1 WP 5739/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5739 OF 2010 Gulam Hussain B. Mulla, deceased through heirs Smt. Phullen Gulam Hussain Mulla & Ors. .. Petitioners V/s Baliram Narayan Gaikar & Ors. .. Respondent Mr. S. A. Ghaisas for the petitioners. Mr. R.P. Lote for respondents. CORAM : D.G. KARNIK, J. DATE : 10TH DECEMBER 2010 P.C. : 1. Rule, returnable forthwith. Mr. Lote waives service for the respondents. 2. By consent, taken up for hearing. 3. The petition is directed against an order dated 25th June 2010 passed by the learned Joint Civil Judge, Junior Division, Kalyan, rejecting the petitioners’ application (Exhibit 141) for impounding of the four lease deeds. 4. In a suit filed by the petitioners against the respondents, the respondents sought to produce through their witness Shri 2 WP 5739/10 Sunil Patil four lease deeds, copies of which are at page nos.35 to 45 of the petition. As the documents were sought to be tendered in evidence, the petitioners objected to they being exhibited and reading them in evidence on the ground that they were not properly stamped and therefore were not admissible in evidence. They thereafter made a formal application at Exhibit 141 for impounding of the documents under section 33 of the Bombay Stamp Act, 1958 (for short “the Stamp Act”). 5. Perusal of the lease deeds shows that the lease/tenancies thereby created are not for a definite period and therefore they are covered by Article 36(a)(v) of the Stamp Act as it stood at the time when the lease deeds were executed. At the relevant time Article 36(a)(v) of the Stamp Act provided that where a lease purports to be in excess of 30 years or in perpetuity or does not purport to be of a definite period, it would attract the same duty as is leviable on a conveyance of an amount equivalent to ten times the average annual rent. Two of the lease deeds are executed on stamp paper of Rs.10/- and the other two are executed on stamp paper of Rs.5/- which is obviously less than the stamp duty payable under Article 36(a) (v) of the Stamp Act. The lease deeds are therefore not admissible in evidence and they were required to be impounded 3 WP 5739/10 under section 33 of the Stamp Act. Counsel for the respondent submitted that only the provisions of section 17 of the Registration Act were required to be considered. In my view, the trial Court had no occasion to consider the provisions of section 17 of the Registration Act at that stage because the application was for impounding of the documents as they were improperly stamped. 6. For these reasons, the impugned order is set aside. The four documents purporting to be lease deeds be impounded by the trial Court and be sent to the Collector of Stamps for determination and recovery of the appropriate stamp duty and penalty. 7. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)