KULAMANI PRADHAN Vs. GIRIDHARI MOHANTY

JUDGEMENT

(1.) This revision is directed against an order passed by the Munsif, Kendrapara in Title Suit No. 57 of 1984 in which it was held that document in question which purports to be a deed acknowledging an adoption in favour of the plaintiff is not required to be impounded as it is not chargeable to stamp duty.

(2.) DEFENDANTS 4 and 5 in the aforesaid suit are th,e petitioners in this revision. Opp. party No. 1 as the plaintiff filed the aforesaid suit praying for a decree of permanent injunction restraining the defendants from coming upon and interfering with the possession of the plaintiff in respect of Schedule 'Kha' lands and for other consequential reliefs, The plaintiff claims to be an adopted son of one Bairagi Mohanty, 'who has executed the sale deed long after the adoption. It was necessitated as he., (plaintiff's) would be father -in -Law was reluctant to give his daughter in marriage with the plaintiff who had no document in proof of his status as an adopted son. The plaintiff has alleged that defendant -No. 1 is not the wife_ of his adoptive father and as such she had no right, title,' interest or possession in the property left behind by his adoptive father. It is, therefore, contended that defendants 2 to 5, who are purchasers from defendant No. 1 have acquired no valid right, title, interest or possession in respect of the suit property and they should, therefore, be restrained from interfering with the plaintiff's possession. At the stage of hearing of the suit, the aforesaid document in question purporting to be a deed acknowledging adoption was sought to be proved on behalf of the plaintiff and the present petitioners moved the trial Court to call upon the plaintiff to pay stamp duty and impound the same since the instrument is chargeable to stamp duty and unless the same in impounded it is inadmissible in evidence. The learned Munsif after hearing both parties in the impugned order came to a conclusion that the document being merely an acknowledgement of the previous adoption is not chargeable to stamp duty and the question of impounding. the same does not arise. Thus the sole question for determination is whether the document is chargeable to stamp duty.

(3.) A xerox copy of the disputed instrument was produced by the learned counsel for the opp. parties which shows that it purports to be a deed of acknowledgement of adoption which took place in the year 1959. It further recites that Sri Bairagi Mohanty, the 'executant of the document hid no issues, he had adopted the present opp. party No. 1 when he was seven years old on the Sripanchami day of the year 19.% -where - after they have been living together as father and son. It became necessary in connection with the marriage proposal of present opp. party No. 1 to execute a deed of acknowledgement of adoption as there had been no deed of adoption till then. This document was executed on 15 -5 -1973 oh a plain paper. It, therefore, records a previous adoption to be used as authentic evidence of the facts of adoption which makes it chargeable to stamp duty under Art. 3 of the Stamp Act. The learned Court in the impugned order has relied on a decision of this Court reported in AIR 1961 Ori. 41 (Brajamohan Das and Ors. v. Radhamohan Oas and others) and some other decisions in support of his conclusion that mere recording of an act which took place in the past would not attract the requirement of stamp or registration. These decisions are not applicable to the facts of this case as the question for consideration in these cases was as to whet! a document recording a previous partition would require stamp duty or registration. As already pointed out, unlike a deed of adoption a partition can be effected by a deed of partition itself and, thereafter, a document which does not purport to effect partition but merely records a previous partition would not come under the requirement of Stamp Act. Art. 3 of the Stamp Act: deals with an instrument of partition which does not contain the word 'recording' as in the case of an adoption deed. I, therefore, conclude that the document in question is an adoption deed within the meaning of Art. 3 arid is charageble to stamp duty. It, therefore, follows that since it has been drawn up in a plain paper, it is liable to be impounded in order that It would be admissible in evidence.