An unstamped or insufficiently stamped instrument can be admitted into evidence upon payment of the deficient stamp duty and penalty, and an unregistered document affecting immovable property can be used as evidence of a collateral transaction not requiring registration.

T. R. Handa, J. — This revision petition filed at the instance of the plaintiffs under section 115 of the Code of Civil Procedure calls in question the order dated 9-1-1980 recorded by the Sub-Judge 1st Class, Kangra, and arises in the following circumstances.

2. The petitioners who are the plaintiffs had filed their suit giving rise to this revision petition, for possession of some agricultural land. The petitioners produced a document which purports to be a deed of relinquishment of tenancy rights and wanted to prove the same as a part of their evidence. This document was neither stamped nor registered. Since the document could not be admitted into evidence for want of stamp duty, the petitioners made a prayer to the trial Court that they be allowed to deposit the stamp duty chargeable on this document along with the prescribed penalty so that the document could be considered as duly stamped for the purposes of the Indian Stamp Act. The learned trial Court, however, vide its impugned order declined this request of the petitioners. As a bare reading of the language of the impugned order would suggest, the learned trial Court declined the request of the petitioners on the solitary ground that the document being a deed of relinquishment of tenancy rights required compulsory registration under section 17 of the Registration Act and since it was not registered, no order need be passed either calling upon the petitioners to deposit the stamp duty chargeable on it along with penalty or for sending the document to the Collector for realising the requisite stamp duty and penalty.

3. I entertain no doubt that the approach of the learned trial Court in the matter is wholly erroneous and has resulted in its failure to exercise its lawful jurisdiction.

4. It is an admitted position that the petitioners had produced the document mark X before the trial Court for being admitted into evidence and that when so produced this document was unstamped though it was chargeable with duty under the Indian Stamp Act. In a situation of this type the trial Court was under a legal obligation in terms of section 33 of the Indian Stamp Act to impound the document, that is, to take it into legal custody. After the document was so impounded there were two courses open to the trial Court. The first course was to admit the document into evidence upon payment of the duty chargeable thereon and the penalty as provided by section 35 of the Indian Stamp Act and to send to the Collector an authenticated copy of this document together with the certificate in writing stating the amount of duty and penalty levied in respect thereof and also to send such amount to Collector as provided by sub-section (1) of section 38 of the Indian Stamp Act. In the alternative in case the petitioners failed to pay the duty and the penalty as provided under section 35 of the Stamp Act, the trial Court was required to send the original document to the Collector. There was no third course open to the learned trial Court.

5. Looking from another angle, the document mark X which admittedly was chargeable to duty under the Stamp Act and was unstamped was inadmissible in evidence on account of the bar placed by section 35 of that Act. Proviso to section 35, however, clearly lays down that any such instrument, not being an instrument chargeable with duty not exceeding ten paise, or a bill of exchange or a promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, ten times the amount of the proper duty whichever is more. It is, thus, obvious that the bar against admittance in evidence of an unstamped or insufficiently stamped instrument of the nature like the document mark ‘X as placed by section 35 of the Stamp Act is not absolute and the same would stand removed as