Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
Doddabasappa vs Gurubasappa (Deceased) By L.Rs. … on 15 September, 2000
Equivalent citations: AIR 2001 Kant 149, 2001 (4) KarLJ 104
Bench: H N Tilhari


ORDER

1. This revision is directed against the order dated 6-6-1998, passed by the I Additional Civil Judge, Senior Division, Bagalkot, on I.A. No. XI, filed in original suit number O.S. 74 of 1995.

By I.A. No. XI, the plaintiff sought the direction against defendants 1, 2 and 4 to 10 to pay the stamp duty and penalty, as provided under Section 34 of the Indian Stamp Act, before its admission and recording of evidence.

2. The objection was filed by the defendants contending that defendants are not enforcing the award, and they are using it as defence. Hence, there is no question of payment of stamp duty, and that the document at least can be admitted for collateral purpose of severance of status of the joint family.

The Trial Court considered the contentions, and held that the document, marked as Ex. D. 20, shows it requires the payment of stamp duty. The document is styled, as decision of the arbitrator, and certain shares had been allotted to the parties and the well, pumpset have been kept in common.

The learned Civil Judge, opined that the document required payment of stamp duty, as an instrument of partition as provided under Article 39 of the Stamp Act. The learned Civil Judge rejected the contentions of defendants, whether they are enforcing the award or relaying it for another purpose, that has got no relevance. That so far as payment of stamp duty is concerned, it opined that it cannot be admitted for any purpose without payment of stamp duty and penalty.

3. Feeling aggrieved from that order, the defendants have come up in revision under Section 115 of the Civil Procedure Code.

I have heard Sri S.B. Hebballi, learned Counsel for the revision petitioner and Sri Krishna Dixit, learned Counsel for the respondents.

4. It has been contended by the learned Counsel for the revision petitioner that the Court below erred in directing the payment of stamp
duty and penalty, and in holding that it should be paid. The learned Counsel further contended that under Section 33, the provision is for examination of the document, as to whether this is properly stamped or not, and then impounding of the same has to be done and this procedure under Section 33, has not been followed, so no penalty could be imposed.

5. Learned Counsel further contended that, document had been marked, as Ex. D. 20, and once it had been marked as exhibit, the Court below could not go into the question of admissibility of the document, in view of Section 35, on the ground that it is insufficiently stamped, and therefore, the order in the present case suffers from irregularity and error of jurisdiction. Learned Counsel further contended that, this document could be admitted for collateral purposes, and even without stamp duty or penalty being paid.

6. Learned Counsel submitted that, so far as document Ex. D. 1 is concerned, it is an award, there is no dispute and the same has not been made rule of the Court. Learned Counsel contended that, it has been filed to show that by virtue of the award, the status of parties has changed. Learned Counsel for the revision petitioner further contended that document can be looked into for collateral purposes, even without payment of stamp duty.

These contentions raised on behalf of the revision petitioner have hotly been contested.

It had been contended that, jurisdiction of this Court under Section 115 of the Civil Procedure Code is limited, and is confined to jurisdictional error, firstly and thereafter, to examine that if the order impugned is allowed to stand, is it going to cause any injustice to the revision petitioner. If it is not shown, then this Court need not interfere. It has further been contended that, Section 34 of the Stamp Act, bars and provides that, a document not duly stamped shall not be admitted in evidence for any purpose, so when the document in question Ex. D. 20, was not properly executed or properly stamped, it could not be looked for collateral purposes, as has been laid down by their Lordships in the case of Ram Rattan v Parmanand. Learned Counsel for the respondents also made reference to the decision of this Court in K. Amarnath v Smt. Puttamma , and contended that the document could not be looked for any purpose, even for collateral purpose, in view of express provision contained in Section 35. He submitted that there may be some difference between Section 49 of the Registration Act, and Section 34, and under Sections 34 and 35 of the Stamp Act the bar is absolute. Learned Counsel further, contended that the document was admitted subject to question of its admissibility being decided, later on as well on question of its being properly stamped or not. So, the aforesaid question had to be decided, no doubt, its decision was postponed, ordinarily and no doubt, it should be decided early, but, it takes time, so, for the sake of convenience, the Court postponed the decision, thereon.

Learned Counsel contended that under Section 34, Court had examined the question: Whether proper stamp fee appear on the document or not, it should be deemed to have been examined and found, and it should be read, as an order passed under Section 33 read with Section 34.

7. I have applied my mind to the contentions made by the learned Counsels for the parties. Before I proceed further, it will be appropriate to make reference to certain provisions of the Act.

8. Section 33 of the Karnataka Stamp Act reads under:

“33. Examination and impounding of instruments.–(1)
Every person having by law or consent of parties authority to receive evidence, and every person-in-charge of a public office, except an officer of police, before whom, any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed:

Provided that.-

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Criminal Procedure Code, 1898;

(b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.

(3) For the purposes of this section, in cases of doubt, the Government may determine-

(a) What offices shall be deemed to be public offices, and

(b) Who shall be deemed to be persons-in-charge of public offices”.

Section 34 of the Karnataka Stamp Act which is analogous to Section 35 of the Central Stamp Act, reads as under:

“34. 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 not being an instrument chargeable with a duty not exceeding fifteen paise only, or a mortgage of crop Article 35(a) of the Schedule chargeable under clauses (a) and (b) of Section 3 with a duty of twenty-five paise shall, subject to all just exceptions, 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 a contract of 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 he duly stamped;

(c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Criminal-Procedure Code, 1898;

(d) 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 Deputy Commissioner as provided by Section 32 or any other provision of this Act and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI”.

A perusal of this section per se reveals that it makes a mandatory provision and puts an obligation on the Court, and it directs in a mandatory manner, that, Court shall not admit any document chargeable with duty, in evidence for any purpose either by the consent of parties, or otherwise, nor that document shall be acted upon unless such document is duly stamped.

9. The expression, for any purpose is very material. Section 35 of the Karnataka Stamp Act provides and reads as under:

“35. Admission of instrument where not to be questioned.–Where an instrument has been admitted in evidence which admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”.

Where an instrument has been admitted in evidence, and such admission shall not, except as otherwise provided under Section 58, be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. Section 58 of the Stamp Act further, provides for decision of the Court regarding sufficiency of the stamp duty being considered, and sub-section (1) of Section 58, is material it has to be quoted as under:

“58. Revision of certain decisions of Courts regarding the sufficiency of stamps.–(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Criminal Procedure Code, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the Deputy Commissioner, take such order into consideration.

(2) If such Court, after such consideration, is of the opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under sub-section
(2), the Court recording the same shall send a copy thereof to the
Deputy Commissioner and, where the instrument to which it
relates has been impounded or is otherwise in the possession of
such Court, shall also send him such instrument.

(4) The Deputy Commissioner may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the stamp law which the Deputy Commissioner considers him to have committed in respect of such instrument”.

A reading of these sections harmoniously makes it clear that, expression ‘has been admitted in evidence’, clearly means that the document should have been admitted after application of mind to the question of sufficiency of stamp duty, and order has to be made in writing. Where there is question of sufficiency or insufficiency of the duty, and then such a document has been admitted after determining the question of sufficiency or insufficiency of the stamp duty paid thereof, then Section 35 prohibits the consideration of that question at any stage of the suit, except as indicated in Section 58, namely, if the Trial Court has admitted a document after direction for payment of additional duty and stamp duty, as penalty, then if appeal is filed from that judgment, then that, question may be raised at the stage of appeal before the Court, to which appeal lies from the judgment. There the party and Deputy Commissioner of Stamps can raise that question, and the Court can also take into consideration that question on its own motion, but during the stage of the suit, the party will be barred. It can also be raised by the Deputy Commissioner, where the Court has held that sufficient stamp duty has been paid, that the decision holding duty paid to be sufficient is wrong.

(emphasis supplied)

10. Here in the present case, the Court below has postponed the determination of question of stamp duty, as to whether it has been paid sufficiently or not. At the time when the document was produced and filed at the stage of evidence on 6-11-1997, no doubt objection was raised, but the Court below postponed it for decision later on. So, it had not decided the question of admissibility of the document for want of stamp duty. At that stage, it had only been taken on record for the purpose of avoiding delay, subject to determination of the question, later on, I mean to say instead of postponing recording of evidence, and cross-examination etc., the Court left this question to be decided later on. May it be an irregularity, may it be for purpose of avoiding any delay in course of recording of evidence and interruption, the Court has done, as that it was alleged to be used for the purpose of cross-examination without determining the question of admissibility. There may be some irregularity, but it did not bar the jurisdiction of the Court to determine that question. When I so observe, I find support from the decision of the Supreme Court in the case of Ram Rattan v Bajrang Lal:

“6. When the document was tendered in evidence by the plaintiff while in witness-box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned Trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of making the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of, it would none the less be obligatory upon the Court to decide the objection. If after applying mind to the rival contentions the Trial Court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be Trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (See Javer Chand v Pukhraj Surana). The endorsement made by the learned Trial Judge that “objection, allowed subject to objection”,
clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted”.

(emphasis supplied)

This decision very clearly shows that a document which has been taken on record subject to objections, clearly indicates that the question of admissibility is to be later” on decided, and the same has not been decided at the stage when it was filed, section makes it obligatory to decide that question.

11. The taking of document subject to objections clearly indicated in the present case as well, that, Court has not applied its mind, and has not determined the question of admissibility of document to attract Section 35 of the Karnataka Stamp Act which is analogous to Section 36 of the Indian Stamp Act. The just above cited decision of their Lordships of the Supreme Court very clearly answers the contentions of the Counsel for the revision petitioners, that, once the document had been taken in evidence, even subject to objection, it was not open to Court to consider that question, and in view of the Supreme Court’s decision this contention of the learned Counsel, really has to be rejected and it is hereby rejected.

Second contention that was raised by the learned Counsel that the document was filed for being considered for collateral purposes, and could be admitted in evidence for collateral purposes, even if it was not duly stamped is wrong.

12. Section 34 of the Act, as has been quoted above, mandates, no document shall be admitted in evidence for any purpose, unless it is duly stamped. Section puts a complete embargo and bar against admissibility of such a document which is not stamped, or which is not duly stamped, and it cannot be made use of for any purpose, it means for all the purposes. When I so, observe, I find support for my view from the decision of their Lordships of the Privy Council in the case of Ram Rattan, supra, where their Lordships observe at page 53, column 3:

“With this latter opinion their Lordships are not in agreement. As already noted, Section 35, Indian Stamp Act, enacts that no instrument chargeable with duty shall be admitted in evidence for any purpose. Mr. Reweastle as part of his argument for the respondent adopted the note on the words “for any purpose” in Section 35 contained in Edition 4, of Sir Dinshah Mulla’s book on the Indian Stamp Act, 1899. He pointed out that the words “for any purpose” first appeared in India in the Stamp Act of 1879, and in England in the Stamp Act of 1891, and that under the earlier Acts there were decisions in both countries that an unstamped document might be admitted in evidence for a collateral purpose, that is, to prove some matter other than the transaction recorded in the instrument, and he submitted that these cases applied even under the later Acts. Their Lordships do not take this view. A
document admitted in proof of some collateral matter is admitted in evidence for that purpose, and the statute enacts that it shall not be admitted in evidence for any purpose. Their Lordships see no reason why the words “for any purpose” in the Indian Act of 1879 should not be given their natural meaning and effect. Such words may well have been inserted by the Legislature in order to get rid of the difficulties surrounding the question of what amounted to a collateral purpose”.

In this view of the matter, the Trial Court was justified in rejecting the contention that document could be admitted for collateral purposes.

(emphasis supplied)

13. Even this Court in the case of K. Amarnath, supra, has expressed the same view, as just above, and in this decision Hon’ble Raveendran, J., considered the distinction between the language used in Sections 34 and 49 of the Registration Act, and opined that under Section 34, bar is absolute and document cannot be admitted for any purpose in evidence.

Section 34 mandates the stamp duty is to be realised with penalty. It cannot be said that the Court has acted beyond jurisdiction, in imposing the penalty. In my opinion, the revision is devoid of merits, and is hereby dismissed.

No costs.


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