@»te?" ^i&v '- • ^.tf- IN THE HIGH COURT Of JUDICATURE :: CG :: BILASPUR WRIT PETITION i(227) N0 : ^ 5^ 01 2010 PETITIONER DEFENDANT ,tf l/c'.,.- >^-•J-^\y-:^ ^c- M^ ,;-%s%y"* V- 'l. Shankar Lal Yadav aged44yrs s/o Shri Khodahara Raui 2. Smfc Bhagavati Yadav aged 40 yrs w/o Shri Shankar Lal botfa l/o: Gram-Khainariha Tah-Takhatpur Distt-BUaspur CG -VERSUS- f > <;;' RESPONDENT PLAINTIFF , Smt.K.BasantaNair aged 54 yrs, w/o ShriK.R.Nair r/o : Nehru Nagar, Bilaspur CG WRIT FETITION UNDER ARTICLE 227 Of THE CONSTITUTION OF INDIA__ The Petitioners respectfuUy submit as under: B^If .'y^ L'^ '% '^ t ^gst. 1 \..^^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale^Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition (2271 No.434 of 2010 Shankar Lal Yadav and another versus Smt. K. Basanta Nair ORDER Postfor fefe-1-2011 Sd//- Prashant Kumar Mishra Judge 1-1( "'x'* i 1 <* ,' HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition (227) No.434 of 2010 Petitioners Respondent versus Shankar Lal Yadav and another Smt. K. Basanta Nair Present: Shri Anurag Dayal Shrivastava, counsel for thepetitioners. Shri G.S.Agrawal, Senior Advocate with Miss Veena Nair.counsel for the respondent. Writ Petition underArticle 227 ofthe Constitution of India ORDER (Passed on JV^ January, 2011) The petitioners have challenged the legality and validity of the order dated 9-10-2009 passed by the trial Court overruling their objection under Sections 33 and 35 of the Stamp Act, 1899 (henceforth 'the Act'), for impounding the subject agreement and making recovery of the deficit stamp duty together with penalty. 2. Admittedly, the suit filed by the respondent/plaintiff was for recovery of amount of Rs.2,14.000/-. According to the plaintiff, an agreement to sell was entered into between the parties on 19-6- 2006 and the petitioners/defendants received the entire sale consideration of Rs.4 Lakhs on the date of execution of the agreement and has also transferred possession of the property. However, the defendants did not execute the sale-deed. Out of the amount of Rs.4 Lakhs, the defendants repaid Rs.2,25,000/- on 5-6- -j! 2007 and agreed to make payment of the balance amount of Rs.1,75,000/- by 15-6-2007. On the defendants' failure to repay the balance amount, the suit for recovery of Rs.2,14,000/- has been filed. 3. The petitioners/defendants moved subject application under Sections 33 and 35 of the Act for impounding and making recovery of the stamp duty on the ground that since delivery of possession has also been made at the time of entering into the agreement, the same is not admissible in evidence for want of payment of adequate stamp duty. The said objection has been rejected by the trial Court. 4. Learned counsel for the petitioners/defendants has reiterated the argument thatsince possession has been delivered by the subject agreement, the same is inadmissible and deserves to be impounded and deficit stamp duty together with penalty should be recovered. 5. On the other hand, learned counsel for the respondent/plaintiff would submit that the respondent/plaintiff is not seeking any relief on the basis of original agreement but she is seeking relief only on the basis of endorsement made on the reverse side of the agreement by which the amount of Rs.2,25,000/- was repaid and the petitioners promised to make payment of the balance amount by 15-6-2007. According to learned counsel for the respondent, the endorsement constitutes separate agreement which has nothing to do with the earlier agreement. Learned counsel for the respondent has relied 'on Vakkalanka Kondamma vs. Kasaneedi Venkatarayadu and others, AIR 1939 Madras 34 and Guni Ram and another vs. Kodai and others, AIR 1971 Allahabad 434. 6. In Avinash Kumar Chauhan vs. Vijay Krishna Mishra, (2009) 2 SCC 532, the Hon'ble Supreme Court has held that when at the time of execution of agreement the entire amount of consideration was paid and possession of the property was transferred, the said instrument is not admissible in evidence for any purpose, if adequate stamp duty has not been paid. Paragraphs 19 to 22 of the said report are reproduced hereunder: "19. 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 (supra) this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. Itwas opined:- "The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 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 to be seen is the nature of possession of the 1 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 unauthorized..." In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [See Pandey Oraon v. Ram Chander Sahu, 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, (2004) 10SCC65]. 20. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under:- "49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall— (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (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 peri'ormance 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." 21. 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 L^ 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. 22. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parmanand, [AIR 1946 PC 51] wherein itwas held:- "That the words 'for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms." The said decision has been followed in a large number of decisions by the said Court. In Bhaskarabhotla Padmanabhaiah and others v. B. Lakshminarayana and others [AIR 1962 A.P. 132], it has been held:- "9. !n this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in Ram Rattan v. Parmanand, AIR 1946 PC 51, their Lordships ofthe Privy Council held that the words 'for any purpose' in S. 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms." It was furthermore held:- "10. In the result, l agree with the learned Munsif- Magistrate that the document is 'an instrument of partition' under Sec. 2(15) of the Indian Stamp Act and it is not admissible in evidence because it is not stamped. //''' $5 l>-. •^. ^' /•J 'K '^:svy^y But, 1 further held that if the document becomes duly stamped, then it would be admissible to evidence to prove the division in status but not the terms of the partition." In Sanjeeva Reddi v. JohanputraReddi, [AIR 1972 AP 373], it has been held:- "9. While considering the scope of Section 35 of the Indian Stamp Act we cannot bring in the effect of non- registration of a document under Section 49 of the Indian RegistrationAct. Section 17 of the Indian Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non- registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purposes, it would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in the case of B. Rangaiah v. B. Rangaswamy, (1970) 2 Andh WR 181 which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two 'instruments though contained in one document, one a 7 settlement in favour of the 4 defendant therein and the other a Will. It was therefore held that part of the instrument which constitutes a Will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Sec. 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matters would not at all be chargeable under the Act as in the case before him." In T. Bhaskar Rao v. T. Gabriel and others, (AIR 1981 AP 175), it has been held:- "5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence. Proviso A to Section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty ifthe document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (A) to Section 35 are complied with. It follows that if the requirements of proviso (A) to Section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence." It was further held:- "7. It is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for ?5) Gopal collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act." (See also Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chanda and others, AIR 1965 All 164) and Chandra Sekhar Misra v. Gobinda Chandra Das, (AIR 19660ri. 18)." 7. In view of the law laid down by the Hon'ble Supreme Court, this Court is unable to accept the plea raised by the respondent/plaintiff that the plaintiff is seeking enforcementof the endorsement made on the reverse side of the agreement and not of the original agreement, therefore, the instrument need not be impounded. It is to be seen that payment of Rs.4 Lakhs was made on 19-6-2006 by the subject agreement and unless the said payment is proved, the endorsement may not be treated as an independent contract. At best, it may again be construed as acknowledgement of receipt of Rs.4 Lakhs, however, on a reading of the plaint, it would clearly appear that to succeed in the suit, the plaintiff has to prove the original agreement dated 19-6-2006. Thus, the judgment relied by the respondent has no application in facts of the present case and more so in view of the law laid down by the Hon'ble Supreme Court in Avinash Kumar Chauhan vs. Vijay Krishna Mishra (supra). 8. In the result, the impugned order is set aside. The writ petition is allowed. The trial Court is directed to proceed to impound the document and recover stamp duty in accordance with the relevant provisions of the Act. ——— Sd//- Prashant Kumar Mishra Judge