Smt. Rajni Sahu vs Niranjan Sahu

Late Paremeshwar Dayal Shukla,,,,,,,

R.B. Shukla (son),"Shri Ram Sanehi

Shukla (son)

(dead)","R.K. Shukla (son)

(dead)","Ramesh Chand

Shukla (son)

(dead)","R.V.Shukla (son)

(dead)","Smt. Ganga

Tiwari","Smt. Kamla

Tiwari","Late Smt. Mangla

Mishra

or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and",,,,,,,

marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular",,,,,,,

cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The,,,,,,,

crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect",,,,,,,

and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows,,,,,,,

the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt",,,,,,,

objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision",,,,,,,

on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going",,,,,,,

against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and",,,,,,,

thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both",,,,,,,

the parties.,,,,,,,

The issue, therefore, falls for consideration that whether the document dated 20.06.1996 i.e. the deed of relinquishment is admissible in evidence or",,,,,,,

not for want of proper stamp duty and registration.,,,,,,,

The impugned order would show that at the initial stage when the document dated 20.06.1996 was tendered for evidence, the same was objected",,,,,,,

on the ground that it is not properly stamped and registered. In this case, reading of the document would redirect to examine the relative provisions of",,,,,,,

the Indian Registration Act, 1908 and the Indian Stamp Act, 1899.",,,,,,,

Section 17 of the Registration Act, 1908 is reproduced hereunder :-",,,,,,,

(I) Documents of which registration is compulsory .,,,,,,,

(l) 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 Registration Act, 1866, or the Registration Act, 1871, or the Registration Act, 1877, or this",,,,,,,

Act came or comes into force, namely:â€"",,,,,,,

(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;,,,,,,,

(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:",,,,,,,

(f) any decree or order or award or a copy thereof passed by a Civil Court on consent of the defendants or on circumstantial evidence but not on the,,,,,,,

basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed",,,,,,,

produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, 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; and",,,,,,,

(g) agreement of sale of immovable property of the value of one hundred rupee and upwardsâ€, 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.,,,,,,,

(II) Section 49 of the Registration Act,1908",,,,,,,

Effect of non-registration of documents required to be registered.â€" No document required by section 17 or by any provision of the Transfer of,,,,,,,

Property Act, 1882 ( 4 of 1882), to be registered shallâ€"",,,,,,,

(a) affect any immovable property comprised therein, or",,,,,,,

(b) confer any power to adopt; or 10,,,,,,,

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:",,,,,,,

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to",,,,,,,

be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 (3 of",,,,,,,

1877) or as evidence of any collateral transaction not required to be effected by registered instrument.,,,,,,,

Thus, Section 17 (1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in",,,,,,,

respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and,,,,,,,

deals with the documents which are required to be registered u/s 17 of the Act. The said proposition is laid down in Yellapu Uma Maheshwari and,,,,,,,

others Vs. Buddha Jagadheeswara Rao and others (2015) 16 SCC 787.,,,,,,,

Likewise Section 35 of the Stamp Act provides that instruments not duly stamped is inadmissible in evidence and cannot be acted upon. The same,,,,,,,

is reproduced hereunder:-,,,,,,,

Section 35 of the Stamp Act,,,,,,,

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 by 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 :",,,,,,,

Provided that--,,,,,,,

(a) any such instrument 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.""",,,,,,,

The Supreme Court in Yellapu Uma Maheswari Vs. Buddha Jagadheeswara Rao (2015) 16 SCC 787 (supra) has held that it is well settled that,,,,,,,

the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to,,,,,,,

the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document. In the case in,,,,,,,

hand, an application u/s 35 of the Indian Stamp Act 1899 was filed raising objection that Swikri/Sahmati Patra is not properly stamped and registered.",,,,,,,

A perusal of the said document shows that two persons namely Smt. Ganga Bai Tiwari and Kamla Bai Tiwari and sons and daughters of late Mangla,,,,,,,

Bai Mishra have relinquished their right in respect of the immovable property i.e., House No.10/445 situated at Budhapara in favour of the plaintiffs..",,,,,,,

The contents of the document would show that sharers have withdrawn themselves from the property and abandoned their rights thereby they have,,,,,,,

relinquished their rights from the property in favour of the plaintiffs. The plaintiffs have placed reliance on the same to claim right over the property,,,,,,,

i.e., suit property in question.",,,,,,,

The Supreme Court held in Sneh Gupta Vs. Devi Sarup which was reported in 2010 (1) M.P.L.J. ( Para 27) that title to a property must be,,,,,,,

determined in terms of the statutory provision and if the right has been derived under the provisions of the Hindu Succession Act, 1956 the same",,,,,,,

cannot be taken away or the party cannot be deprived by a reason of an agreement entered into between the parties and if a party further relinquishes,,,,,,,

his right in respect of his or her property, the same has to be stamped and must be registered in terms of provisions of Indian Registration Act.",,,,,,,

Admittedly in this case the document sought to be exhibited is not registered and the objection has been raised that the proper stamp duty has not,,,,,,,

been paid. The Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat 2001 AIR SCW 841 (Three Judges Bench) laid down that whenever an,,,,,,,

objection is raised during the evidence regarding the admissibility of the document, the Court can make note of such objection and mark the objected",,,,,,,

document tentatively as an exhibit in the case but at the same time it was laid down that if the objection relates to the deficiency of stamp duty of a,,,,,,,

document, the Court has to decide the objection before proceeding further. Therefore, in the instant case, admittedly the objection about the",,,,,,,

admissibility of document has been raised with respect to the payment of stamp duty under Section 35 of the Indian Stamp Act. Hence, the preposition",,,,,,,

of AIR 2001 SCW 841 â€" Bipin Shantilal Panchal (Supra) is read together with the law laid down in Yellapu Uma Maheswari Vs.,,,,,,,

Buddha Jagadheeswararao (2015) 16 SCC 787 (Supra) to the effect that the document would be inadmissible in evidence for want of proper stamp,,,,,,,

duty and registration. The Court has held that in such circumstances the instrument is not admissible in evidence even for collateral purpose until the,,,,,,,

same is impounded. The Court has further held that the document which has the effect of creating and taking away the rights in respect of an,,,,,,,

immovable property must be registered otherwise section 49 of the Registration Act imposes a bar on the admissibility of an unregistered document in,,,,,,,

respect of an immovable property. Therefore, in the instant case, the objection having been raised u/s 35 of the Stamp Act with respect to the",,,,,,,

admissibility of the document about the payment of stamp duty, not deciding the said objection by the trial Court is against the settled principles as laid",,,,,,,

down by the Supreme Court. Consequently the order dated 30.11.2017 cannot be allowed to sustain and accordingly, the same is set aside.",,,,,,,

In the result, the application filed by the petitioner u/s 35 of the Indian Stamp Act is allowed. The trial Court is directed to decide the admissibility",,,,,,,

of the document sought to be exhibited by the plaintiff in terms of the observation made in this order. If the trial Court finds that the document is,,,,,,,

insufficiently stamped and is tendered in evidence then the Court is duty bound to impound the same and in order to decide the levy of stamp, the",,,,,,,

document is required to be sent to the Collector as per sections 33, 35, 38 & 40 of the Indian Stamp Act, 1899.",,,,,,,

Consequently, the writ petition is allowed in view of the observations made in the foregoing paragraphs.",,,,,,,