T RATNA BAI Vs. TAKUR BHARATI BAI

JUDGEMENT

(1.) The Plaintiff is the petitioner. During the trial, when evidence was being recorded the plaintiff wanted to file the partition deed as one of the documents. It was opposed by the defendant as inadmissible in evidence as the partition deed was not stamped in accordance with the provisions of the STAMP ACT, 1899. The learned Judge dealing with the case upheld the objection of the defendant. Against the order, the plaintiff filed a revision in this Court. The said revision was disposed of by my learned brother Madhusudhan Rao J., observing that the document sought to be adduced Is a partition deed which requires to be stamped under the relevant provisions of the STAMP ACT, 1899 and that the same is inadmissible in evidence unless it is properly stamped. It was observed in the revision that if the petitioner wants to adduce the said document in evidence for proof of any collateral transaction, it was open to him to get the document impounded and penalty levied according to the provisions of STAMP ACT, 1899 and than get the same admitted to prove the nature of his possession after the document is admitted for such purpose, on the petitioner paying the stamp duty and penalty that may be imposed by the impounding authority. After the dismissal of the revision, the case was taken up by the trial court. The Petitioner wanted the Court to admit the document but contended that no stamp duty can be levied as the valuation of the properties mentioned In the partition deed is not mentioned in the document and the Court has no power to levy the stamp duty unless the document itself shows the value of the properties. The learned District Munsiff after examining the document found that there is no mention of the valuation of the properties and hence appointed a Commissioner to value the properties in order to levy the stamp duty under the provisions of the STAMP ACT, 1899. It is the validity of this order that is assailed in the present Civil Revision Petition.

(2.) Under Section 33 (1) of the Stamp Act, every person having by law the authority to receive evidence before whom any instrument chargeable with duties is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. A reading of this section makes it abundantly clear that any document which is not stamped comes before a Court which undoubtedly hai the power to receive evidence shall impound the same, if in the opinion of the Court that such a document, was not duly stamped. In the present case, there cannot be any contraversy that the partition deed was chargeable with duty and that it was not stamped, as the matter was already considered once by this Court which held that the very same instrument is chargeable with duty. It is also not in controversy that the partition deed was on a plain paper with no stamp duty paid on it. Under Section 35 no instrument shaii be admitted in evidence unless such instrument is duly stamped and penalty levied is paid. Section 38 obligates the Court to send an authenticated copy of the instrument together with the certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in that behalf. In all other cases, the impounding authority shall send the instrument in original to the Collector. Sec. 39 deals with the procedure to be adopted by Collector after the receipt of the authenticated copy of the instrument along with the amount of duty and penalty paid under Sec.38 (1) The Collector, may order refund of any portion of the penalty if he thinks that the penalty levied is excessive. Section 40 deals with the powers of the Collector to impound documents under section 33 or the documents sent to him under the provisions of Section 38 (2). After following the procedure contemplated under Section 40 and levying the stamp duty and penalty under Clause (3) of Section 40 the Collector shall send back the document to the impounding Officer.

(3.) A reading of Sections S3, 35 and 88 makes it abundantly clear that if an unstamped document which ought to have been stamped under the provisions of the STAMP ACT, 1899 comes before the Court, the Court shall impound the same and levy the stamp duty together with penalty. The Court will have to necessarily ascertain tha value of the properties mentioned in the document and that can only be done in the light of the evidence on record. Since, in the present case the partition deed des not mention the value of the properties, the Court appointed a Commissioner to value tha properties and submit his report. I do not find that the procedure adopted by the learned District Munsif is in any way contrary to the provisions of the STAMP ACT, 1899 or the provisions of the Civil Procedure Code. It is not necessary in every case that the document is silent with regard to tha stamp, it must be necessarily sent to the assessing authorty. The power of the impounding authority to levy stamp duty includes the power to ascertain the value of the property for determining the stamp that is due to be paid on the instrument and ne cf the methods by which the value can be ascertained Is appointing a Commissioner for valuing the same. Of course the report submitted by the Commissioner is subject to the provisions of the Civil Procedure Code under which it is open to the parties to file their objections and it is ultimately for the Court to accept the report of the Commissioner or not. I cannot agree with the learned Counsel for the petitioner that in every case where the document which is to be stamped does not mention the value of the properties it must necessarily be sent to the authorities constituted under the STAMP ACT, 1899 for the purpose of assessing the value of the property.