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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar, J.
Rajappa – Appellant
Vs.
Rajappa – Respondents
Writ Petition No. 22528/2012 (GM-CPC)
Decided On: 20.03.2014
INDIAN REGISTRATION ACT, 1908 - Section 49, Proviso (b): [N. Kumar, J] Unregistered document - Held, It can be looked into for ascertaining the nature of possession or if it is impeached as a forgery by alleged executant for comparing the handwriting of alleged executant with his admitted handwriting. It could be admitted as an evidence of acknowledgment to save limitation. An unregistered partition deed produced before Court cannot be looked into to find out whether there is any partition as stipulated in the deed. However, such a deed can still be looked into to find out as to who is in possession of the property and that would be a collateral purpose.
KARNATAKA STAMP ACT, 1957 - Sections 34 & 35: [N. Kumar, J] Marking of insufficiently stamped document - Suit for possession - Defendant contending that he is in possession in pursuance of an agreement of sale as exhibit despite objection of the plaintiff on the ground that it could be marked for collateral purpose - Held, Marking of a document for the purpose of collateral purposes necessarily means that it is a document which is compulsorily registerable, but not registered. This has nothing to do with the stamp duty or penalty payable under the provisions of the Stamp Act. Unless a document is duly stamped or sufficient duty and penalty as provided under law is paid thereon, it can never be admitted in evidence. Of course, if the objection is not taken at the time of marking and the Court were to mark the same as an exhibit, then no objection to that effect can be taken subsequently. The Courts have to bear this distinction in mind. In the instant case, the document which was sought to be produced in evidence and marked is an agreement of sale which is not a compulsorily registerable document under Section 17 of the Registration Act. Therefore, the question of marking such a document for collateral purpose would not arise. The Trial Judge, by admitting an insufficiently stamped document in evidence for collateral purpose has acted contrary to Sections 33 and 34 of the Karnataka Stamp Act. Therefore the impugned order cannot be sustained and accordingly set aside. However, liberty was given to Defendant to pay duty and penalty and then get the document marked.
KARNATAKA STAMP ACT, 1957 - Sections 34 & 35: [N. Kumar, J] Insufficiently stamped document - Suit for possession - Defendant contending that he is in possession in pursuance of an agreement of sale - Agreement was marked as exhibit despite objection of the plaintiff on the ground that it could be marked for collateral purpose - Held, Marking of a document for the purpose of collateral purposes necessarily means that it is a document which is compulsorily registerable, but not registered. This has nothing to do with the stamp duty or penalty payable under the provisions of the Stamp Act. Unless a document is duly stamped or sufficient duty and penalty as provided under law is paid thereon, it can never be admitted in evidence. Of course, if the objection is not taken at the time of marking and the Court were to mark the same as an exhibit, then no objection to that effect can be taken subsequently. The Courts have to bear this distinction in mind. In the instant case, the document which was sought to be produced in evidence and marked is an agreement of sale. An agreement of sale is not a compulsorily registerable document under Section 17 of the Registration Act. Therefore, the question of marking such a document for collateral purpose would not arise. The Trial Judge, by admitting an insufficiently stamped document in evidence for collateral purpose has acted contrary to Sections 33 and 34 of the Karnataka Stamp Act. Therefore the impugned order cannot be sustained. Impugned order of marking of document was set aside. Liberty given to Defendant to pay duty and penalty and then got the document marked
N. Kumar, J.
1. The plaintiff has preferred this writ petition challenging the order of the Trial Court admitting an insufficiently stamped document holding that it can be looked into for collateral purpose i.e., for the purpose of contract. The plaintiff has filed a suit against the defendant for recovery of possession claiming that he is the absolute owner of the property in dispute.
2. The defendant filed the written statement contending that the property belonged to one Chikka Venkatesha Bovi who sold the northern half portion to one Somanna and he has purchased the same from Somanna under a registered sale deed 14.06.2006. In the southern half portion there is a stone roofed house measuring 12 x 24 ft. and Somanna was residing in the said house. Subsequently, the said Somanna agreeing to sell the said house in his favour, put him in possession thereof. After Somanna's death, his son Manjunatha and the wife of Chikka Venkatesha Bovi, have also agreed to sell the said property in his favour and he is in actual possession and enjoyment of the same under an agreement of sale.
3. To substantiate his case, the defendant during the course of evidence, has produced an agreement of sale. Marking of the same as an exhibit in evidence was objected to by the plaintiff on the ground that stamp duty ought to have been paid on it as if it were a conveyance in view of Article 5(i)(e) of the Karnataka Stamp Act as the defendant claims that the possession is delivered in his favour under the said agreement of sale.
4. The trial court has negatived the plaintiffs contention holding that an insufficiently stamped document can be looked into for collateral purpose i.e., for the purpose of contract and proceeded to mark the same as Ex. D. 10. Aggrieved by the said order, the present writ petition is filed.
5. I heard the learned counsel for the parties.
6. There appears to be some confusion in the minds of the trial Court as to the documents that could be marked for collateral purpose.
7. Section 33 of the Karnataka Stamp Act, 1957, mandates that when an unstamped or insufficiently instrument is tendered in evidence before a Civil Court and if the marking of the same is objected to by the opposite party, the court is duty bound to examine such instrument and decide whether it is duly stamped or not. If the Court comes to the conclusion that the instrument is not duly stamped, then it has to impound such instrument. Section 34 mandates that a document which is not duly stamped shall not be admitted in evidence. In other words, it shall not be marked as exhibit in the case. However, the proviso to Section 34 makes it clear, if the party tendering the instrument in evidence pays the stamp duty or deficit stamp duty and also ten times the duty payable as penalty or deficient portion thereof, as the case may be, then the instrument becomes admissible in evidence. Section 35 of the Stamp Act makes it clear that if no objection is taken by the opposite party at the time of marking the document which is insufficiently stamped and it is admitted in evidence, such admission shall not be called in question at any stage of the same suit or other proceeding on the ground that the instrument has not been duly stamped. The opposite party thus, loses a right to challenge the judicial act of admitting such document in evidence.
8. Section 17 of the Registration Act, 1908 deals with documents, the registration of which is compulsory and it reads as under:
17. Documents of which registration is compulsory-
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or o
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