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2019 Supreme(MP) 407
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Nathulal & another v. Ramesh & others
Miscellaneous Petition No. 6237 of 2018 (Indore);
Decided on 28.8.2019
A. S. Garg with Aditya Garg for petitioners;
Amit Dube for respondent No. 1.
Headnote:
(1) Stamp Act, 1899 -- Ss. 2 (14), 33 and 35 -- Evidence Act, 1872 -- S. 62 Expl. 1 -- family partition -- plaintiff tendered carbon copy in evidence -- trial Court rejected objections of defendants and admitted deed in evidence -- defendants challenged order in writ petition but confined argument only to issue of stamp duty payable on partition deed - Court held that stamp duty is liable to be paid -- plaintiff filed application u/ss. 33 and 35 of Stamp Act -- defendants objected that partition deed produced by plaintiff is a photocopy and only original document can be validated -- application of plaintiff allowed by impugned order -- held -- carbon copy is always prepared along with original therefore, as per Explanation 1 of S. 62 of Evidence Act, both are primary evidence -- can be validated u/s. 35 of Stamp Act. AIR 1989 SC 702 followed. 1982 JLJ 738, AIR 1983 All. 90, AIR 2007 Guj. 88 and Misc. Petition No.1158 of 2017 decided on 6.7.2018 relied on. AIR 1971 SC 1070, 2007 (3) JLJ 336 (SC) AIR 1956 SC 593, 2004(1) MPHT 488 and 2016(2) MPLJ 450 referred to. [Paras 9 & 11]
(2) Procedure -- proving document -- mere production and marking of document as exhibit by Court cannot be held to be due proof -- its execution has to be proved by admissible evidence. (2003)8 SCC 745 followed. [Para 14]
¼1½ LVkai vf/kfu;e] 1899 & /kkjk 2¼14½] 33 rFkk 35 & lk{; vf/kfu;e] 1872 & /kkjk 62 Li"Vhdj.k 1 & dkSVqafcd foHkktu & oknh us lk{; esa dkcZu Áfr is'k dh & fopkj.k U;k;ky; us Áfroknhx.k dh vkifÙk;ka ukeatwj dj foys[k dks lk{; esa xzg.k fd;k & Áfroknhx.k us vkns'k dks fjV ;kfpdk esa vk{ksfir fd;k ijarq cgl dsoy foHkktu foys[k ij lans; LVkai&'kqYd ds fook|d rd lhfer j[kh & U;k;ky; us vfHkfu/kkZfjr fd;k fd LVkai&'kqYd lans; gS & oknh us LVkai vf/kfu;e dh /kkjk 33 rFkk 35 ds v/khu vkosnu ÁLrqr fd;k & Áfroknhx.k us vkifRr dh fd oknh }kjk ÁLrqr fd;k x;k foHkktu foys[k QksVks Áfr gS rFkk dsoy ewy nLrkost fof/kekU; fd;k tk ldrk gS & vkf{kIr vkns'k }kjk oknh dk vkosnu eatwj fd;k x;k & vfHkfu/kkZfjr & dkcZu Áfr lnSo ewy ds lkFk rS;kj dh tkrh gS blfy,] lk{; vf/kfu;e dh èkkjk 62 ds Li"Vhdj.k 1 ds vuqlkj] nksuksa ÁkFkfed lk{; gSa & LVkai vf/kfu;e dh /kkjk 35 ds v/khu fofèkekU; dh tk ldrh gSA , vkb vkj 1989 ,l lh 702 vuqlfjrA 1982 ts ,y ts 738] , vkb vkj 1983 bykŒ 90] , vkb vkj 2007 xqtŒ 88 rFkk Ádh.kZ ;kfpdk Øekad 1158 lu~ 2017 fu.khZr fnukad 6-7-2018 voyafcrA , vkb vkj 1971 ,l lh 1070] 2007 ¼3½ ts ,y ts 336 ¼mPpre U;k;ky;½ , vkb vkj 1956 ,l lh 593] 2004 ¼1½ ,e ih ,p Vh 488 rFkk 2016 ¼2½ ,e ih ,y ts 450 fufnZ"VA ¼iSjk 9 ,oa 11½
¼2½ ÁfØ;k & nLrkost lkfcr djuk & dsoy ÁLrqfr rFkk U;k;ky; }kjk nLrkost ij Án'kZ vafdr fd;k tkuk lE;d~ lcwr gksuk vfHkfu/kkZfjr ugha fd;k tk ldrk & mldk fu"iknu xzkg~; lk{; }kjk lkfcr fd;k tkuk gksrk gSA ¼2003½ 8 ,l lh lh 745 vuqlfjrA ¼iSjk 14½
ORDER
1. Petitioners have filed the present petition being aggrieved by the order dated 10.12.2018 passed by IInd Civil Judge, Class-II, Sardarpur, district Dhar in COS No.76-A/17 whereby the trial Court has allowed the application filed by the plaintiff under sections 33 & 35 of the Indian Stamp Act and sent the document to the Collector (Stamps) for payment of stamp duty.
Facts of the case are as under :
2. Respondent No. 1/plaintiff preferred a civil suit against the petitioners and respondents No. 2 to 5 in respect of an agricultural land bearing survey No. 1934 area 0.941 hectare situated at village Ledgaon, Tehsil Sardarpur, district Dhar (for short ‘the suit property’) seeking a decree of declaration to the effect that he is the sole owner of the suit property by virtue of family settlement and partition which took place on 29.5.1993. The plaintiff also prayed for a decree of perpetual injunction. The defendants filed written statement denying the averment made in the plaint. Thereafter, trial Court framed issues on 23.8.2016. The plaintiff submitted the affidavit of his witnesses under Order 18 rule 4 of the CPC.
3. On 21.9.2016, during the course of examination of plaintiff Rameshchandra (PW1), a carbon copy of a partition deed dated 21.5.1993 was tendered in evidence by him. At that stage, the present petitioner raised an objection regarding admissibility of the said document for want of registration and proper stamp. Thereafter, petitioner moved an application under section 151 CPC challenging the admissibility of the said partition deed. The application was opposed by the plaintiff. After considering the contention of the parties and the nature of the document, learned trial Court vide order dated 8.11.2016 rejected all the objections and held that the deed is admissible in evidence.
4. Present petitioners filed a writ petition No. 7622/2016 before this Court and by order dated 30.7.2018 the writ petition was allowed and set aside the order dated 8.11.2016 and held that the deed is an instrument of partition and not a memorandum of partition, hence stamp duty was required to be paid keeping in view the Indian Stamp Act, Schedule 1-A Item No.(52).
5. After the aforesaid order, on 11.10.2018 the plaintiff filed an application under sections 33 and 35 of the Stamp Act for sending the partition deed for stamping. Even the aforesaid application has been opposed by the present petitioners by filing reply that the partition deed produced by the plaintiff is neither an original document nor a carbon copy, therefore, it is not an instrument under section 2(14) of the Indian Stamp Act, hence the photocopy of the instrument cannot be impounded and sent to the Collector for validation of the said document. By impugned order dated 10.12.2018, learned trial Court has allowed the application and sent the document to the Collector for payment of stamp duty. Being aggrieved by the aforesaid order, petitioners/defendants No. 3 & 4 have filed the present petition before this Court.
6. Shri A.S.Garg, learned Senior Advocate appearing for the petitioners submits that sections 33 and 35 of the Indian Stamp Act are applicable to the original instrument and not to the photocopy of the instrument. Section 2(14) of the Indian Stamp Act also deals with the instrument. By submitting the photocopy the document cannot be validated. In support of his contention he has placed reliance over the judgment passed by the apex Court in the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao & others AIR 1971 SC 1070; judgments of this Court in the case of Sugreeva Prasad Dubey and others v. Sitaram Dubey 2004 (1) MPHT 488 and Abhiyank Builders Ltd. and another v. Daulat Singh and others [2016(2) MPLJ 450]. He further submits that the so called partition deed dated 29.5.1993 filed by the plaintiff is not a partition deed because it is not signed by all the parties, hence the same cannot be validated even by paying deficit stamp duty.
