GHOUSHIA BEE Vs. RAJAN BEE

JUDGEMENT

(1.) The petitioner herein is the plaintiff in a suit filed for permanent injunction and for a declaration that the plaintiff is the absolute owner of the suit property and for recovery of possession. After the trial commenced, a document styled as 'receipt' was sought to be marked through P.W.1. The receipt is dt.24-3-1972. The document was purportedly executed by one Smt. V. Rukmabai, wife of late Sri V. Venkatanarasimha Rao, the original owner of the property. The document recites that the plaintiff's father-in-law purchased the suit property and out of the sale consideration, a sum of Rs.800/- was paid earlier. It is further stated that the balance amount due upto date was paid by the plaintiff's husband. The balance amout paid, according to the plaintiff, is Rs.400/-. It is delcared in the said document that absolute rights have been made over in and over the site and house from 'today' arid that the vendor or her heirs will have no rights whatsoever. An objection was taken to the admissibility of the said document on the ground that it is hit by Sec.49 read with Sec.l7(l)(c) of the Registration Act and Section 35 of the Stamp Act. It is also contended by the defendant-respondent that the document in question is a fabricated one. The lower Court upheld the objection raised on behalf of the defendant and held that the document was not admissible in evidence and it cannot be looked into even for a collateral purpose. Thus, the learned District Munsif declined to mark the document in evidence. Against this order passed by the Principal District Munsif, the present C.R.P. is filed.

(2.) The learned Counsel for the petitioner submits that the approach of the lower Court is wrong and that there could be no legal objection for admitting the document inasmuch as the petitioner can rely upon the same for the collateral purpose of proving the possession and enjoyment of the land pursuant to the agreement.

(3.) No doubt, as observed by the lower Court, the sum and substance of the document is to convey title over the property i.e., immovable property - house and site. The first portion of the document recites the receipt of the sale consideration and the second portion purports to declare and convey the title. Section 35 of the Stamp Act places an absolute embargo against reception of such unstamped document. The lower Court is right in observing that it cannot be looked into even for a collateral purpose. At the same time, if the petitioner so desires, he can request the Court to admit the same in evidence on payment of stamp duty and penalty as contemplated by the first proviso to Section 35 of the Stamp Act. As and when it is duly stamped and the requisite penalty leviable thereon is paid, the bar under Section 35 of the Stamp Act will not stand in the way of the petitioner. However, the learned Counsel for the respondent Mr. Veerabhadrayya contends that the amount of sale consideration is not indicated either in the document or in the plaint and, therefore, it is incapable of being subjected to stamp duty and penalty as contemplated by the proviso under Section 35 of the Indian Stamp Act. The learned Counsel for the respondent, therefore, submits that the defect cannot be remedied and the document cannot be admitted in evidence for any purpose. The objection raised by the learned Counsel for the respondent in this regard is not without force. So long as the amount of sale consideration is not ascertianable from the document and the pleadings, the question of applying the proviso does not arise however, I do not think that the obstacle which stands in the way of petitioner is insuperable. Even now it is open to the petitioner to specify the total sale consideration by amending the plaint and / or by filing an affidavit. If such step is taken by the petitioner, the lower Court will collect the stamp duty and penalty according to the provisions of the Stamp Act and admit the same in evidence. However, if the lower Court feels that the consideration is understated solely with a view to reduce the liability of stamp duty, it may reject the request of the petitioner. When once it is admitted in evidence, it can only be looked into for a collateral purpose of proving that certain amount was paid to the vendor in connection with the sale of the particular property by the father-in-law and husband of the plaintiff.