Manoharan vs Velu and another

R. Balasubramanian, J.

The first plaintiff in OS No. 158 of 1987, on the file of the District Munsif, Aranthangi is the revision petitioner. The respondents are the

defendants in that suit. The application filed by the first plaintiff in IA No. 598 of 1992 to continue the suit as Power Agent of the legal

representative of the deceased second plaintiff was dismissed on merits. The correctness of that order, dated 3.12.1992 is questioned in this Civil

Revision Petition.

I heard Mr. C.S. Gopalakrishnan, learned counsel appearing for the revision petitioner and Mr.G. Muthukrishnan, learned counsel appearing for

the respondents. According to Mr. C.S. Gopalakrishnan, the reasons assigned by the learned trial Judge in the order under challenge are wholly

erroneous in law and are not supported by Indian Stamp Act (hereinafter referred to as ''the Act'') and therefore, it has to be necessarily set aside.

According to the learned counsel for the revision petitioner, though the power document was executed in Ceylon, yet it was executed on Indian

non-judicial stamp paper to the value of Rs. 5. The power document in this case is a special power and therefore, it has got to be engrossed only

on Indian non-judicial Stamp paper of the value of Rs. 5. When the requirement of the Act had been strictly complied with, neither Section 31 nor

Section 32 of the Act will be attracted. Therefore, to rely upon Section 32 of the Act and reject the Interlocutory application would be illegal.

On the other hand, Mr.G. Muthukrishnan, learned counsel appearing for the contesting respondents would argue that when once it is established

that the power document is executed outside India, then it has to be necessarily produced before the District Collector having jurisdiction for

getting necessary endorsement regarding the proper stamp duty payable on that instrument and the power of the Collector to make an

endorsement on such instrument is expressly taken away under the proviso to sub-section (3) of Section 32 of the Act, if it is brought to him, after

the expiration of three months, after it has been first received in India. According to Mr.G. Muthukrishnan, learned counsel for the respondents,

whenever an instrument, like the one, is executed outside India, it is mandatory for the person, relying upon such instrument to produce it before

the Collector for an endorsement.

In the light of the arguments made by the learned counsel on either side, I perused the order under challenge as well as the power document

produced in the paper book before this Court. Originally, there were two plaintiffs. The plaint was signed and presented by the first plaintiff for self

and as Power of Attorney Agent of the second plaintiff. The second plaintiff was a resident of Sri Lanka, even when the plaint was originally

presented. He died pending suit. His son Arunagirinathan had given a fresh power on 27.2.1990 in favour of the first plaintiff to continue the suit,

representing him in that suit. This document was executed by Arunagirinathan, son of the deceased second plaintiff at Sri Lanka. Three

Applications, viz., IA No. 857 of 1990 u/s 5 of the Limitation Act to condone the delay in filing the application to bring the legal representatives of

the second plaintiff on record; IA No. 858 of 1990 to set aside the abatement and IA No. 859 of 1990 to bring on record the legal

representatives of the second plaintiff were filed by the first plaintiff. At this stage, IA No. 598 of 1992 came to be filed for permission to conduct

the suit as the Power Agent of the above referred to Arunagirinathan, the legal representative of the deceased second plaintiff.

This Power document satisfies the definition ''Power of Attorney'' as defined in sub-section (21) of Section 2 of the Act. It is not in dispute that

this power document is engrossed on Indian non-judicial stamp paper of the value of Rs. 5, which is the proper stamp duty, payable on that

instrument. On these facts, the question that arises for consideration is whether the said power document should be necessarily produced before

the Collector to certify by endorsement on such instrument that the full duty with which it is chargeable has been paid or not. To decide this

question, the Court has to necessarily look into Sections 31 and 32 of the Act. Section 32 of the Act starts with the following words: When an

instrument brought to the Collector u/s 31, is ... etc., etc.,. Therefore, if the provisions of Section 32 of the Act have to be applied, then the

instrument should have been necessarily produced under the provisions of Section 31 of the Act before the Collector concerned. Section 31 of the

Act enables a person bringing to the Collector any instrument, whether executed or not and whether previously stamped or not, to have his opinion

as to the duty (if any) with which it is chargeable and thereupon the Collector on payment of a fee, shall determine the duty (if any), with which, in

his judgment, the instrument is chargeable. Sub Section (2) of Section 31 of the Act deals with the power of the Collector to collect materials. In

order to determine the stamp duty, if any, chargeable on the instrument produced before him. Therefore, it is clear that only in a case where the

opinion of the Collector is sought for regarding the payment of the proper stamp duty, the Collector gets the power to proceed in accordance with

Section 31 of the Act. Once the Collector gets the jurisdiction u/s 31 of the Act in the manner I have stated above, then only Section 32 of the Act

gets attracted.

Since in this case, the instrument has been charged with the proper stamp duty payable under the Act and since it has not been produced by the

Power of Attorney Agent of the deceased second plaintiff before the Collector, the Collector does not get any jurisdiction at all to go into that

question. The argument of the learned counsel for the respondents that the requirements of producing such an instrument before the Collector is

mandatory, (where the instrument had been executed outside India) cannot be sustained. The proviso to the main Section of the Act cannot alter

the scope of the very Section itself. To attract clause (b) of the proviso to sub-section (3) of Section 32 of the Act necessarily the document

whether it is executed in India or outside India should have been produced before the Collector u/s 31(1) of the Act. So long as the document was

not produced before the Collector, u/s 31(1) of the Act seeking his opinion on proper stamp duty chargeable, there is no question of relying upon

or referring to the proviso to sub-section (3) of Section 32 of the Act.

Learned counsel for the revision petitioner brought to my notice an unreported judgment delivered by a learned single Judge of this Court, dated

5.1.1994 in CRP.No. 2438 of 1993. A similar request, as in this case, was made to the lower court in that case as well. In that case also, the

Power of Attorney on Indian stamp paper was signed at Ceylon and it was produced before the lower court with a petition to prosecute the suit as

a Power Agent. The lower Court, relying upon clause (b) of the proviso to sub-section (3) of Section 32 of the Act dismissed the said petition.

The validity of the said order was questioned in that Civil Revision Petition. On the question whether the instrument should have been validated or

not, the learned single Judge held as follows:

..... In this case, since the document itself was already written in Indian stamp papers, it cannot be said that the failure to produce before the

Collector within three months can be a ground for holding that it was not acted upon and on the basis of the same it cannot be rejected. However,

since the petitioner is willing to pay the necessary stamp and the penalty, the Court below is directed to receive the stamp as well as the penalty

and then admit this document and recognise it as a power of attorney, if it is other wise in order and thereafter to proceed with the other

proceedings. It is also made clear that in view of the order passed in this petition, the other petitioners were also rejected. The petitioner may be

permitted to renew those applications, after the petitioner was recognised as a power of attorney and suitable orders may also be passed, This

Revision Petition is ordered accordingly.

Instruments not duly stamped are dealt with u/s 33 of the Act and it enables the Authorities before whom such improperly stamped instrument is

produced to impound it. The admissibility of the instruments not duly stamped is dealt with u/s 35 of the Act. Under clause (a) to the proviso to

that Section, improperly stamped instruments, excepting the categories mentioned in that clause (a), shall be admitted in evidence on payment of

duty with which the same is chargeable on penalty. The document of the type on hand viz., the power document is not the one expected under

clause (a) of the proviso to Section 35 of the Act. In view of these two provisions referred to above, if the argument based on clause (b) to the

proviso to sub-section (3) of Section 32 of the Act, as projected by learned counsel for the respondents is analysed, I have no hesitation to hold

that the arguments advanced by the learned counsel for the respondents have got to be rejected, as otherwise no meaning could be attached to

Section 35 of the Act. This reason given by me now, rejecting the arguments of the learned counsel for the respondents is in addition to the reasons

already given by me based on construction of Sections 31 and 32 of the Act. The unreported Judgment of this Court in CRP No. 2438 of 1993

referred to earlier is also in favour of the revision petitioner. Since in this case, the instrument produced before the Court has suffered stamp duty

chargeable on it, there is no question of either impounding it u/s 33 of the Act or collecting any amount, as provided for under clause (a) of the

proviso to Section 35 of the Act. Therefore, I have no hesitation to hold that the order under challenge is illegal and it has to be set aside and

accordingly, it is set aside.

This civil revision petition is allowed. No costs. The connected civil miscellaneous petition is dismissed. In view of my decision in this civil

revision petition, all the three Interlocutory applications viz., IA Nos. 857 of 1990 have to be taken on file and disposed of in accordance with law.