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1985 Supreme(HP) 47
Himachal Pradesh High Court
T. R. HANDA, J.
Narender Kumar and others - Appellant
Versus
Hans Raj and another - Respondents
Civil Revn. No. 95 of 1982
Decided On : 12 July 1985
H.K. Bhardwaj, for Petitioner; Devinder Gupta, for Respondents.
An unstamped or insufficiently stamped document can be admitted into evidence upon payment of the duty chargeable thereon and the penalty as provided under Section 35 of the Indian Stamp Act.
Headnote:
STAMP ACT - SECTION 33, 35, 36, 38 - REGISTRATION ACT - SECTION 49 - ADMISSIBILITY OF UNSTAMPED OR INSUFFICIENTLY STAMPED DOCUMENT - PAYMENT OF DUTY AND PENALTY - COLLATERAL TRANSACTION - EVIDENCE.
Fact of the Case:
The petitioners sought to introduce an unstamped document, which they claimed was an agreement between the parties recognizing the joint nature of the suit property, in a suit involving the issue of whether the property was joint or partitioned. The trial court disallowed the document on the ground that it was an instrument of partition of immovable property and was not stamped or registered.
Finding of the Court:
The court held that the trial court erred in disallowing the document. It held that the document was not an instrument of partition but an agreement between the parties, and that even if it was considered a partition deed, it could still be admissible in evidence for the purposes of proving a collateral transaction not requiring registration or for any other purpose referred to in Section 49 of the Registration Act.
Issues: Whether an unstamped or insufficiently stamped document can be admitted into evidence.
Ratio Decidendi: The court held that an unstamped or insufficiently stamped document can be admitted into evidence upon payment of the duty chargeable thereon and the penalty as provided under Section 35 of the Indian Stamp Act. The court also held that even if a document requires compulsory registration, it may still be received in evidence to prove any collateral transaction not required to be effected by a registered instrument or as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purposes of Section 53 A of the Transfer of Property Act.
Final Decision: The court allowed the revision petition, quashed the order of the trial court, and directed that the petitioners-defendants be allowed to pay stamp duty chargeable on the document in question and also to pay the prescribed penalty. After such duty and penalty are paid the trial Court shall comply with the provisions of Section 38(1) of the Indian Stamp Act. The petitioners will then be allowed to prove this document and tender it as evidence of any relevant collateral transaction not required to be affected by a registered instrument.
ORDER:- This Civil Revision Petition is at the instance of the defendants and is directed against the order dated 5-9-1981 recordered by the Sub-Judge, Kullu, in the course of trial of Civil Suit No. 63 of 1977 of his file, vide which the learned Sub-Judge disallowed the petitioners-defendants to produce and prove and prove a document at the trial.
2. It appears that one of the issues involved in the suit pending before the Sub- Judge between the parties was whether the property forming subject matter of the suit was the joint property of the parties or had been partitioned between them earlier. The plea of the contesting defendants was that it was still joint and not partitioned whereas the contention of the plaintiffs-respondents was that the same had already been partitioned and fallen to their share. In order to substantiate their plea the petitioners-defendants wanted to produce and prove a document earlier executed between the parties which, according to them recognized the joint nature of the suit property.
3. The learned Sub-Judge on a consideration of the contents of that document came to the conclusion that it was an instrument of partition of immovable property and inasmuch as it was neither stamped nor registered, it could not be admitted into evidence. He, therefore, vide his impugned order disallowed the petitioners-defendants to introduce that document into evidence.
4. The petitioners-defendants now seek to challenge the said order of the Sub-Judge.
5. I have perused the document sought to be introduced into evidence by the petitioners-defendants in the presence of the counsel for the parties. This document was executed between three brothers, the predecessors-in-interest of the present parties at the intervention of their sister. The document comprised of three parts. In the first part all the three brothers agreed to distribute the family debts between them and the particulars of the debts falling to the share of each brother were given. In the second part it is mentioned that the family owned some agriculture land which had been recorded in the revenue record as their joint property in equal shares. Vide the document in question the three brothers agreed that they would share the produce of that land in equal shares and that the entries in the revenue record were correct. The third and last portion of this document mentions of a residential house of the family. It is stated that the house was double storeyed and one portion thereof was at that time in occupation of one of the brother while the other was in occupation of their mother. Vide this document the three brothers agreed that the house be kept joint for the time being and that it would be partitioned later on with mutual consent of the three brothers and till then it will continue to be used for the purpose for which it was being used.
6. It is thus obvious that no immovable property was partitioned by this document. It was only an agreement between the parties though unstamped.
7. The approach of the learned Sub-Judge in the matter in my view was wholly erroneous and has resulted in his failure to exercise his lawful jurisdiction. So as to call for interference by this Court. It is an admitted position that the document sought to be produced by the petitioners before the trial Court was an unstamped one. In a situation of this type when a document chargeable with duty is found unstamped or insufficiently stamped and is produced before a Court, the Court is under a legal obligation in terms of Section 33 of the Indian Stamp Act to impound such a document. In other words, the Court is duty bound to take such document into legal custody. After the document is so impounded there are two courses open to the Court. The first course is to admit the document into evidence of course subject to all just exceptions, upon payment of the duty chargeable thereon and the penalty as provided under Section 35 of the Indian Stamp Act if so tendered by the party pr
