Rajasthan High Court
Dulli Ram And Ors vs Ghasia And Ors on 28 May, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1013/2011
1. Dulli Ram S/o Dev Chand
2. Ram Swaroop S/o Mulli Ram
3. Niranjan S/o Mulli Ram
4. Sarbati W/o Ram Lal,
All B/c Mali, Panchna Colony, Karauli
5. Tursa W/o Roop Chand B/c Mali, Pancha Colony, Karauli
----Defendants / Petitioners
Versus
1. Ghasida S/o Kisna, B/c Koli, Karauli, Tehsil and Distt.
Karauli
..Plaintiff / Non Petitioner
2. Roopa Bai W/o Kalyan B/c Mali, R/o Agola, Tehsil And
District Karauli.
3. The Tehsildar Land Holder and Sub Registrar, Tehsil And
Distt. Karauli
4. Additional District And Session Judge (F.T.) No. 1, Karauli
5. Katori W/o Prabhu B/c Mali, R/o Agola, Karauli, Tehsil And
Distt. Karauli
----Proforma Respondents
For Petitioner(s) : Mr. JP Gupta, Advocate
For Respondent(s) : Mr. Hari Krishna Sharma, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Date of Order :: 28/05/2021
This writ petition has been filed by the defendants-
petitioners (for short, 'the defendants') against the order dated
16.11.2010 passed by the Trial Court, whereby it dismissed the
application filed by the defendants under Sections 33, 36 of the
Stamp Act, 1998 (for short, 'the Act of 1998') Section 17 (f) of the
Registration Act, 1908 (for short, 'the Act of 1908') and Order 14
(2 of 6) [CW-1013/2011]
Rule 2 CPC and the agreement to sell dated 6.1.2005 has been
admitted in evidence for collateral purpose.
Facts of the case are that the respondent-plaintiff (for
short, 'the plaintiff') filed a suit for specific performance of the
agreement to sell dated 6.1.2005 and permanent injunction
against the defendants. The defendants filed the written
statement and raised a specific objection that the purported
agreement being unregistered and unstamped, was inadmissible
in evidence. Issues were framed. Thereafter the defendants filed
an application under Sections 33, 36 of the Act of 1998, Section
17 (f) of the Act of 1908 and Order 14 Rule 2 CPC with the prayer
that issue no. 6 already framed, be decided as a preliminary issue,
which has been dismissed by the trial court vide order dated
16.11.2010. Hence, this writ petition.
Learned counsel for the defendants submits that the
purported agreement to sell dated 6.1.2005 is forged and
fabricated. The defendants neither executed any agreement in
favour of the plaintiff nor possession was given to him nor sale
consideration was received by them. He further submits that the
purported agreement to sell dated 6.1.2005 being unregistered
was inadmissible in evidence in terms of the provisions of Section
17/49 of the Act of 1908 and being insufficiently stamped was
required to be impounded and sent to Collector (Stamps) for
determination and payment of the stamp duty and penalty
thereon in terms of the provisions of the Act of 1998. He further
submits that in the purported agreement to sell dated 6.1.2005,
sale consideration of Rs. 1,51,000/- was mentioned and in view of
clause (bb) of Sr. No. 5 of Schedule appended to the Act of 1998,
3% of the total consideration of the property, as set forth in the
(3 of 6) [CW-1013/2011]
agreement, which comes to Rs. 4530/-, was payable. Since the
purported agreement to sell dated 6.1.2005 was alleged to have
been executed on a stamp paper of Rs. 100/-, therefore, stamp
duty of Rs. 4430/- alongwith penalty thereon was required to be
paid by the plaintiff. In support of his contentions, he has placed
reliance on the following judgments:
i) Avinash Kumar Chauhan Versus Vijay Krishna
Mishra reported in (2009) 2 Supreme Court Cases
ii) Prembai Versus Khurshid Bano & Ors. reported in
2014 (3) WLC (Raj.) 221
iii) Om Prakash & Ors. Versus Madan Lal & Ors.
(S.B. Civil Writ Petition No. 7815/2016;
decided on 26.7.2017)
On the other hand, learned counsel for the plaintiff
submits that sale consideration of Rs. 1,51,000/- was received by
the defendants and possession of the land in question was given
to the plaintiff. He further submits that the suit was filed for
specific performance of the contract and the agreement to sell
dated 6.1.2005 could have been admitted in evidence for
collateral purposes. He further submits that clause (bb) of Sr. No.
5 of the Schedule relates to purpose of sale of an immovable
property, when possession is neither given nor agreed to be given.
In the instant case, possession of the land in question was given
to the plaintiff. Thus, clause (bb) would not attract in this case.
Contrarily, clause (c) of Sr. No. 5 of the Schedule appended to the
Act of 1998 shall apply, which provides that if not otherwise
provided for (where possession is given), one hundred rupees
(4 of 6) [CW-1013/2011]
shall be the proper stamp duty. In this way, the agreement to sell
dated 6.1.2005 was rightly executed on Rs. 100/- stamp paper.
Heard. Considered.
The main issue to be decided is whether an
unregistered and unduly stamped agreement could have been
admitted in evidence in a suit for specific performance?
It is an admitted fact that the agreement in question
was unregistered. It has also been alleged by the defendants that
the agreement was not duly stamped.
This Court thinks that the controversy has a complete
solution in the bare reading of the provisions of Section 49 of the
Act of 1908 and Sections 37 and 39 of the Act of 1998.
Proviso to Section 49 of the Act of 1908 provides that
an unregistered document affecting immovable property and
required by this Act (Registration 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 performance under
Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as
evidence of any collateral transaction not required to be effected
by registered instrument.
Since the suit in which the agreement in question is
sought to be admitted as an evidence is a suit for specific
performance, the agreement despite its being unregistered was
admissible in evidence.
Section 39 of the Act of 1998 provides that no
instrument chargeable with duty under this Act 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
(5 of 6) [CW-1013/2011]
public officer, unless such instrument is duly stamped. Provisos to
said Section do not exempt any agreement of the kind which is
under consideration herein from the general provisions of the said
Section. Therefore, an an agreement which had been disputed on
the ground that it was not properly stamped or was under-
stamped, could not have been received in evidence or acted upon,
until proper stamp duty had been determined in respect thereof.
Where the stamp duty payable on a document is disputed, proper
course is to impound such document under sub-section (1) of
Section 37 of the Act of 1998 and make a reference to the
Collector (Stamps) under sub-section (4) thereof for
determination of proper stamp duty and to receive such document
in evidence only after it has been certified by the Collector
(Stamp) under Section 44 or Section 46, as duly stamped.
In view of the above, the order of the learned court
below cannot be sustained to the extent to which it purports to
admit the agreement in question in evidence without adjudication
of proper stamp duty payable thereon. Therefore, the order of the
learned Court below is set-aside to that extent and the learned
court below is directed to deal with the agreement in accordance
with the provision of Section 37 of the Act of 1998 and refer it to
the Collector (Stamps) for determination of proper stamp duty and
endorsement as per the provisions of Section 44 or 46 thereof.
Since, the provisions of law applicable to the
controversy in hand are very much clear and provide a complete
solution, I do not propose to go into the case law submitted by the
parties.
The writ petition is disposed of in the above terms. No
order as to costs.
(6 of 6) [CW-1013/2011]
Consequent upon the disposal of the writ petition, the
stay application and all pending applications, if any, also stand
disposed of accordingly.
(PRAKASH GUPTA), J.
DK
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