RADHAKISHAN Vs. SHYAMLAL

JUDGEMENT

(1.) Being aggrieved by the order dated 15-4- 2005 passed by IV Civil Judge, Class-II, Ratlam in Civil Suit No. 254-A/04 whereby the objections raised by the respondent about admissibility of the document dated 26-1-1987 in evidence on the ground that the same is unregistered was upheld, present petition has been filed.

(2.) Short facts of the case are that the petitioner filed a suit for mandatory injunction and for possession alleging that the petitioner is owner of the suit property and the respondent was put into the possession of the property on the basis of agreement dated 26-1-1987 whereby possession was given to the respondent in security of loan of L 15,000/- which was taken by the petitioner. It was prayed that the petitioner be put into the possession. The suit was contested by the respondent on various grounds, including on the ground that the document is inadmissible in evidence as the same is unregistered. At the stage of evidence when the document was put in evidence, an objection was raised regarding admissibility of the document. By the impugned order learned Court below held that the document is inadmissible in evidence, against which present petition has been filed.

(3.) Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Courts below is illegal, incorrect and deserves to be set aside. It is submitted that under the orders of the Court the petitioner has already paid the stamp duty with penalty. It is submitted that since the stamp duty has already been paid, therefore, even if the document is unregistered, then too, it ought to have been taken into consideration for collateral purposes. Learned counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009 1 MPJR 113wherein Hon'ble Apex Court has held that an unregistered document may be admitted in evidence but a document which is insufficiently stamped cannot be used even for collateral purposes. It was further alleged that section 33 of Stamp Act casts a duty upon every person who has authority to receive evidence and every person in-charge of a public office before whom the instrument is produced, if it appears to him that the same is not duly stamped, to impound the same. Subsection (2) of section 33 of the Act lays down the procedure for undertaking the process of impounding. Section 35 provides that an instrument shall be inadmissible in evidence if the same is not duly stamped. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court, therefore, was empowered to pass an order in terms of section 35 of the Act. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes. Further reliance is placed on a decision of this Court in the matter of Narendra Prasad Gopilal Soni v. Manju Lata, 2002 1 MPLJ 16wherein this Court held that unregistered mortgage deed is admissible to establish nature and character of possessing of mortgagee. It was further held that the owner of the house cannot lose his title to the house because the document by which he created the mortgage is unregistered. Reliance is also placed on a decision in the matter of Sardar Amar Singh v. Surinder Kaur, 1975 MPLJ 633wherein Full Bench of this Court held that unregistered lease deed can be used to show nature of possession to be that of lessee. Further reliance is placed on a decision in the matter of Munni Sharma v. Mahendra Singh,2010 1 MPJR 9 wherein Divisional Bench of this Court has held that in a case where the document is insufficiently stamped, the Court may sent to Collector of Stamps for determination of stamp duty and penalty. On the strength of aforesaid position of law learned counsel submits that the petition tiled by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.