Back
2010 Supreme(Kar) 821
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
K. Dinesh S/o. Sri Kumaraswamy & Others
Versus
Kumaraswamy S/o. Late Sivaramaiah & Others
Writ Petition Nos. 1428 of 2009 (GM-CPC) C/W Writ Petition No. 19021 of 2009, 10441 of 2008, 18297 of 2009 & 36252-253 of 2009
Decided on : 30-08-2010
For the Petitioner:Y.K. Narayana Sharma, M.G. Ramakrishnaiah, Advocates, Ujwala R. Advocate for Kumar and Kumar.
For the Respondent:T.N. Raghupathy, Advocate, Shri R. Omkumar, Additional Government Advocate, R. Nataraj, Advocate for Caveator, R. Shivachandra Naik, Advocate for Shri. D. Ramesh, Advocate for Respondent No.1 and Shri R. Omkumar, Additional Government Advocate.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 13, Rule 8 & Karnataka Stamp Act, 1957, Sections 34 & 37: [Anand Byrareddy, J] Impounding of documents - Document not duly stamped presented with plaint - Held, It is to be noticed tha the C.P.C., and the Karnataka Civil Rules of Practice, do provide for the stage of suit at which documents shall be produced and the manner of production of the same. As also the procedure to be followed in admitting the same in evidence. While Order 13, Rule 8 specifically provides for impounding a document or documents produced before it, for sufficient reason, on such terms as the Court may direct. It cannot be said that it is only such documents as are produced and sought to be admitted in evidence that can be impounded, if not duly stamped or for such other reason. In other words, the Court can impound a document, in the very first instance that it is produced before the Court. In terms of Section 33 of the Karnataka Stamp Act, the moment it comes to the attention of the Court, that a document produced in a suit is not duly stamped with duty chargeable, the Court shall impound the same.
In so far as a Judge of a High Court is concerned, the duty of examining and impounding any instrument under the Section may be delegated to an officer to be appointed in this behalf. Such impounded document or documents may be marked and admitted in evidence on payment of the requisite duty and penalty that would be attracted, if the party seeking to produce and rely upon the same chooses to do so. This is in terms of Section 37(1) of Karnataka Stamp Act. In every other case, the Court shall send the document to the Deputy Commissioner, as provide under Section 37(2). The said authority would then deal with the same in so far as recovery of duty and penalty and prosecution for violation of the provisions of the Act, as provided thereunder.
INDIAN REGISTRATION ACT, 1882 - Section 49 & Karnataka Stamp Act,1957, Section 34: [Anand Byrareddy, J] Document not duly stamped - Held, The difference between Section 34 of Karnataka Stamp Act and Section 49 of Registration Act should be noted. The bar under Section 34 is absolute and an instrument which is not duly stamped cannot be admitted in evidence for any purpose. On the other hand, Section 49 of the Registration Act which deals with the effect of non-registration of documents provides that if a document which is required to be registered under law is not registered, then such document shall not affect any immovable property comprised therein, nor can it confer any power to adopt nor can it be received as evidence of any transaction affecting such property or conferring such power. But the Proviso to Section 49 provides that an unregistered instrument 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 effected by a registered instrument.
For example, if a sale deed is executed on a white paper and is not stamped, it can neither be admitted in evidence nor be used for any purpose. But if a sale deed is executed on requisite stamp paper but is not registered and the executants refuses to admit registration, then the purchaser has a right to file a suit for specific performance, and rely on the sale deed, even though it was not registered, as evidence of the contract for sale. Thus, though both, Section 34 of the Karnataka Stamp Act and Section 49 of Registration Act, bar the document being received as evidence, the bar is absolute under the Stamp Act - unless deficit duty and penalty are paid, and the bar is not absolute under the Registration Act.
KARNATAKA STAMP ACT, 1957 - Section 34 & Registration Act, Section 49: [Anand Byrareddy, J] Document not duly stamped - Held, The difference between Section 34 of Karnataka Stamp Act and Section 49 of Registration Act should be noted. The bar under Section 34 is absolute and an instrument which is not duly stamped cannot be admitted in evidence for any purpose. On the other hand, Section 49 of the Registration Act which deals with the effect of non-registration of documents provides that if a document which is required to be registered under law is not registered, then such document shall not affect any immovable property comprised therein, nor can it confer any power to adopt nor can it be received as evidence of any transaction affecting such property or conferring such power. But the Proviso to Section 49 provides that an unregistered instrument 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 effected by a registered instrument.
For example, if a sale deed is executed on a white paper and is not stamped, it can neither be admitted in evidence nor be used for any purpose. But if a sale deed is executed on requisite stamp paper but is not registered and the executants refuses to admit registration, then the purchaser has a right to file a suit for specific performance, and rely on the sale deed, even though it was not registered, as evidence of the contract for sale. Thus, though both, Section 34 of the Karnataka Stamp Act and Section 49 of Registration Act, bar the document being received as evidence, the bar is absolute under the Stamp Act - unless deficit duty and penalty are paid, and the bar is not absolute under the Registration Act.
KARNATAKA STAMP ACT, 1957 - Section 34 & Article 5(e): [Anand Byrareddy, J] Document not duly stamped admitted in evidence without any objection - Held, Section 35 of the Karnataka Stamp Act does not prohibit a challenge against an instrument that it shall not be acted upon because it is not duly stamped, but on that account, there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. This is plain from terms of Section 41(2) of the Act, which lays down that every instrument endorsed by the Deputy Commissioner under Section 41 (1) shall be admissible in evidence and may be acted upon as if it has been duly stamped.
A Court is prohibited from admitting an instrument in evidence and a Court and a public officer are prohibited from acting upon it. Thus, a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission and that a document can be admitted in evidence but not be acted upon. If every document, upon admission, became automatically liable to be acted upon, the provision in Section 34 that an instrument chargeable with duty but only duly stamped, shall not be acted upon by the Court, would be rendered redundant. To act upon an instrument is to give effect to it or to enforce it. Order 134, Rule 8 of the C.P.C., fortifies this position. It is thus clear that any document, produced in Court, may for sufficient reason, be impounded and dealt with as provided under Order 13, Rule 8 C.P.C.
These petitions are heard together as common questions of law arise for consideration.
2. The brief facts in each case are stated hereunder:
WP 1428/2009: The petitioner is the plaintiff in a pending civil suit in OS 464/2000, on the file of the Court of the Civil Judge, (Senior Division), Mysore. The suite is for partition and separate possession of a house, which is the suit property. It is claimed to be a Hindu joint-family property of the parties. The defendants, respondents 4 and 5 herein, claimed that the suit property has been agreed to be sold under an agreement of sale dated 21-11-1999, executed in their favour by respondent no. 1 herein. It was also claimed that an advance amount had been received towards the total sale consideration of Rs.8.50 lakh and that the said respondents 4 and 5 had been put in possession of the suit property, under the agreement of sale. Incidentally, respondents 4 and 5 are said to have instituted a separate suit for specific performance of the above said agreement, in suit bearing No. OS 531/2000, before the same court. The said suits are being tried together.
The plaintiff in OS 531/2000, was examined as PW.1 and the agreement of sale, above referred was marked as Ex.P-1. The petitioner himself has been examined as a witness and has been confronted with the document in respect of the signatures of respondent no.1 therein.
The petitioner had filed an application invoking, Sections 33 and 34 of the Karnataka Stamp Act, 1957, (Hereinafter referred to as the ‘KS Act’, for brevity), to contend that the said agreement of sale attracted stamp duty prescribed under Article 5(1) (e) of the Schedule to the KS Act. As the document was not sufficiently stamped, the petitioner requested the trial court to impound the document and to collect duty and penalty from respondents 4 and 5. The application was heard at length and rejected by the trial court, on the ground that no objection had been raised at the time the document was produced and marked in evidence and therefore it was not possible to enquire into the question of adequacy of stamp duty paid on the said document, for purposes of addressing its admissibility in evidence. That order is sought to be questioned in the above petition.
WP 19021/2009: The petitioners are the defendants in a pending civil suit. The suit is for specific performance of an agreement of sale, brought by the respondent herein, in OS 999/2006 in the Court of the City Civil Judge, Bangalore. The petitioners had contended that the agreement was a fabricated document. On the other hand, they contended that the suit property was the subject matter of a joint development agreement entered into by the petitioners with a property developer who had been put in possession of the property, two years prior to the agreement of sale. At the trial, during the course of the cross-examination of the plaintiff, respondent herein, was said to have been confronted with the said joint development agreement, the Counsel for the plaintiff had raised an objection as to the admissibility of the document on the ground the same was not duly stamped. The same was marked as an exhibit, subject to the said objection. Thereafter, on an application by the respondent requesting the Court to impound the document and to collect duty and penalty on the same, from the petitioners, and the application having been allowed, the present petition is filed challenging the same.
WP 10441/08 – The Petitioner is the second defendant, in a pending civil suit, in OS 235/2002, before the Court of the Civil Judge (Senior Division), Holenarsipur. The suit is for specific performance of an agreement of sale, of the suit property. At the trial the said agreement of sale was produced and marked as an exhibit by the plaintiff. At the relevant point of time, there was no objection to the document being marked. However, an application having been filed at a later point of time, calling upon the trial court to impoun
