IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2737 OF 2009 Between: 1. Burra Yadagiri 2. Burra Krishna Murthy ..... Petitioners/Defendant Nos.3 & 4 AND 1. Smt. Razia Begum 2. Smt. Sufia Begum ..... Respondents/Plaintiffs 3. Abdul Rasheed 4. Asma Begum 5. Kanki Ilaiah 6. Devunuri Ilaiah 7. Devunuri Pedda Ilaiah 8. Devunuri Balaiah 9. Paudala Ramaiah 10. Paudala Narsaiah 11. Kanki Yellamma 12. Kanki Mallaiah 13. Kanki Yellaiah ..... Respondents/Defendant Nos.1, 2, 5 to 13 The Court made the following: ORDER: Heard Sri S.Bhooma Goud, learned counsel for the Revision Petitioners and Sri M.Basith Ali Yavar, learned counsel for the Respondent Nos.1 and 2. 2. This Revision is directed against the order, dated 17.03.2009, passed by the learned Senior Civil Judge, Siddipet, Medak District, on the Memo filed by the plaintiffs on 17.03.2009 in O.S.No.174 of 2006 on his file. 3. The plaintiffs sued the defendants for a declaration of the joint ownership of the plaintiffs and Defendant Nos.1 and 2 over the suit schedule lands and to declare the validation of the unregistered sale deed and 13 (b) Certificate to be null and void and not binding on them and for other consequential reliefs including partition and possession. The suit was contested by the Defendant Nos.3 and 4 and other defendants and is in the process of trial. 4. The plaintiffs in their Memo referred to the objection to mark the unregistered Sale Deed/Agreement of Sale, dated 30.06.1958, and the absence of any regularization of the said document on which no stamp duty was paid. The plaintiffs contended that it is to be known whether the Sale Deed/Agreement of Sale, dated 30.06.1958, was regularized; whether there was any clerical mistake in issuing Section 13 (b) Sale Validation Certificate; and whether the desire of the defendants to pay stamp duty and penalty creates a doubt regarding the claimed earlier submission of the document to the Record of Rights authorities. 5. The Defendant Nos.3 and 4 responded to the Memo explaining that the Correction Certificate to be issued by the Tahasildar, Kondapak Mandal, could not be obtained inspite of approaching the office of the Tahasildar as they were stating the file to be not traced. In the meanwhile, the defendants expressed their readiness to pay the deficit stamp duty and penalty in respect of the document and also undertook to file all the documents traced by the Tahasildar’s office, if they are traced subsequently. 6. The trial Court felt that when the defendants mentioned about filing of the petition under Section 5-A of the Record of Rights Act and getting the Sale Deed validated by paying stamp duty and registration charges, permitting the defendants all over again to pay the deficit stamp duty did not arise. 7. What the defendants contend herein is that the payment of deficit stamp duty by the defendants will not effect to the plaintiffs in any manner and it was the absence of the record about approaching the authorities under the Record of Rights Act that compelled them to come before the Court with such a request. 8. Sri M.Basith Ali Yavar, learned counsel for the Respondent Nos.1 and 2/Plaintiffs contended that the unregistered document is inadmissible for any purpose and cannot be looked into even if any deficit stamp duty is paid. The learned counsel also contended that the inconsistent stands taken by the Defendant Nos.3 and 4 about getting validation under Section 13 (b) through an application under Section 5-A of the Record of Rights Act and now seeking to pay deficit stamp duty and penalty on the ground of unavailability of the records at the Tahasildar’s office cannot be permitted. 9. The learned counsel relied on a decision reported in Avinash Kumar Chauhan v. Vijay Krishna Mishra[1], wherein the Apex Court referred to Section 49 of the Registration Act, 1908, and Section 35 of the Stamp Act, 1899, and also the precedents on the question and concluded that Section 35 of the Stamp Act, 1899, makes a document inadmissible for any purpose and consequently, it cannot be admitted even for collateral purposes, while even in the absence of such absolute prohibition under Section 49 of the Registration Act, 1908, which permits receiving an unregistered document for a collateral purpose, the document must be duly stamped complying with the requirements of Section 35 of the Stamp Act, 1899. The principle is unexceptionable and unless the stamp duty and penalty is paid, the document in question could not be even looked into for any purpose, while after payment of such stamp duty and penalty, the question would be as to for what purpose this unregistered document can be looked into, if it were to be considered to be a document requiring registration and whether such looking into of the document for a collateral purpose probablises any circumstance in favour of the defendants. 10. While thus, there is no absolute prohibition against looking into the unregistered document, if the mandatory provisions of the Stamp Act, 1899, are complied with, the truth or otherwise of the allegations of the Defendant Nos.3 and 4 about the document and about the incorrect mention of the name of the vendor have to be gone into during trial and decided by the trial Court and not while considering any request for permission to pay the deficit stamp duty and penalty. Even if the Defendant Nos.3 and 4 have contended that they have paid such stamp duty while making an application under Section 5 of the Record of Rights Act and even if they failed in producing the said record, if the same has to be attributed to the failure of the Tahasildar’s office to trace the relevant records, preventing the Defendant Nos.3 and 4 from paying the deficit stamp duty and penalty on the document in order to produce the same in the evidence will be unjust and unreasonable. 11. No provision of law or principle has been brought to notice which prohibits a party from paying the deficit stamp duty and penalty all over again, at its risk and expense, even if such stamp duty and penalty were claimed to have been paid earlier, which could not be proved. 12. Therefore, preventing the Defendant Nos.3 and 4 altogether from paying the deficit stamp duty and penalty is illegal and the questions about the admissibility of the document for any purpose after such payment of deficit stamp duty and penalty and the credibility of the document will be for the trial Court to decide on merits with the plaintiffs having liberty to raise all their objections in that regard before the trial Court. 13. Accordingly, the impugned order, dated 17.03.2009, on the Memo filed by the plaintiffs in O.S.No.174 of 2006, on the file of the learned Senior Civil Judge, Siddipet, is set aside and the Defendant Nos.3 and 4 be permitted to pay the deficit stamp duty and penalty in accordance with law on the subject document, if they so desire. 14. The Civil Revision Petition is, accordingly, allowed. No costs. _______________________ (G. BHAVANI PRASAD, J) Dated: 23rd December, 2009. KL [1] 2009 (1) ALD 109 (SC)