Telangana High Court

N.Ashok Kumar, vs E.Laxma Reddylachi Reddy, on 19 September, 2022

Bench: A.Santhosh Reddy

     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

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.

2015 (6) ALD 617

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

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

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