NIHAL SINGH Vs. SINGH RAM

JUDGEMENT

(1.) THIS revison petition has been filed by the plaintiff against the order of the learned District Judge Churu dated August 28, 1987 by which an unstamped and unregistered document, paper No. 36-C 2/3, has been admitted in the evidence on the ground that it can be used for collaterial purpose. The facts of the case giving rise to this revision petition may be summarised thus.

(2.) THE plaintiff petitioner filed a suit against the defendant non petitioners for the specific performance of an agreement for sale and in the alternative, for refund of Rs. 23,000/- with interest. THE defendants admitted in their written-statements that they were indebted to the plaintiff and had executed an agreement. THEir defence, is that they had repaid the substantial part of the loan by mortgaging their 25 bighas of land with Phula Ram Beniwal DW. 3 for Rs. 10,000/- & by selling their house to Tekchand for Rs. 7,000/ -. On 1. 3. 85 Phularam D. W. 3 was produced by the defendants. During his statement, his original Bahi containing the entry regarding the said transaction of mortgage of agriculture land was tendered and its photo-stat copy, Paper No. C. 36/2-3 was filed. When it was being exhibited , objection was raised by the learned counsel for the plaintiff that it could not be exhibited for want of registration and requisite stamp. THE learned District Judge directed the defendant to move an application, defered the statement of the witness and put "p. W. 3/ex. A-l" on the said photo stat copy. THE same day, the learned counsel for the defendants moved application," paper No. B-37 Praying that the said photo stat copy be exhibited and admitted in evidence. THE plaintiff filed his reply, paper No. B 38. /1&2, seriously opposing it. After hearing the learned counsel for the parties, the learned District Judge Churu allowed the application by his order dated 28. 8 87, holding that the document can be admitted in evidence for the collateral purpose, i. e. , to show that the loan was taken by the defendants from Phoola Ram D. W. 3 to pay to the plaintiff.

(3.) THE-disputed document, paper No. 36c/2-3 is the photo stat copy of the original entry contained in the Bahi Khata of phoola Ram D. W. 3 According to it, the defendants mortgaged their land with him for Rs. 10,000/- for making payment to the plaintiff, Admittedly the original entry is neither stamped nor registered. It is not the case of the defendant non-petitioners that it is exempted from the payment of stamp duty or registration. It is not necess-ary to determine the exact nature of this document. Suffice it to say here that it does require some stamp duty. Section 35, Stamp Act provides that no instrument chargeable with duty shall be admissible in evidence for any purpose. It does not say that such a instrument can be admitted in evidence for a collateral purpose. THE learned counsel for the defendant-non-petitioners has not been able to cite any ruling in support of his contention that a document chargeable with stamp duty and not stamped can be used for a collateral purpose. THE learned trial court has relied upon AIR 1959 Madras 764. In AIR 1959 Madras part ends at page 560. THE learned trial court has held that the portion of unstamped document requiring no stamp duty can be read in evidence and has relied upon AIR 1959 Rajasthan 15. It may be mentioned here that question regarding the admissibility of a document for want of registration was involved in it and it was held that un-registered document can be used for collateral purposes provided under Sec. 49 Registration Act. THE words "for any purpose" appearing in Sec. 35 Stamp Act were construed by the Allahabad High Court in Mst. Bibo V. Rai Sahib Gokaran, (1) as undebtedly implying for each and every purpose whatsoever without any exception and it matters little whether the purpose is the main purpose or an a collateral It is thus clear that the learned trial court has acted illeaglly in the exercise of its jurisdiction in holding that no stamp duty is payable on the said entry of the Bahi of Phoola Ram D. W. 3, in allowing the defendants' application paper No. B-37, and admitting the photo stat copy paper No, 36c/2-3. If the order dated 28. 8 87 is not set aside, the plaintiff would suffer an irreparable injury.