Avinash Kumar Chauhan
Vs. Vijay Krishna Mishra [2008] INSC 2194 (17 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7350 OF 2008 (Arising
out of SLP (C) No. 8651 of 2007) Avinash Kumar Chauhan ....
Appellant Versus
Vijay Krishna Mishra .... Respondent
S.B. SINHA, J.
1.
Leave
granted.
2.
Interpretation
of Sections 33 and 35 of the Indian Stamp Act 1899 (for short `the Act') calls
for our consideration in this appeal which arises out of a judgment and order
dated 27th February, 2007 passed by a learned Single Judge of the High Court of
Chattisgarh at Bilaspur dismissing a petition filed by the appellant herein
under Article 227 of the Constitution of India against the orders dated 14th
November, 2006 and 9th January, 2007 passed in Civil Suit No.1-B/2006 by the
Additional District Judge, Gariaband, Raipur.
3.
The
undisputed fact of the matter is that the respondent herein, who is said to be
a member of the Scheduled Tribe intended to transfer a house and land
admeasuring 10150 sq. ft. situated at Village Gariyaband, District Raipur. A
sum of Rs.2,70,000/- fixed by way of consideration towards the aforementioned
transfer was paid to the respondent by the appellant.
Possession of the
said property had also been delivered.
4.
Indisputably
for the purpose of effecting transfer of the said land, permission of the
Collector was required to be obtained in terms of Section 165 (6) of the C.G.
Land Revenue Code, 1959, which was applied for but rejected.
5.
Appellant
herein filed a suit for recovery of Rs.2,70,000/-. In support of his case, the
agreement dated 4th August, 2003 which was sought to be registered as a
sale-deed has been relied upon.
The same was directed
to be impounded by an order dated 9th January, 2007, stating :- " Under
the Section 35(a) of the Stamp Act there is a provision that for any such
instrument or bill of exchange or promissory note, subject to all just
exceptions, will be admitted in evidence on payment of the duty with which the
same is chargeable or, in the case of an instrument insufficiently stamped, of
the amount required to make up such duty, together with a penalty of five
rupees, or, when ten times the amount of the proper duty or deficient portion
thereof exceeds five rupees, of a sum equal to ten times such duty or portion.
In the matter the
agreement of sell produced is valued Rs.2,70,000/- which as per Article 23 of
Indian Stamp Act and as per Schedule 5, on the said amount stamp duty of 5.6%
is leviable and the 7.5% of Rs.2,70,000/- comes to Rs.20,250/-. In the
agreement to sell Rs.60/- is mentioned as stamp which means reducing the
Rs.20,250 - Rs.60 = Rs.20,190 is less stamp duty paid, 10 times penalty of
which will be leviable as per Section 35 of the Stamp Act means Rs.201900/- stamp
duty will be leviable. In this regard relevant case law is `Kapur Constructions
vs. Lita Nagraj and Ors.,' AIR 2005 Karnataka 032. The plaintiff 3 has paid
Rs.20,850/- in the C.C.D. so the rest of the amount of Rs.181050 be deposited
within the next date of hearing and the Opposite Party shall also file its
counter reply by the next date of hearing."
6.
As
noticed hereinbefore the High Court by reason of the impugned judgment refused
to interfere with the said order.
7.
Mr.
A.K. Bajpai, learned counsel appearing on behalf of the appellant would submit
that having regard to the fact that the said unregistered deed of sale was
sought to be put in evidence not for the purpose of enforcement of the contract
but only for the purpose of recovery of the amount of consideration, which
indisputably has been paid to the respondent and such a purpose, it was urged,
being a collateral one, the provisions of Sections 33 and 35 of the Act shall
not be attracted.
Reliance in this
behalf has been placed on the proviso appended to Section 49 of the Indian
Registration Act as also on the decision of this Court in Bondar Singh v. Nihal
Singh, [ (2003) 4 SCC 161 ],
8.
Mr.
Suhail Dutt, learned counsel appearing on behalf of the respondent, on the
other hand, would support the impugned judgment.
9.
The
Act was enacted to consolidate and amend the law relating to Stamps.
"Conveyance"
has been defined in Section 2(10) to mean :- " "conveyance"
includes a conveyance on sale and every instrument by which property, whether
moveable or immoveable, is transferred inter vivos and which is not otherwise
specifically provided for by Schedule I ;"
"Receipt"
has been defined in section 2(23) of the Act to mean :- "
"receipt" includes any note, memorandum or writing- (a) whereby any
money, or any bill of exchange, cheque or promissory note is acknowledged to
have been received, or (b) whereby any other moveable property is acknowledged
to have been received in satisfaction of a debt, or (c) whereby any debt or
demand, or any part of a debt or demand, is acknowledged to have been 5
satisfied or discharged, or (d) which signifies or imports any such
acknowledgement ;
and whether the same
is or is not signed with the name of any person."
"Stamp" has
been defined in Section 2(26) to mean :- " "Stamp" means any
mark, seal or endorsement by any agency or person duly authorised by the State
Government, and includes an adhesive or impressed stamp, for the purposes of
duty chargeable under this Act."
10.
Chapter
II of the Act provides for stamp-duties.
Section 3, which is
the charging Section reads as under :- "3. Instruments chargeable with
duty. - Subject to the provisions of this Act and the exemptions contained in
Schedule I, the following instruments shall be chargeable with duty of the
amount indicated in that Schedule as the proper duty therefor, respectively,
that is to say- (a) every instrument mentioned in that Schedule which, not
having been previously 6 executed by any person, is executed in India on or
after the first day of July, 1899;
(b) every bill of
exchange payable otherwise than on demand or promissory note drawn or made out
of India on or after that day and accepted or paid, or resented for acceptance
or payment, or endorsed, transferred or otherwise negotiated, in India; and (c)
every instrument (other than a bill of exchange or promissory note) mentioned
in that Schedule, which, not having been previously executed by any person, is
executed out of India on or after that day, relates to any property situate, or
to any matter or thing done or to be done, in 8 [India] and is received in
India.
Provided that no duty
shall be chargeable in respect of- (1) any instrument executed by, or on behalf
of, or in favour of, the Government incases where, but for this exemption, the
Government would be liable to pay the duty chargeable in respect of such
instrument;
(2) any instrument
for the sale, transfer or other disposition, either absolutely or byway of
mortgage or otherwise, of any ship or vessel, or any part, interest, share or
property of or in any ship or vessel registered under the Merchant Shipping Act
1894, or under Act 19 of 1838, or the Indian Registration of Ships Act, 1841,
as amended by subsequent Acts.
7 (3) any instrument
executed ,by, or , on behalf of, or, in favour of, the Developer , or Unit or
in connection with the carrying out of purposes of the Special Economic Zone,
Explanation- For the purposes of this clause, the expressions
"Developer", "Special Economic Zone" and "Unit"
shall have meanings respectively assigned to them in clause(g), (za) and (zc)
of Section 2 of the Special Economic Zones Act, 2005."
The other provisions
contained in the said chapter deal with the mode and manner of payment etc.
Chapter III of the
Act provides for adjudication with regard to proper stamps; whereas Chapter IV
deals with instruments not duly stamped.
Section 33 casts a
duty upon every person who has authority to receive evidence and every person
incharge 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.
Sub-section (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 in the following terms :- "35 - Instruments not duly stamped
inadmissible in evidence, etc.
No instrument
chargeable with duty shall be admitted in evidence for any purpose by any
person having by law or consent of parties authority to receive evidence, or
shall be acted upon, registered or authenticated by any such person or by any
public officer, unless such instrument is duly stamped :
Provided that-- (a)
any such instrument shall be admitted in evidence on payment of the duty with
which the same is chargeable, or, in the case of an instrument insufficiently
stamped, of the amount required to make up such duty, together with a penalty
of five rupees, or, when ten times the amount of the proper duty or deficient
portion thereof exceeds five rupees, of a sum equal to ten times such duty or
portion ;
(b)where any person
from whom a stamped receipt could have been demanded, has given an unstamped
receipt and such receipt, if stamped, would be admissible in evidence against
him, then such receipt shall be admitted in evidence against him on payment of
a penalty of one rupee by the person tendering it;
(c)where a contract
or agreement of any kind is effected by correspondence consisting of two or
more letters and any one of the letters bears the proper stamp, the contract or
agreement shall be deemed to be duly stamped;
(d)nothing herein
contained shall prevent the admission of any instrument in evidence in any 9
proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter
XXXVI of the Code of Criminal Procedure 1898;
(e)nothing herein
contained shall prevent the admission of any instrument in any Court when such
instrument has been executed by or on behalf of the Government or where it
bears the certificate of the Collector as provided by section 32 or any other
provision of this Act."
11.
Section
36 of the Act provides that where an instrument has been admitted in evidence,
such admission shall not, except as provided in Section 21 thereof, be called
in question at any stage of same suit or proceeding on the ground that the
instrument has not been duly stamped.
Section 38 provides
for the mode and manner in which the instrument impounded is to be dealt with.
12.
The
Parliament has, in Section 35 of the Act, advisedly used the words "for
any purpose whatsoever". Thus, the purpose for which a document is sought
to be admitted in evidence or the extent thereof would not be a relevant factor
for not invoking the aforementioned provisions.
13.
The
land in the instant case is situated in a Scheduled Area.
Execution of a deed
of conveyance in respect of the land situated in the scheduled area is
statutorily barred. All transactions can be affected only upon obtaining the
permission of the collector in terms of the provisions of Section 165 (6) of
the C.G. Land Revenue Code, 1959. We are, however, not concerned with the said
provisions.
14.
Indisputably
an instrument was executed. By reason of such an instrument not only the entire
amount of consideration was paid but possession of the property had also been
transferred.
Explanation appended
to Article 23 of Schedule IA of the Stamp Act as substituted by M.P. Act No. 19
of 1989 reads as under :- "Explanation.- For the purpose of this Article,
where in the case of agreement to sell immovable property, the possession of
any immovable property is transferred to the purchaser before execution after
execution of such agreement without executing the conveyance in respect
thereof, then such agreement to sell shall be deemed to be a conveyance and
stamp duty thereon shall be leviable accordingly:
Provided that the
provisions of section 47A shall apply mutatis mutandis to such agreement which
11 is deemed to be a conveyance as aforesaid, as they apply to a conveyance
under that section:
Provided further that
where subsequently a conveyance is effected in pursuance of such agreement of
sale, the stamp duty, if any, already paid and recovered on the agreement of
sale, which is deemed to be a conveyance shall be adjusted towards the total
duty leviable on the conveyance subject to a minimum of Rs.10."
15.
The
said explanation has been inserted by M.P. Act 19 of 1989 with effect from 15th
November, 1989. By reason of the said provision, thus, a legal fiction has been
created. Although ordinarily an agreement to sell would not be subject to
payment of stamp duty which is payable on a sale deed, but having regard to the
purpose and object it seeks to achieve the legislature thought it necessary to
levy stamp duty on an instrument whereby possession has been transferred.
The validity of the
said provision is not in question.
16.
It
is not in dispute that the possession of the property had been delivered in
favour of the appellant. He has, thus, been exercising some right in or over
the land in question. We are not concerned with the enforcement of the said
agreement. Although the same was not registered, but registration of the
document has nothing to do with the validity thereof as provided for under the
provisions of the Indian Registration Act, 1908.
17.
We
have noticed heretobefore that Section 33 of the Act casts a statutory
obligation on all the authorities to impound a document. The court being an
authority to receive a document in evidence is bound to give effect thereto.
18.
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.
19.
The
contention of learned counsel for the appellant that the document was
admissible for collateral purpose, in our opinion, is not correct. In Bondar
Singh (supra) this Court was not concerned with the provisions of the Act. Only
interpretation of the provisions of the Registration Act, 1908 was in question.
It was opined :- " The main question, as we have already noted, is the
question of continuous possession of 13 the plaintiffs over the suit lands.
The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour
of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted
document in the sense its execution is not in dispute. The only defence set up
against the said document is that it is unstamped and unregistered and
therefore it cannot convey title to the land in favour of the plaintiffs. Under
the law a sale deed is required to be properly stamped and registered before it
can convey title to the vendee. However, legal position is clear law that a
document like the sale deed in the present case, even though not admissible in
evidence, can be looked into for collateral purposes. In the present case the
collateral purpose to be seen is the nature of possession of the plaintiffs
over the suit land. The sale deed in question at least shows that initial
possession of the plaintiffs over the suit land was not illegal or
unauthorized..."
In this case, by
reason of the statutory interdict, no transfer at all is permissible. Even
transfer of possession is also not permissible. [See Pandey Oraon v. Ram Chander
Sahu 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati
and Others (2004) 10 SCC 65]
20.
The
Registration Act, 1908 provides for such a contingency in terms of the proviso
appended to Section 49 thereof, which reads as under :- "49. Effect of
non-registration of documents required to be registered.- 14 No document
required by section 17 or by any provision of the Transfer of Property Act,
1882 (4 of 1882), to be registered shall-- (a) affect any immovable property
comprised therein, or (b) confer any power to adopt, or (c) be received as
evidence of any transaction affecting such property or conferring such power,
unless it has been registered:
Provided that an
unregistered document affecting immovable property and required by this Act or
the Transfer of Property Act, 1882 (4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any
collateral transaction not required to be effected by registered
instrument."
21.
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 15 fail to see any reason as
to how the document would be admissible for collateral purposes.
22.
The
view we have taken finds support from the decision of the Privy Council in Ram
Rattan v. Parmananad, [AIR 1946 PC 51] wherein it was held :- "That the
words `for any purpose' in Section 35 of the Stamp Act should be given their
natural meaning and effect and would include a collateral purpose and that an
unstamped partition deed cannot be used to corroborate the oral evidence for
the purpose of determining even the factum of partition as distinct from its
terms."
The said decision has
been followed in a large number of decisions by the said Court. In
Bhaskarabhotla Padmanabhaiah and others v. B. Lakshminarayana and others [ AIR
1962 A.P. 132 ], it has been held :- "9. In this case, the learned
Subordinate Judge has observed that what the plaintiff was trying to prove was
not the division in status but to show that the property was divided under the
partition deed. In any case, the fact that the document is inadmissible due to
want of being stamped is clear. For, in Ram Rattan v. Parmanand, AIR 1946 PC
51, their Lordships of the Privy Council 16 held that the words `for any purpose'
in S. 35 of the Stamp Act should be given their natural meaning and effect and
would include a collateral purpose and that an unstamped partition deed cannot
be used to corroborate the oral evidence for the purpose of determining even
the factum of partition as distinct from its terms."
It was furthermore
held :- "10. In the result, I agree with the learned Munsif-Magistrate
that the document is `an instrument of partition' under Sec. 2(15) of the
Indian Stamp Act and it is not admissible in evidence because it is not
stamped. But, I further held that if the document becomes duly stamped, then it
would be admissible to evidence to prove the division in status but not the
terms of the partition."
In Sanjeeva Reddi v.
Johanputra Reddi, [ AIR 1972 A.P. 373 ], it has been held :- "9. While
considering the scope of Section 35 of the Indian Stamp Act we cannot bring in
the effect of non-registration of a document under Section 49 of the Indian
Registration Act. Section 17 of the Indian Registration Act deals with
documents, the registration of which is compulsory and Section 49 is concerned
only with the effect of such non-registration of the documents which require to
be registered by Section 17 or by any provision of the Transfer of Property
Act. The effect of non-registration is that such a document shall not affect
any immovable property covered by it or confer any power to adopt and it cannot
be received as evidence of any transaction affecting such property or
conferring such power. But there is no prohibition under Section 49 to receive
such a document which requires registration to be used for a collateral purpose
i.e. for an entirely different and independent matter. There is a total and
absolute bar as to the admission of an unstamped instrument whatever be the
nature of the purpose or however foreign or independent the purpose may be for
which it is sought to be used, unless there is compliance with the requirements
of the provisos to Section 35. In other words if an unstamped instrument is
admitted for a collateral purposes. It would amount to receiving such a
document in evidence for a purpose which Section 35 prohibits. There is nothing
in the case of B. Rangaiah v. B. Rangaswamy, (1970) 2 Andh WR 181 which
supports the contention of the petitioner. That was a case as pointed out by
Kuppuswami, J., where there were two instruments though contained in one
document one a settlement in favour of the 4th defendant therein and the other
a will. It was therefore held that part of the instrument which constitutes a
will did not require any stamp and will be admissible in evidence for proving
the bequest contained therein. It was for that reason that the learned Judge
said that Sec. 35 of the Stamp Act has no application to a case where one of
the separate instruments relating to one such matters would not at all be
chargeable under the Act as in the case before him."
18 In T. Bhaskar Rao
v. T. Gabriel and others, [ AIR 1981 A.P. 175 ], it has been held :- "5.
Section 35 of the Stamp Act mandates that an instrument chargeable with duty
should be stamped so as to make it admissible in evidence.
Proviso A to Section
35 of the Stamp Act enables a document to be received in evidence on payment of
stamp duty and penalty if the document is chargeable, but not stamped or on
payment of deficit duty and penalty, if it is insufficiently stamped. The bar
against the admissibility of an instrument which is chargeable with stamp duty
and is not stamped is of course absolute whatever be the nature of the purpose,
be it for main or collateral purpose, unless the requirements of proviso (A) to
Section 35 are complied with. It follows that if the requirements of proviso
(A) to Section 35 are satisfied, then the document which is chargeable with
duty, but not stamped, can be received in evidence."
It was further held
:- "7. It is now well settled that there is no prohibition under Section
49 of the Registration Act, to receive an unregistered document in evidence for
collateral purpose. But the document so tendered should be duly stamped or
should 19 comply with the requirements of Section 35 of the Stamp Act, if not
stamped, as a document cannot be received in evidence even for collateral
purpose unless it is duly stamped or duty and penalty are paid under Section 35
of the Stamp Act."
(See also Firm Chuni
Lal Tukki Mal v. Firm Mukat Lal Ram Chanda and others, [ AIR 1965 All. 164 ]
and Chandra Sekhar Misra v. Gobinda Chandra Das, [ AIR 1966 Ori. 18 ] ).
23.
For
the reasons aforementioned, there is no merit in this appeal which fails and is
dismissed. However, in the facts and circumstances of the case, there shall be
no order as to costs.
.............................J.
[ S.B. Sinha ]
.............................J.
Back
Pages: 1 2 3
