Narbada Prasad Agrawal vs Tarun Bhawasar

Sanjay Yadav, J.

The order passed in this writ petition shall govern the disposal of Writ Petitions No. 5047/2008, 5048/2008 and 3714/2008. As the issue involved in these writ petitions are similar and for the sake of record the facts of W.P. No. 5051/2008 are taken into consideration.

The challenge put forth by the petitioner in this petition under Article 227 of the Constitution of India is to order dated 7-5-2007, 31-1-2008 and 24-3-2008 respectively. By order dated 7-5-2007 an application u/s 35 Stamp Act, 1899 filed by the respondent/plaintiff was allowed. Whereas the application u/s 33 of the Act of 1899 has been rejected. And by order dated 24-3-2008 the right of petitioner/defendant to lead evidence has been closed.

The facts noted from the petition briefly are that the respondent/plaintiff instituted a civil suit for eviction of the petitioner/defendant on the ground that the petitioner, a tenant, has defaulted in payment in rent. The petitioner challenging the ownership opposed the relief on the ground that he is in possession of suit property not as a tenant but by virtue of an agreement of sale executed in favour of the petitioner by the erstwhile owners. The petitioner sought to prove the agreement dated 24-12-1993. An objection was raised by the respondent by filing an application u/s 35 of the Act of 1899. Whereof an application u/s 33 of the Act of 1899 was filed by the petitioner seeking rectification of the defect.

The trial Court vide order dated 7-5-2007 declined to permit the petitioner to prove unregistered instrument in the following terms;

Similarly, the trial Court while dealing with the application u/s 33 records the following finding vide its order dated 31-1-2008.

Assailing the orders, it is urged, that the trial Court committed an error in rejecting the plea of the petitioner/defendant to admit the document for collateral purpose. It is further contended that the petitioner is even willing and ready to pay the duty. The respondent/plaintiff on its turn has supported the impugned orders.

Heard the learned counsel for the parties at length

Section 17 of the Registration Act, 1908 stipulates :

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, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely :-

(a) instruments of gift of immovable property;

(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, of the value of one hundred rupees and upwards to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the (State Government) may, by order published in the (Official Gazette), exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

Section 33 of the Stamp Act, 1899 stipulates :

Examination and impounding of instruments. - (1) Every person having bye law or consent of parties, authority to receive evidence, and every person in-charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion/with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before- him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (India) when such instrument was executed or first executed:

Provided that -

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);

(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.

(3) For the purpose of this section, in case of doubt, -

(a). 1 [the 2(State Government)] may determine what offices shall be deemed to be public offices; and

(b) 1 [the 2(State Government)] may determine who shall be deemed to be persons in-charge of public offices. Section 35(a)(a) of Stamp Act, 1899 stipulates : 35. Instruments not duly stamped inadmissible in evidence, etc- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having bye law or consent of parties authority to receive evidence; or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : (Emphasis supplied) Provided that - (a) any such instrument 4(shall), 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, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

Thus unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose, which will include a collateral purpose.

In the case at hand, petitioner intended first to get the instrument admitted u/s 33 for the examination for collateral purpose. The concerned instrument is an unregistered agreement of sale which, as per stipulations contained u/s 17 of the. Registration Act, requires a compulsory registration and unless the document is compulsory registered the same cannot be taken on evidence in any manner. Therefore in the considered opinion of this Court, the trial Court did not commit any error by rejecting the claim put forth by the petitioner. Furthermore, the trial Court duty exercised the jurisdiction by passing order dated 24-3-2008 whereby, the application put forth by the petitioner u/s 17(3) was rejected. .

Thus no case is made out on merit and the petition is dismissed. However, no costs.