Admissibility of unregistered documents affecting immovable property and the requirement for sufficient stamp duty under the Rajasthan Stamp Act, 1998.

JUDGMENT

Vinit Kumar Mathur, J. - The case comes up on an application preferred by the respondent for early hearing of the writ petition. The same is not opposed by the counsel for the petitioner.

2. For the reasons mentioned in the application, the same is allowed. Since the controversy involved in the present case lies in a narrow compass, therefore, with the consent of the learned counsel for the parties, the writ petition itself is heard and decided at this stage.

3. The present petition has been filed against the order dated 03.09.2016, whereby an application preferred on behalf of the petitioner under Section 34 of the Rajasthan Stamp Act, 1998 and Section 17 of Registration Act, 1908 was rejected.

4. Learned counsel for the petitioner submits that as far as the fact of admissibility of non registered documents is concerned, the learned trial court rightly held that the same is admissible in evidence as per Section 49 of the Registration Act, 1908. Learned counsel submits that if the document is not stamped, then as per Section 39 of the Rajasthan Stamp Act, 1998 unless the requisite stamp duty is paid after impounding the document, is not admissible and therefore, the learned trial court committed an error while rejecting the application of the petitioner vide order dated 03.09.2016. In support of his contention, learned counsel for the petitioner relied upon the judgment of this Court in S.B. Civil Writ Petition No. 9544/2014 Ramnarayan v. Ashok Kumar & Ors. decided on 26.04.2016.

5. Per contra, learned counsel for the respondent submits that the fact of the parties having entered into an agreement is not disputed, therefore, the learned trial court rightly rejected the application preferred by the petitioner. He therefore, submits that no interference is warranted in the order dated 03.09.2016 passed by the learned trial court.

6. I have considered the submission made at the bar.

7. The fact that the respondent No. 1 has entered into an agreement to sale with the petitioner and for the specific performance of the same, the suit was preferred by the respondent No. 1. The fact that the application preferred by the petitioner under Section 34 of the Rajasthan Stamp Act and Section 17 of the Registration Act was rejected by the trial court on the ground that since the petitioner raised serious doubt on the veracity of the document of sale itself on one hand and has questioned the admissibility of the document being not stamped, therefore, the issue about the veracity of the document will be decided after adducing the evidence on record. If the fact of the document of sale in question is established, then the document can be sent for impounding and putting the requisite stamp duty. Thus, the application preferred is premature. This court finds that as far as the non registration of the application is concerned, the same is governed by Section 49 of Registration Act, 1908 which reads as under:-

"Section 49. Effect of non-registration of documents required to be registered.-- No document required by section 17 1[or by any provision of the Transfer of Property Act, 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 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, 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, or as evidence of any collateral transaction not required to be effected by registered instrument."

8. As per Section 49 of the Act, an unregistered document affecting immovable property is admissible in evidence even if the same is not registered. However, this Court finds that in the suit for specific performance, if the document is not sufficiently stamped, then recourse to Section 3