Brahaman Swarnkar Samaj and Others vs Medh Kshatriya, Swarnkar Samaj Vikas Samiti and Another

Arun Bhansali, J.—This writ petition is directed against order dated 17.07.2013 passed by the Additional Civil Judge (Junior Division) No. 1, Pali, whereby, the application filed by the petitioner-defendant No. 1 seeking to question the admissibility of the document has been rejected. Brief facts of the case may be noticed thus: the respondent No. 1 - plaintiff filed a suit for cancellation of trust deed, getting it declared void and for permanent injunction against the petitioner-defendants, inter alia, seeking relief for cancellation of trust deed registered on 31.05.1997 by the defendant Samaj and permanent injunction in the nature not to interfere in the right of the plaintiff to worship in the temples, which were subject matter of the trust deed.

The suit was, inter alia, founded on an agreement dated 15.07.1968 said to have been executed qua the temples between the parties. The relevant portions of the plaint read thus:

(Vernacular matter omitted........Ed.)

The suit was resisted by the petitioners and the plaint allegations were denied. The averments relating to the said document dated 15.07.1968 read thus:

(Vernacular matter omitted........Ed.)

Along with affidavit under Order XVIII, Rule 4, CPC of PW-3 Ghevar Chand the said document dated 15.07.1968 was filed and the same was sought to be exhibited in evidence; petitioner No. 1 filed application dated 14.05.2013, inter alia, with the averments that as in the document dated 15.07.1968 there is a version relating to the property being joint, the same is undervalued and requires registration u/s 17 of the Registration Act, 1908 (''the Act of 1908'') and as the document has been undervalued and is unregistered, the same cannot be led in evidence and cannot be marked as exhibit; it was prayed that it be held that the document was inadmissible.

A detailed reply to the application dated 14.05.2013 was filed by the plaintiff and with reference to the antecedent events to the execution of the document dated 15.07.1968, it was submitted that by the said document no new right arose and the document only described the aspect of possession of the temples, rights of both the Samaj and right to incur expenditure on the temples and, therefore, the same was not required to be registered under provisions of the Act of 1908; plea was also raised about the document being only a memorandum and as no sale, gift, mortgage or transfer had taken place, there was no question of any violation and/or violation of provisions of the Act of 1908 or Stamp Act.

After hearing the parties, the trial court came to the conclusion that the document only enumerates the rights of the parties and does not create, transfer, declare, limit or extinguish any right in immovable property and, therefore, registration u/s 17 of the Act of 1908 was not compulsory. The trial court further came to the conclusion that as only rights have been recorded in the said document, no provision has been made for payment of stamp duty under the Stamp Act and, consequently, rejected the objections and permitted the plaintiff to exhibit the document in evidence.

It was contended by learned counsel for the petitioners that the order impugned passed by the trial court is against the provisions of law; a bare look at the document (Annexure-4 with the writ petition) would reveal that the said document clearly ''creates'' right in the property and, therefore, the same was compulsorily registrable under provisions of Section 17(1)(b) of the Act of 1908 and in terms of Article 56(A)(b) of the Rajasthan Stamp Act, 1998 (''the Stamp Act''), the same must bear required stamp duty; and as neither the document is registered nor same bears the stamp duty as prescribed under the provisions of the Act of 1908 and the Stamp Act respectively, the document was inadmissible in evidence and the trial court clearly fell in error in holding otherwise.

Per contra, learned counsel for the respondents supported the order impugned passed by the trial court and with reference to the events antecedent to the execution of the document dated 15.07.1968 and the contents of the document submitted that the document nowhere creates any right, title or interest in any immovable property and, consequently, there is no question of the same requiring registration. Further, it was submitted that the document can merely be termed as an agreement between the parties and the same is adequately stamped. It was prayed that the writ petition filed may be dismissed with costs.

I have considered the rival submissions made at the Bar.

It would be appropriate to reproduce the contents of the document dated 15.07.1968, which is the subject matter of debate between the parties and relevant part of Section 17 of the Act of 1908, both of which read thus:--

(Vernacular matter omitted........Ed.)

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 (XX of 1866) or the Indian Registration Act, 1871 (VIII of 1871) or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely:

(a).....

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, or the value of one hundred rupees and upwards, to or in immovable property;

(c).......

A bare reading of the document dated 15.07.1968 reveals that the parties therein have termed the same as (writing) between and of Pali relating to two temples indicating temples to be in jointness of both and further goes on to state that the said both temples have been in their jointness from beginning and the same would remain so in future also . The document thereafter goes on to enumerate that none of the two Samaj would have exclusive possession on both the temples; both would be entitled to incur expenditure on the temples and would not claim from each other etc.

The contents of said document, which starts with an indication that both the temples are joint and goes on to further indicate that the same have been joint from the beginning and would continue to remain so merely indicate the existing state of affairs, as on the date of executing the document, recalls the status from before execution of the document and as to what was to continue in future. As per the said document, the property i.e. the temples in question were joint from the beginning and would continue to remain so, does not bring into existence any new state of affairs different from what was existing, according to the executants of the document dated 15.07.1968 in relation to the temples i.e. the immovable property. The document thereafter merely goes on to indicate that none of the two Samaj would claim exclusive possession and both would be though entitled to spend money on the said temples, would not claim the same from each other.

The document to be compulsorily registrable u/s 17(1)(b) of the Act of 1908, it is necessary that the same should purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest to or in immovable property. So far as the creation of any right, title or interest as submitted by learned counsel for the petitioners is concerned, in view of the clear language of the document, which indicates preexisting right, it cannot be said that any right was ''created'' by the said document in favour of any of the parties.

In so far as the ''declaration'' as envisaged by Section 17(1)(b) of the Act of 1908 is concerned, as the word ''declare'' has been placed along with create, limit or extinguish and the said words imply a definite change of legal relation to the property by an expression of Will embodied in the document referred to, the said word ''declare'' has to be read ejusdem generis with the words create, assign or limit. For a document to fall within the ambit of S. 17(1)(b) of the Act of 1908 on its declaration, it must imply a declaration of will and not mere a statement of fact as there is a clear distinction between a mere recital of a fact and something which in itself create a title. Reference in this regard may be made to Sakharam v. Madan (1881) ILR 5 Bom 232 and judgment of Privy Council in AIR 1932 55 (Privy Council) .

Consequently, there is no substance in the submissions made by learned counsel for the petitioners that the document in question is compulsorily registrable under provisions of Section 17(1)(b) of the Act of 1908.

So far as the argument raised by learned counsel for the petitioners regarding applicability of Article 56 of the Rajasthan Stamp Act, 1998 is concerned, it would be noticed that the said provision and/or analogous provision to the said Article was not on the statute book when the document dated 15.07.1968 was executed, as at the relevant time, the applicable law was the Indian Stamp Act, 1899 as adapted in the State of Rajasthan. The Article 56, which is sought to be relied on by learned counsel for the petitioners also is apparently inapplicable as the said article relates to ''Trust'' and there is apparently no recital regarding declaration of trust by the said document, which necessarily means declaration by the executants that they hold certain property in trust. No such recital is contained in the document and, therefore, there is apparently no basis for relying on Article 56 for examining sufficiency of stamp duty.

The document in question is apparently an agreement between the parties putting on record mere existing state of affairs and agreeing not to claim exclusive possession; both being free to incur expenditure on the temples and thereafter not to claim the same from each other. The proper stamp duty at the relevant time in the year 1968 on an agreement under Article 5(c) of H-Schedule of the Rajasthan Stamp Law (Adaptation) Act, 1952 was Re. 1 and admittedly the document in question has been executed on a stamp paper of Re. 1.50 P, consequently, it cannot be said that the document in question is insufficiently stamped.

In that view of the matter, it cannot be said that the document dated 15.07.1968 (Annexure-4) is either compulsorily registrable or is insufficiently stamped. As a result, the same is admissible in evidence; and, therefore, the order passed by the trial court does not call for any interference.

Consequently, there is no substance in the writ petition and the same is, therefore, dismissed. The stay application is also dismissed. No costs.