Sunil Kumar and Others vs Babu Bhai and Others

Hon''ble Mr. N.K. Mody, J.—Being aggrieved by the order dated 11-2-2010 passed by 4th Addl. District Judge, Mandsaur in Civil Suit No. 8-A/2009, whereby application filed by the respondent No. 1 for taking photocopy of the family arrangement dated 30-1-94 on record as secondary evidence was allowed, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for declaration, specific performance and permanent injunction, in which the reliance was placed on a family arrangement, which took place on 30-1-94. The suit was contested by the petitioners on various grounds. On the basis of the pleadings of the parties learned Trial Court framed the issues and fixed the case for evidence, wherein it was prayed that respondent No. 1 be permitted to produce photocopy of the family arrangement dated 30-1-94 in secondary evidence as the original is in possession of petitioners. The application was contested by the petitioners. After hearing the parties, learned Court below allowed the application and permitted the respondent No. 1 to adduce the family arrangement dated 30-1-94 in secondary evidence against which present petition has been filed.

Learned Counsel for petitioner argued at length and submits that impugned order passed by learned Court below is illegal, incorrect and deserves to be set aside. Learned Counsel submits that the document, which is not properly stamped cannot be allowed to be adduced in secondary evidence. It is submitted that the photocopy of the family arrangement, which has alleged to have taken place between the parties on 30-1-94 and the original is not properly stamped, therefore, respondent No. 1 could not have been permitted by the learned Court below to adduce the same in secondary evidence. Reliance is placed on a decision of Hon''ble Apex Court in the matter of Hariom Agrawal Vs. Prakash Chand Malviya, wherein the Hon''ble Apex Court has held that it is now well settled that copy of the instrument cannot be validated by impounding and it cannot be admitted as secondary evidence under the Stamp Act, 1899. From the decisions of the Supreme Court and a plain reading of Sections 33, 35 and 2 (14) of the Stamp Act, 1899. it is clear that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument, it can be taken in evidence u/s 35 of the Stamp Act. Section 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2 (14) of the Stamp Act. The instrument as per definition u/s 2 (14) has a reference to the original instrument. There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act.

Further reliance is placed on a decision in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Muslim, reported in 2009(3) M.R.H.T. 6 (SC) = 2009 (i) Supreme 58, wherein the Hon''ble Apex Court has observed that even though there is no prohibition u/s 49 of Registration Act to receive an unregistered document in evidence for collateral purpose. But document so tendered should be duly stamped or should comply with requirements of Section 35 of Stamps Act, if not stamped as a document cannot be received in evidence even for collateral purpose unless it is duly stamped. Contention of appellant that document was admissible for collateral purpose was held not correct.

On the aforesaid strength of law it is submitted that impugned order passed by learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that petition be allowed and impugned order be quashed.

Shri M.K. Jain, learned Counsel for respondent No. 1, submits that execution of the family arrangement dated 30-1-94 is admitted by the petitioners in their written statement and the plea, which has been taken by the petitioners is that the said family arrangement was inoperative. Learned Counsel further submits that the petitioners are claiming rights over the suit property on the basis of the sale deed, which was executed by the father of the respondent No. 1 on the basis of the family arrangement dated 30-1-94. Learned Counsel further submits that since the document is a family arrangement, therefore, the same was not required to be stamped. It is submitted that since the document itself is not required to be stamped, therefore, question that document was not properly stamped does not arise. It is submitted that evidence has yet to begin. It is submitted that the petitioners are having full opportunity to object the execution of the document in evidence. It is submitted that in the facts and circumstances of the case application filed by the petitioners be dismissed.

Undisputedly, the nature of the document is family arrangement on the basis of which the suit has been filed by respondent No. 1, which is dated 30-1-94. It is also not in dispute that the document, which has been filed by the respondent No. 1 is a photocopy as in spite of notice the petitioners did not file the document on the ground that petitioners are not in possession. It appears that at the lime of passing of impugned order learned Court below has not examined this aspect of the case whether the document family arrangement is at all required to be registered or stamped or not. In the facts and circumstances of the case, petition filed by the petitioners is allowed and the impugned order is set aside with a direction to the learned Trial Court to re-decide the objections raised by the petitioners and at that lime learned Court below shall also take into consideration the ground, which has been raised by respondent No. 1 that the document in question is neither required to be stamped nor registered. With the aforesaid observations petition stands disposed of. No order as to costs.