IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2010 CORAM THE HONOURABLE MR. JUSTICE K.MOHAN RAM C.R.P. (PD) No.853 of 2010 and M.P.No. 1 of 2010 V. Jayaraman .. Petitioner/Petitioner Versus K.A. Ubaidur Rahman .. Respondent/Respondent The Civil Revision Petition has been filed under Article 227 o Constitution of India against the order dated 21.01.2010 made i M.P.No.456 of 2009 in RCOP.No.179 of 2008 on the file of the XVI Smal Causes Court, Chennai. For Petitioner : Mr.R.M. Sundar For Respondent : Mr. K.M. Asan Ali Khan ORDER The petitioner in the above Civil Revision Petition is th petitioner in RCOP.No.179 of 2008. The petitioner has file RCOP.No.179 of 2008 before XVI Small Causes Judge (Rent Controller) Chennai, seeking fixation of fair rent to the premises rented out t the respondent, namely, shop portion in No.12/2, Block No.1, Tami Nadu Housing Board, Muthamizh Nagar, Kodungaiyur, Chennai – 118. Th respondent is contesting the same by filing counter affidavit. 2. The petitioner herein has filed M.P.No.456 of 2009 t impound Exs.R1 to 8 for non-payment of sufficient stamp duty on the contending that Exs.R1 to 8 are rental agreements for various period between the petitioner and the respondent and they are executed on stamp paper of value of Rs.20/- and the same were not sufficientl stamped. The contention of the petitioner was that as far as renta agreement is concerned for every Rs.100/- or part thereof of th amount of the rent, fine, premium or advance, stamp duty should b payable at Rs.1 per Rs.100/-. The said petition was opposed by th respondent herein contending that Exs.R1 to 8 are original copies o the agreements which were executed by the petitioner in favour of th respondent and they have been duly stamped and these documents hav been exhibited for collateral purpose for ascertaining the address o https://hcservices.ecourts.gov.in/hcservices/ the petition premises. He has further contended that there is n necessity to pay any stamp duty or registration is necessary since th period of lease is for eleven months. 3. The court below on the consideration of the riva contentions dismissed the petition holding that the period of leas being 11 months, it is not compulsorily registrable and hence the sam is admissible in evidence. Being aggrieved by that, the petitioner i before this Court. 4. Heard both. 5. Learned counsel for the petitioner submits that th documents Exs.R1 to R8 are original lease deeds and though the perio of lease is for 11 months and it is not compulsorily registrable ye they should be properly stamped as per the provisions of the India Stamp Act; the contention put forth by the petitioner before the Ren Controller have not been properly considered; the Rent Controller ha considered only the question of non-registration of document, but ha not considered the question of insufficient stamping of the document Learned counsel for the petitioner further submits that if a documen is not sufficiently stamped, it cannot be looked into even fo collateral purpose, since the stamp duty and penalty is deficit placing reliance on the following decision of the Hon'ble Apex Cour in (2009) 2 Supreme Court Cases 532 (Avinash Kumar Chauhan Vs. Vija Krishna Mishra). The Hon'ble Apex Court in paragraphs 22 and 23 ha laid down as under : "22. We have noticed hereto before that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act. 23. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion is not correct. In Bondar Singh, this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined: (SCC p. 163, para 5) " 5. The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit https://hcservices.ecourts.gov.in/hcservices/ lands. The sale deed dated 09.05.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in- interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law, a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised." In paragraph 25, it has been laid down as under : "25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes." In 2001 (4) CTC 597 (V.R.Devaraj ..vs.. G.Narayanasamy and 4 others) learned single Judge of this Court placing reliance of the decision o the Hon'ble Apex Court in 2001 (3) SCC 1 (Bipin Shantilal Panchal . vs.. State of Gujarat and another) has held that if the objectio relates to deficiency of stamp duty of a document, the court has t decide the objection before proceeding further and for all othe objections, the procedure suggested in the said decision of th Hon'ble Apex Court can be followed. In 2008 (2) CTC 11 (Thailamma and others ..vs.. Karuppanan and others), learned single Judge of thi Court has laid down that it is a trite proposition of law that an immovable property worth more than Rs.100/- should be stamped properl and registered; even for relying on collateral purposes, it should b a properly stamped one. As otherwise, the stamp duty and penal dut should be collected and then only, it could be marked and relied o for collateral purpose. https://hcservices.ecourts.gov.in/hcservices/ 6. Countering the said submissions, Mr.Asan Ali Khan, learne counsel for the respondent submitted that when admittedly Exs.R1 to R are copies of the originals of the lease deeds executed between th petitioner and the respondent and they are for a period not exceedin 11 months, they are not compulsorily registrable and as such they ca be looked into for collateral purposes. According to the learne counsel, the copy available with the respondent need not be stampe and the original available with the petitioner alone are liable to b stamped in accordance with Indian Stamp Act; even if it i insufficiently stamped, it can be looked into for collateral purpose namely, to ascertain the address of the premises, which is leased ou and the question of insufficiency of stamp duty can be gone into onl at the time of final disposal of RCOP. In support of the sai contention, the learned counsel relied upon a decision reported i "1997-1-LW.763 (Satish Kumar Vs. Zarif Ahmed and others)". In th said decision, in paragraph 8 it has been laid down as follows:- 8. Section 49 of the Registration Act prohibits receiving in evidence certain types of documents. It reads as under: No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, or (c) be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered: The proviso is not applicable to the facts in this case and, therefore, it is not necessary to look into the exceptions engrafted vis-a-vis receipt of a document comprising of three circumstances mentioned therein, namely, unregistered document used for enforcement of specific performance under the Specific Relief Act or used as an evidence of part performance of the contract under Section 53-A of the TP Act or using evidence for collateral transactions. The combined effect of all the provisions is that an unregistered lease deed executed from month to month, for a period not exceeding 11 months, though reduced to writing and possession is delivered thereunder to a tenant, is not a compulsorily registrable instrument and, therefore, the prohibition contained in Section 49 of the Registration Act is inapplicable. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ document is admissible in evidence to consider the effect of the immovable property contained therein or to receive as an evidence of any transaction vis-a-vis such property." In 1998(1) L.W.208 (Kousalya Ammal Vs. Valliammai Ammal & another), i paragraph 15, it has been laid down as under:- "15. Therefore on consideration of the entire materials placed before me and of the arguments advanced by both sides, I am of the view that the document in question can certainly be looked into for collateral purpose, namely, for the purpose of proving the plaintiff's character of possession. No prejudice should be caused to the respondent by marking the document. Mere marking the document does not prove any of the recitals of the document itself. The truth of the document had to be independently proved. It is always open to the respondent to contend that he did not execute the document al all and that even for a collateral purpose, it cannot be relied on." In 1998 (2) MLJ 110 (Rangaraj (a) Sakkararaj and another Vs Guruvammal and others), in paragraph 5, it has been laid down a under:- "5. ..... In the present case, the document in question is only in respect of a common property and according to the petitioners/plaintiffs, they have been exercising their rights over the said property as mentioned in the said documents. Only in order to establish the same, the petitioners sought to mark the said documents. Therefore, it cannot be said that they want to enforce their rights under the said document. Moreover, as held by the Apex Court, the said document is incapable of valuation. Since the said document cannot be valued, the agreement sought to be marked is not a compulsory document to be registered under Sec.17 (1)(b) of the Registration Act." 7. I have considered the above said submissions made on eithe side and perused the materials available on record. 8. At the outset it has to be pointed out that when a agreement of lease is executed between the landlord and tenant normally, lease agreement is prepared in duplicate i.e., both ar originals, signed by both the landlord and tenant. If that being so it cannot be contended by the respondent that the agreement availabl with the tenant is only a copy and not the original and therefore i https://hcservices.ecourts.gov.in/hcservices/ need not be sufficiently stamped. Therefore, the contention of th learned counsel for the respondent that Exs.R1 to R8 need not b stamped as contemplated in the Indian Stamp Act but the origina agreement available with the petitioner alone has to be stamped i accordance with Indian Stamp Act cannot be countenanced. There is n dispute that Exs.R1 to R8 are insufficiently stamped. When that bein so, whether the same can be admitted in evidence and when suc documents are produced before the court what is the procedure to b followed have to be considered. In the decision reported in 2009 (2 SCC 532 cited supra, on consideration of the provisions contained i Section 33 of the Stamp Act, the Hon'ble Apex Court has observed tha Section 33 of Act casts a statutory obligation on all the authoritie to impound the document. The court being an authority to receive document in evidence is bound to give effect thereto. Th unregistered deed of sale was an instrument which required payment o the stamp duty applicable to a deed of conveyance. Adequate stam duty admittedly was not paid. The Court, therefore, was empowered t pass an order in terms of Section 35 of the Act. The contentio raised in that case that the document though insufficiently stamped i admissible for collateral purpose was rejected. In the said decision it has been further held that Section 35 of the Act provides tha documents which were insufficiently stamped shall not be admitted fo any purpose whatsoever, including for collateral purpose. In th decision reported in 2008 (2) CTC 11 cited supra, it has been lai down that any immovable property worth more than Rs.100/- should b stamped properly and registered; even for relying on collatera purposes, it should be a properly stamped one. As otherwise, th stamp duty and penalty should be collected and then only, it could b marked and relied on for collateral purpose. In the decision in 200 (4) CTC 597 cited supra, it has been laid down that whenever a objection is raised during evidence-taking stage regarding th admissibility of any material or item of oral evidence, the tria court can make a note of such objection and mark the objected documen tentatively as an exhibit in the case (or record the objected part o the oral evidence) subject to such objections to be decided at th last stage in the final judgment/order. But, however, it has bee clarified in the said decision that if the objection relates t deficiency of stamp duty of the document, the Court has to decide th objection before proceeding further. Therefore, since the contentio of the petitioner that Exs.R1 to R8 are insufficiently stamped, th question of admissibility has to be decided at the evidence takin stage itself. When the petitioner has filed a petition to invoke th provisions contained in Section 33 of the Act to impound the document the Rent Controller ought to have considered the question as t whether those provisions contained in section 35 of the Act ar applicable to Exs.R1 to R8. When it is not in dispute that Exs.R1 t R8 have not been sufficiently stamped automatically, the provision under Section 33 of the Act are attracted. But, unfortunately, th learned Rent Controller has not considered the question o insufficient stamping of Exs.R1 to R8, but has only considered th https://hcservices.ecourts.gov.in/hcservices/ non-registration of those documents and their effect and ha considered the decisions in that context only. 9. The decision relied upon by the learned counsel for th respondent relates only to the provisions of the Registration Act an the consequences of the non-registration of a document and whether th same can be looked into for collateral purposes. But all the thre decisions relied upon by the learned counsel have not considered th provisions of the Indian Stamp Act. Therefore, the said decisions ar not applicable to the facts of this case. As is laid down in 2009 (2 SCC 532 cited supra, Section 33 of the Act casts statutory obligation on all the authorities to impound a document if it is insufficientl stamped. Therefore, the Court being the authority is bound to giv effect thereto. 10. For the above said reasons, the order passed by the Ren Controller are not sustainable and the same is set aside and the Civi Revision Petition is allowed. Consequently, connected Miscellaneou Petition is closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar mra To The Rent Controller, XVIth Judge, Small Causes Court, Chennai. + 1 CC to Mr.K.M.M.Asan Ali Khan,Advocate,SR.48762 + 1 CC to Mr.R.M.Sundar,Advocate,SR.48646 C.R.P. (PD) No.853 of 201 an M.P.No. 1 of 201 GV(CO) EM/21.7.10 https://hcservices.ecourts.gov.in/hcservices/