Madhya Pradesh High Court

Chhatra Singh vs Smt. Shayamwati @ Bhukki Bai on 20 July, 2021

Author: Rajendra Kumar (Verma)

                            Object 2
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                                                   M.P.No.3398/2018

     THE HIGH COURT OF MADHYA PRADESH, JABALPUR


Misc. Petition No.          3393 of 2018
Parties Name                Chhatra   Singh vs.             Smt.
                            Shayamwati @ Bhukki           Bai &
                            others


Bench Constituted           Hon'ble Justice      Shri   Rajendra
                            Kumar (Verma)
Whether approved for                   Yes/No
reporting
Name of counsel for         For Petitioner:
parties
                            Shri A.K. Jain, Advocate.
                            For respondent:
                            Shri Ashok Lalwani, Advocate.
Law laid down
Significant paragraphs



Jabalpur, Dated     .07.2021.
          This petition under Article 227 of the Constitution of

India has been filed by the petitioner challenging the order

dated 12/07/2018 (Annexure P/4) passed by the Civil Judge

Class -   II Dindori in Civil Suit No.32-A/2015 whereby the

petitioner/defendant is directed to pay the stamp duty on the

partition deed/relinquishment deed.

2.        Facts

necessary for disposal of the present petition

in short are that respondent Nos. 1 & 2 along with their late

father had filed a suit for declaration, partition and possession

against the petitioner and other respondents contending that

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no partition had taken place in the family in respect of

disputed property and, therefore, a decree for partition and

possession be passed against the petitioner/defendant and

other respondents. The petitioner and other respondents

opposed the aforesaid claim contending that family partition

had already been taken place between the family member and

no partition is possible between the plaintiffs with other family

members.

3. The evidence of the respondent Nos. 1 & 2/plaintiffs

was recorded and at the time of evidence of the

petitioner/defendant when a partition deed which was

unregistered and unstamped was submitted, an objection was

taken by the respondent Nos. 1 & 2/plaintiffs to the effect that

the aforesaid document needs stamp duty and, therefore, it

cannot be exhibited under law. The petitioner/defendant

contended that earlier to the filing of the suit, the document of

partition was exhibited by the Court in the earlier partition suit

as Ex.D/1 and taking into consideration the same, the Court

below had dismissed the suit filed by the family members of

the petitioner and respondents holding that partition had taken

place between the family members. The Court below held that

the document sought to be admitted in evidence amounts to

partition and relinquishment deed and, therefore, it requires

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stamp duty and, therefore, directed to the petitioner to pay

stamp duty on the document vide impugned order.

4. Learned counsel for the petitioner has submitted

that a bare reading of the document clearly indicates that no

partition had taken place through the document and

relinquishment was also not done through the document. The

document clearly indicates that partition had already taken

between the member of the family and the members of the

family have no objection if name of one of the member of the

family is mutated in the revenue records. Thus, it is clear that

document did not require either registration or the stamp duty

as no title was transferred through the document although

styled as "Batvaranama". The contents of the documents are

important and not the caption of the document, which has to

be taken into consideration. Thus, the Court below is not

justified in imposing stamp duty on the petitioner. It is an

admitted fact that the document was tendered in evidence in

the earlier suit filed by the members of the family and marked

as Ex.D/1 in the evidence. The entire judgment of the Court

below was based on the fact of partition and if the document

was marked as an exhibit in the earlier suit, it attains the

shape of a public document as provided under Section 74 of

the Evidence Act, 1872 (hereinafter referred to as 'the Act of

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1872') and, therefore, question of paying stamp duty on the

aforesaid document does not arise.

5. It is also submitted that the plaintiff No.1 in the

earlier suit did not object to the admissibility of the document

on the ground of stamp duty and, therefore, in this suit the

legal heirs have no right to object the admissibility of the

document on the ground of stamp duty as provided under

Section 115 of the Act of 1872 on the principle of Estoppel by

conduct. Learned counsel for the petitioner has further

submitted that even if the document is not properly stamped

or registered, it can always be looked into for collateral

purpose to show that partition had taken place in past.

6. Learned counsel for the petitioner has further

submitted that there is direct conflict between Section 35 and

Section 49 of the Registration Act, 1908 (hereinafter referred

to as 'the Act of 1908'), as Section 35 provides that document

cannot be looked for any purpose whereas Section 49 provides

that even the document is not registered or unstamped, it can

be looked for collateral purpose. Therefore, the Court below

was not justified in rejecting the document straightway. In

support of his submissions, learned counsel for the petitioner

has placed reliance on the decision of the Supreme Court in

Roshan Singh and others vs. Zile Singh and others, AIR

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1988 SC 881.

7. Per contra, learned counsel for the respondent Nos.

1 to 19 has submitted that the Court below found that the said

document (Batwaranama) dated 12.09.1990 is a relinquish

deed and, therefore, it has impounded for stamp duty. It was

further submitted that mere marking of a document does not

dispense with it's requirement of proof. Even if the document

in question was marked as an exhibit, the same does not

become a part of the record of the Court and, therefore, is not

a public document. It was further submitted that if a document

is not duly stamped it would be inadmissible even for collateral

purposes. It also submitted that if an inadmissible document is

admitted in evidence, it can be questioned at any time. In

support of his submissions, learned counsel for the

respondents has placed reliance on the decision of the

Supreme Court in Kale and others vs Deputy Director of

Consolidation and others, AIR 1976 SC 807.

8. I have considered the submissions made by learned

counsel for the parties and in view of the submissions made by

learned counsel for the parties, following issues arise for

consideration:-

(i) Whether the respondents are estopped by their

conduct from raising an objection with regard to

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admissibility of the partition deed/Batwaranama dated

12.09.1990?

(ii) Whether the partition deed/Batwaranama dated

12.09.1990 is a record of the act of the Court and is a

public document within the meaning of Section 74(1)

(iii) of the Act of 1872?

(iii) Whether the partition deed which is unregistered

and unstamped can be looked into for collateral

purposes?

(iv) Whether the Court below was justified in

imposing stamp duty or not?

9. The relevant extract of Section 35 of the Indian

Stamp Act, 1899 (in short 'the Act of 1899') reads as under:-

'35. Instruments not duly stamped inadmissible

in evidence, etc,- No instrument chargeable with

duty shall be admitted in evidence for any purpose by

any person having by law or consent of parties

authority to receive evidence, or shall be acted upon,

registered or authenticated by any such person or by

any public officer, unless such instrument is duly

stamped:

Provided that-

(a) any such instrument shall, be admitted in evidence

on payment of the duty with which the same is

chargeable, or, in the case of any instrument

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insufficiently stamped, of the amount required to make

up such duty, together with a penalty of five rupees,

or, when ten times the amount of the property duty or

deficient portion thereof exceeds five rupees, of a sum

equal to ten times such duty or portion.

Section 36 of the 1899 Act provides that where an

instrument has been admitted in evidence, such admission

shall not, except as provided in Section 61 thereof, be called in

question at any stage of the same suit or proceeding on the

ground that the instrument has not duly been stamped. From

perusal of Section 35 of the Act 1899, it is apparent that it

casts a duty on the Court not to admit in evidence any

document which is not duly stamped. A scrutiny of Section 36

reveals that it bars the objection with regard to admissibility of

a document at any stage of the same suit or proceeding on the

ground that the instrument has not been duly stamped. One of

the essential elements of estoppel by conduct is that party

against whom it is pleaded, should have made some

representation intended to induce a course of conduct by the

party to whom it was made. In the instant case, this essential

element is lacking as document in question was marked as an

exhibit in the absence of respondent. Apart from this, Section

35 of the Act of 1899 casts a duty on the Court not to admit in

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evidence any document which is not duly stamped. Thus, the

contention raised by the learned counsel for the petitioner that

objection to admissibility of the document at the instance of

respondents cannot be entertained on the ground of the

estoppel by conduct, cannot be accepted. Besides that Section

36 of the Indian Stamp Act does not bar such a challenge.

Accordingly, the first issue is answered.

10. Section 74 of the Act of 1872 which deals with the

public document reads as under:

'74. Public documents - The following documents

are public documents;

1) Documents forming the acts, or records of the acts-

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and

executive, of any part of India or of the

Commonwealth, or of a foreign country;

(2) Public records kept in any State of private

documents.'

Perusal of Section 74 reveals that the documents which

are record of the acts of the Court are public documents within

the meaning of Section 74(1)(iii) of the 1872 Act. There is

distinction between the records of the acts of the Court and

record of the Court. A private document does not become

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public document because it is filed in the Court. To be a public

document it should be record of act of the Court. In the instant

case, admittedly, the partition deed was marked as exhibit.

Marking of an exhibit on the document is an act of the Court.

Thus, the partition deed is record of the act of the Court and is

thus a public document within the meaning of Section 74(1)(iii)

of the 1872 Act. Thus, for the aforementioned reasons, it is

held that partition deed dated 12.09.1990 is a public document

within the meaning of Section 74(1)(iii) of the Indian Evidence

Act, 1872. Accordingly, the second issue is answered.

11. I may now advert to the third issue whether the

partition deed which is unregistered and unstamped can be

looked into for collateral purposes. It is well settled in law that

relevancy, admissibility and proof are different aspects which

should exist before a document can be taken into evidence,

mere production of certified copies of public documents does

not prove the same as the question of its admissibility involves

that contents must relate to a fact in issue or a fact relevant

under various sections of Indian Evidence Act. Section 2(14) of

the Act of 1892 defines the expression 'Instrument' which

reads as under:-

'Instrument' includes every document by which any

right or liability is, or purports to be, created,

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transferred, limited, extended, extinguished or

recorded.'

Section 2(15) defines the expression 'Instrument of

partition'. Thus, from perusal of the aforesaid definitions, it is

apparent that an instrument is a document which affects any

right of liability. It follows that documents and instruments are

not synonymous as every document is not an instrument

though every instrument is not a document. Unless the

document affects a right or liability, it cannot be an

instrument. Section 35 of the Act of 1892 provides that no

instrument chargeable with duty shall be admitted in evidence

for any purpose. The partition deed dated 12.09.1990 is an

instrument within the meaning of Section 35 of the Indian

Stamp Act.

12. Section 77 of the Act of 1872 has been enacted to

obviate the production of original public document for

evidentiary purpose. The original public document requires no

proof and under Section 77 of the Act of 1872, the contents of

public document are proved by production of certified copy of

such documents. The Indian Evidence Act does not purport to

deal with the admissibility of documents in evidence which

requires to be stamped under the provisions of Indian Stamp

Act. See : Jupudi Kesava Rao v. Pulavarthi Venkata

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Subbarao, AIR 1971 SC 1070.

Thus, merely because the document in question is a

public document, it is not per se admissible in evidence. It is

required to be stamped under the provisions of Indian Stamp

Act, 1935.

13. The scope and ambit of Section 35 of the Stamp Act

was considered in Ram Rattan v. Parama Nand, AIR 1946

PC 51 wherein it was held as under:

'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

determing even the factum of partition as distinct from

its terms.'

Relying upon the aforesaid, the Hon'ble Supreme Court in

the case of Avinash Kumar Chauhan vs Vijay Krishna

Mishra, (2009) 2 SCC 532 has held that if a document is not

duly stamped, it would not be admissible even for collateral

purpose. So far the reliance placed by learned counsel for the

petitioner on the decision rendred in Roshan Singh and others

(supra) is concerned, a close scrutiny of the decision shows

that the Supreme Court has nowhere held that even if a

document is not duly stamped under Section 34 of the Stamp

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Act, the same could be read for collateral purpose. Thus, the

third issue has to be answered in the negative by holding that

the partition deed dated 12.09.1990 cannot be looked into for

even collateral purposes.

14. Learned Court below has found that relinquishment

was done through the document/Batwaranama. From a perusal

of the document, it is clear that neither the date and time on

which the partition took place between the family members is

mentioned nor it reflects the land which was partitioned

through the document. The document only recited that

members of the family have no objection if name of one

member is mutated in the revenue record. When the

Batwara/partition was done, then why names of other family

members are not to be mutated in the revenue record and why

name of only one member is sought to be mutated in the

revenue record. Therefore, learned Court below is justified in