IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 32004 of 2009(O) -------------------------- OS.130/2002 of SUB COURT, OTTAPPALAM .................... PETITIONER: --------------- K.S.MUHAMMED, S/O. KORAKKOTTIL SAITHALI HAJI, MUTHUTHALA AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENTS: --------------- 1. MARIYUMMA, D/O. ULLATTUTHODIYIL KOYAMU (LATE), NETHIRIMANGLAM AMSOM AND DESOM, OTTAPALAM TALUK. 2. ABDULLA, S/O. ULLATTUTHODIYIL KOYAMU (LATE), NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK. 3. ASSYA UMMA, D/O. ULLATTUTHODIYIL KOYAMU (LATE), NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV.SRI.T.SETHUMADHAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2009 ALONG WITH WPC NO. 32038 OF 2009, THE COURT ON 11/12/2009 DELIVERED THE FOLLOWING: APPENDIX(WPC 32004/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF PLAINT IN O.S.NO.130/02 ON THE FILE OF THE SUB COURT, OTTAPPALAM. EXT.P2: TRUE COPY OF AGREEMENT DATED 5.12.1995 EXECUTED BY PATHUNNI UMMA IN FAVOUR OF THE PETITIONER. EXT.P3: TRUE COPY OF ORDER OF THE SUBORDINATE JUDGE OF OTTAPPALAM IN O.S.NO.130 OF 2002 DATED 12.10.2009. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.32004 and 32038 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 11th December, 2009 JUDGMENT These two writ petitions are filed by a common petitioner challenging the orders passed by the learned Sub Judge, Ottapalam, in two suits instituted by him as plaintiff, directing for impounding of the documents produced by him in the respective suits for insufficiency of stamp on such documents. The defendants in the two suits in which the impugned orders have been passed are arrayed as the respondents in the respective writ petitions. Since common questions of law emerge for consideration in both the writ petitions, they are heard together and disposed under this common judgment. 2. Notice given, the respondents have entered appearance. I heard the counsel on both sides. Both the suits have been filed for specific performance of agreements of sale. The trial of both cases is now in progress. Reception of the documents relied by the petitioner/plaintiff, the agreements of sale, in evidence was challenged by the defendants contending that the terms of such documents spell out that they are mortgage deeds and as they are not properly stamped and unregistered, the documents are liable to W.P.C.Nos.32004 &32038/09 - 2 - be impounded and proceeded under Section 37(2) of the Kerala Stamp Act. Objections so raised by the defendants in the respective suits, after hearing both sides, were accepted by the learned Sub Judge, who passed the impugned orders directing for impounding the documents and forwarding them to the District Collector as envisaged under the provisions of the Stamp Act. Propriety and correctness of those orders is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Learned counsel for the petitioner submitted that since the execution of the documents had been denied by the defendants, there is no legal hurdle in the marking of that document deferring the question of considering its admissibility in evidence after a finding is entered as to whether the document had been duly executed. I cannot agree with the proposition canvassed by the learned counsel. When a document is tendered in evidence, any objection relating to the deficiency of the stamp duty on the document or its registration has to be decided before proceeding further. In the impugned orders, the learned Sub Judge has quoted the relevant recitals in the documents produced by the petitioner, which would prima facie W.P.C.Nos.32004 &32038/09 - 3 - sustain the objections canvassed by the respondents that the documents spell out the characteristics of a mortgage over immovable property, furnished as security for repayment of the sum covered by the loan transaction. The documents which were written on stamp paper worth Rs.50/- styled as agreements having been found to evince all the characteristics of creating mortgage over immovable property as security for the loan transaction, the learned Sub Judge has passed the impugned orders in the respective suits for impounding the documents insufficiently stamped and directing for forwarding them to the District Collector to realise the stamp duty and penalty payable on such instruments. I do not find any impropriety or illegality in the orders so passed by the learned Sub Judge. The apex court in Ram Rattan v. Bajrang Lal (AIR 1978 S.C. 1393) has frowned upon the practice of marking the documents in evidence subject to objection as to the admissibility on the ground of deficiency in stamp duty. The apex court has held thus: “When the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial W.P.C.Nos.32004 &32038/09 - 4 - judge to apply his mind to the objection raised and to decide the objection in accordance with law.” In a later decision in Bipin Shantilal Panchal v. State of Gujarat (AIR 2001 S.C. 1158) taking note that the practice of first deciding the objection raised to admissibility of a document in evidence impedes steady and swift progress of trial the apex court has held that making a note of the objection, the objected document can be marked tentatively leaving the decision for determination at the final stage. But, while expressing such a view, the apex court has cautioned that if the objection relates to deficiency of stamp duty of a document, the court has to decide that objection before proceeding further. That being the law as settled by the apex court when the documents produced by the petitioner/plaintiff are found to be insufficiently stamped, leaving aside the question whether they are to be registered or not, necessarily and inevitably the documents produced have to be impounded and forwarded to the concerned authority for realisation of the stamp duty and penalty payable. There cannot be any question of marking the document tentatively leaving open the decision on the objection as to the insufficiency of the stamp duty at a later stage. There is no merit in the challenges raised in the W.P.C.Nos.32004 &32038/09 - 5 - writ petitions against the orders passed by the learned Sub Judge. Writ Petitions are dismissed. srd S.S. SATHEESACHANDRAN, JUDGE