases where, but for this exemption, the State Government would be liable to pay the duty chargeable in respect of such instrument." [the expression "State Government" came to be introduced by Act No.1 of 1956] 7. The first sale deed i.e., Ex-O1 is dated 7.8.1918 and it employs the expression "B.Ramakrishna Rao Esquire, Palace Controller for and on behalf of the "The Palace" Mysore hereinafter called the purchaser of the other part". The document dated 03.10.1949 employs the expression "Huzur Secretary to His Highness the Maharaja"; during the pre-Constitution era, the Raja/Maharaja was treated not just as the head or representative of the State, but was regarded as the manifestation of the State itself; therefore, these documents are to be treated as the instruments executed by or on behalf of the State Government. They are accordingly so treated and therefore they were exempted from Stamp Duty under the proviso to Sec.3 of the 1900 Act. That being so, the trial court is not justified in branding these documents as "inadmissible in evidence" for want of stamp duty. They are accordingly so treated and therefore they were exempted from Stamp Duty under the proviso to Sec.3 of the 1900 Act. That being so, the trial court is not justified in branding these documents as "inadmissible in evidence" for want of stamp duty. 8. The second document dated 03.10.1949 as already mentioned above is a sale deed; obviously, it was executed and registered after the advent of Freedom to the Country under the 1947 Act enacted by the British Parliament which had given option to the Maharajas of various provinces to merge their territory to the Dominion of India or to the Dominion of Pakistan; the then Maharaja of Mysore executed the Instrument of Accession on 9.8.1947 and the first Governor General of Independent India i.e., C.Rajagopalachari accepted the Instrument on 16.8.1947 followed by Supplementary Instrument dated 1.6.1949; the Mysore State acceded to the Dominion of India on 1.6.1949 vide Division Bench judgment of this Court dated 6.11.1997 in the case of Srikantadatta Narasimharaja Wodeyar, Mysore Vs. State of Karnataka and Others,1998 ILR(Kar) 9060. 9. The Constitution Bench of the Apex Court comprising Eleven Judges, in the case of MADHAV RAO SCINDIA vs. UNION OF INDIA, (1971) 1 SCC 85 , at paragraphs 20 & 21 has observed as under: "20. The Indian States formed a significant but separate part of India before they merged with the rest of India. it is common knowledge that the aim of the Government of India Act, 1935 was to associate the Indian States with British India as equal partners in a loose federation. When India became independent by the Indian Independence Act 1947, British paramountly in respect of the Indian States lapsed. In theory the Rulers became independent but, as shown above, in actual fact, almost all the Rulers signed almost immediately, Instruments of Accession in August 1947 surrendering Defence, External Affairs and Communications. The Rulers immediately after Independence became divided into four classes : (a) those who had signed Instruments of Accession; (b) those who had signed instruments of Merger; (c) those who had formed themselves into Unions and the Unions had signed Instruments of Accession; (d) Hyderabad, Mysore and Jammu and Kashmir. 21. The merged States were either directly administered by the Dominion Government as Chief Commissioner's Provinces or were handed over to the neighboring Provinces. 21. The merged States were either directly administered by the Dominion Government as Chief Commissioner's Provinces or were handed over to the neighboring Provinces. Thus 216 States merged in the adjoining Provinces, 61 States were converted into centrally administered areas and 275 States formed Unions. Only three States retained their integrity; but when the Constitution came into force, they too became part of the Union of India on a later date. They were Hyderabad, Mysore and Jammu and Kashmir." 10. The above observations of the Apex Court in the case of Madhav Rao Scindia (supra) leave no manner of doubt that the Maharaja of Mysore became a commoner on par with an ordinary citizen subject to certain constitutional privileges like the Privy Purse, etc. only with effect from 26.01.1950 when India became the Republic on coming into force of the Constitution of India. The contention of the respondent that at para 108 & 136 of the said decision has some observations in variance with the impression which this Court has gathered from the paragraphs 20 & 21, is also borne in mind. Thus, the second document also was executed when the Royalty of its executant i.e., the Maharaja of Mysore continued and therefore, it partakes the character of an instrument executed by or on behalf of the State Government and consequently fell within the exemption enacted in the Proviso to Sec.3 of 1900 Act. That being so, the same cannot be held to be inadmissible in evidence for wanting in Stamp Duty. 11. The contention of the learned counsel for the respondent that to decide whether a document requires stamp duty and whether any document is unduly stamped or not, the production of the original is a pre-condition and that, in no circumstance, the issue can be decided when a certified copy of the document is produced, appears to be too farfetched an argument. If the said contention is accepted, that virtually amounts to striking the death knell of Sections 63 & 64 r/w Sec.74(2) of the Indian Evidence Act, 1872, that provide for the production of secondary evidence in certain circumstances. If the original is produced, the task becomes easy, is beside the point. 12. The reliance on the decision of the Apex Court in the case of HARIOM AGRAWAL VS. PRAKASH CHAND MALVIYA, (2007) 8 SCC 514 may not be of much assistance to the respondent. If the original is produced, the task becomes easy, is beside the point. 12. The reliance on the decision of the Apex Court in the case of HARIOM AGRAWAL VS. PRAKASH CHAND MALVIYA, (2007) 8 SCC 514 may not be of much assistance to the respondent. Para 10 of the said decision holds that there is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act; law is now no doubt well settled that a copy of the instrument cannot be validated by impounding it and such a copy cannot be admitted as a secondary evidence under the Stamp Act. A decision being an authority for what it actually lays down cannot be pressed into service for a proposition that seem to emerge logically therefrom vide Lord Halsbury in QUINN vs. LEATHEM, (1901) AC 495. The fact matrix of the Apex Court decision is different from that of this case, inasmuch as the certified copies of the subject documents are not impounded and much less, they are sought to be regularized by paying the stamp duty and the penalty, the original instrument itself having been exempted from stamp duty, as already discussed above. 13. The contention that the subject properties having been situate in the cantonment area of Bangalore city which is governed by the provisions of Cantonment Laws, the provisions of 1900 Act are not applicable, is irrelevant for consideration. It does not take anyone's case any further. The reliance by the counsel for the respondent on the decision of the Allahabad High Court in the case of SECRETARY OF STATE vs. MULLA, (1922) AIR Allahabad 57, is thoroughly misplaced. Similarly his contention that the first document of 1918 to the effect that the executant was unwilling to affix his signature thereto, cannot be a sufficient ground for holding the transaction comprised therein as null & void. 14. The contention of the respondent that the petitioner has played fraud on the court below and on this court in fabricating the subject documents is unworthy of consideration. 14. The contention of the respondent that the petitioner has played fraud on the court below and on this court in fabricating the subject documents is unworthy of consideration. The documents pressed into service prima facie appear to be copies of the originals in the sense they are generated from the public records kept in the Government, of private documents as enlisted in Section 74 of the Indian Evidence Act, 1872; the original document having been duly registered, may be difficult to be chased after, when a century has lapsed for the first document of 1918 and more than half a century is gone by, qua the second document of 1949. No case is made out for invocation of Lord Edward Coke's dicta "FRAUD VITIATES EVERYTHING". In the above circumstances, this Writ Petition is favoured; the impugned order is set at naught; the trial court shall admit the subject documents in evidence. Since suit is of the year 2002, the court below shall try and dispose off the same within an outer limit of one year and report compliance to the Registrar General of this Court. It is needless to mention that, now that the subject documents having been held admissible in evidence, it is open to the respondent to lead further evidence either by examining/further examining or further cross examining any witnesses or by producing any document, as may be required for the due adjudication of the lis.