HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRP.No.2766 of 2019
ORDER:
This Civil Revision Petition is directed to revise the order, dated 01.10.2018, passed in I.A.No.517 of 2017 in O.S.No.535 of 2006 on the file of I Additional Senior Civil Judge's Court, Ranga Reddy District by allowing the said I.A.
2. The respondents/plaintiffs filed O.S.No.535 of 2006 against the petitioner/defendant for cancellation of sale deed bearing document No.2383 of 2003, dated 26.06.2003 in respect of schedule property admeasuring Ac.1-31 guntas in survey No.397 situated at Pasumamla Village. The petitioner filed written statement and when the case was coming-up for marking of documents, an objection was raised for marking of unregistered agreement of sale dated 16.04.1982. On that he filed I.A.No.517 of 2017 is filed either to send the original agreement of sale dated 16.04.1982 to the Collector/District Registrar, Ranga Reddy or to collect the deficit stamp duty before the Court. The said petition was opposed by respondents on the ground that the petitioner is not a party to the alleged agreement of sale and the same was executed in favour of mother of the petitioner by name Smt.N.Susheela and basing on -2- the said agreement of sale, the mother of the petitioner filed O.S.No.628 of 1997 on the file of II Additional Senior Civil Judge against the respondents for relief of Specific Performance and the said suit was dismissed on 26.06.2003. The petitioner filed said agreement of sale in collusion with his mother and he could not be permitted to send the document for impounding. The learned Judge after hearing both sides, dismissed the application on the ground that the reasons assigned in the petition are not convincing so also he is not a party to the said agreement of sale and as such, the document need not be sent for impounding and rejected marking of said document. Challenging the said orders, the present CRP is filed.
3. Learned counsel for the petitioner submits that the trial Court has erred in rejecting the application on the ground that reasons assigned in the petition are not convincing. But the subject document is very much relevant to prove the case of the petitioner. He also submits that the trial Court is not justified in rejecting the document without impounding the same. He prays to allow the CRP. In support of his contentions, he relied on the judgment of Trinadha Patro v. Lingaraj Rana1. 1 2015 (6) ALD 617 -3-
4. Per contra, learned counsel for the respondents submits that the petitioner is not a party to the subject document and it is not at all relevant to decide the lis between the parties and the trial Court has rightly dismissed the application and as such, prayed to dismiss the CRP.
5. Thus on hearing the submissions of both counsel, the point that arises for consideration in this CRP is; whether the impugned order dated 01.10.2018 is sustainable under law?
6. A perusal of the pleadings discloses that during the evidence of the petitioner, he has filed the unregistered agreement of sale and the respondents raised objection for marking of the same. It is the case of the petitioner that the said document was executed in favour of his mother on 16.04.1982 and after the execution of the same, the vendors had executed General Power of Attorney (G.P.A.) to perform their part under the agreement and agreement of sale was executed in his favour. The petitioner is prepared to pay deficit stamp duty on the agreement of sale dated 16.04.1982.
7. Undisputedly, the unregistered agreement of sale dated 16.04.1982, the petitioner is not a party, but his mother is a party to the said document. She filed O.S.No.628 of 1997 for specific performance on the file of II Additional Senior Civil -4- Judge against the respondents and also the petitioner is arrayed as defendant No.17 in the said suit.
The said suit was dismissed as not pressed. The trial Court refused to send the same for impounding on the objection raised by the respondents and rejected for marking the document. In the Trinadha Patro's case supra, this Court in para Nos.11 and 12 held as under:
11. In the instant case, since the mortgage deed dated 31.03.2003 in issue is not duly stamped and registered, it is inadmissible in evidence and it is liable to be impounded under Section 33 of the Indian Stamp Act. The Court shall impound the mortgage deed and collect the requisite stamp duty and penalty under Section 35 of the Indian Stamp Act.
12. The Apex Court reiterated this aspect in Government of Andhra Pradesh v. Smt. P.Laxmi Devi as follows:
12. A perusal of the said provision shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word 'shall' in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word 'shall' in Section 33(1) does not mean 'may' but means `shall'. In other words, it is mandatory to impound a document produced before him or which comes before him in the performance of his functions.
So at the stage of impounding the document, the trial Court, in my considered view, need not probe into the fact whether the said document will pass the test of relevancy to be admissible in evidence. That aspect can be relegated to a later -5- stage. It must also be noted that the mortgage deed is an unregistered one. Hence, whether the said document can be admitted in evidence for collateral purpose under Section 49 of Indian Registration Act can also be looked into at the time when the document is actually tendered in evidence on behalf of defendant. At that stage the defendant has to convince to the satisfaction of the trial Court that property covered by plaint schedule and mortgage deed is in fact one and the same and it is relevant for the purpose of proving his case and further, the same is admissible in evidence for collateral purpose. Hence, what is pertinent at this stage is only to impound the document and collect the proper stamp duty and penalty under the relevant provisions of Indian Stamp Act. Therefore, impugned order is liable to be set aside.
8. The judgment relied on by learned counsel for the petitioner supra, is very much relevant to the facts and circumstances of the present case. In the instant case, the alleged agreement of sale dated 16.04.1982 is not duly stamped and un-registered, which is inadmissible in evidence and it is liable to be impounded under Section 33 of the Indian Stamp Act, 1899 (for short "the Act). Since the provisions of the Act mandates to impound the document and collect requisite stamp duty as penalty, the alleged agreement of sale can be impounded. Though the trial Court has rejected and did not admit in evidence, in my considered view the Court below need not probe into the fact whether the said agreement of sale will pass the test of relevancy to be admissible in evidence. After impounding the same, it can be relegated to a later stage i.e. subsequent to impounding whether the document can be -6- admitted in evidence for collateral purpose or otherwise can be looked into at a later stage subject to satisfaction of the trial Court.
9. For the foregoing reasons, the impugned order dated 01.10.2018 is liable to be set aside.
10. In the result, the Civil Revision Petition is allowed. The impugned order dated 01.10.2018 is hereby set aside and the I.A.No.517 of 2017 is allowed. The trial Court is directed to send the original agreement of sale dated 16.04.1982 to the Collector/District Registrar, Ranga Reddy District for impounding under Section 38(2) of the Indian Stamp Act,1899 within in two weeks from the date of receipt of a copy of this order. The trial Court is further directed to fix time frame to the Collector/District Registrar to complete the process of impounding of said document, since the suit is of the year 2006.
Pending miscellaneous applications, if any, shall stand closed.
__________________________ A.SANTHOSH REDDY,J 19.09.2022 nvl -7- CRP.No.2766 of 2019 Operative portion of the order reads as under:-