Sunday, 13 September 2015

Distinction between collateral purpose and collateral transaction for the purpose of stamp duty

The trial court in the present case has anaylsed the true import of “the provisions of the collateral purpose” with reference to the ratio of the judgement in K.B. Saha & Sons Pvt. Ltd., supra. Admittedly, execution of agreement to sell in favour of the respondent-plaintiff by the defendant-petitioner is accompanied by handing over of possession. If the facts of the present case are examined, the suit being for declaration and injunction and the sole basis thereof being the alleged sale deed, which is neither registered, nor stamped on the strength of which the plaintiff claim that defendants parted with possession and handover the possession thereof to the plaintiff, the production of the said document cannot be said to be for collateral purpose. This is because the re-citation therein with regard to transaction of sale is not an independent of or devisable from the transaction for the purpose of which the document is executed, which is required to be registered. Collateral purpose is the purpose which is independent of or devisable from, purpose for which document was executed and of which the law required registration. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating any right, title or interest in immovable property of the value of one hundred rupees and upwards. Section 35 of the Stamp Act has in this regard advisedly used the words “for any purpose whatsoever”, thus the purpose for which the document is sought to be admitted in evidence in the instant case would be relevant for invoking Section 35.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.  CIVIL WRIT PETITION NO.7418/2012
Mahesh Chand vs. Judicial Officer & Ors.

DATE OF ORDER : :   1st May, 2015

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
Citation; AIR 2015 RAJ141
REPORTABLE

This writ petition has been preferred by plaintiff assailing the order dated 16.2.2012, whereby the Gram Nyayalaya, Gangapur City has declined to accept the sale deed dated 15.7.1992 produced by the petitioner in his suit on the premise that the same is un-registered and un-stamped and, therefore, not admissible. Petitioner filed the suit for declaration and injunction on the basis of the aforesaid sale deed asserting that he purchased plot nos.54, 61, 38 and 76 from Shafi Mohammed, Rais Mohammed, Zamila and Gafoor Mohammed for sale consideration of Rs.15,000 and was simultaneously put in possession of the plots. The defendants-Babu Lal and Pramod Kumar were trying to forcibly dispossess him and take possession of the land of the aforesaid plots so as to start construction thereupon. The defendants contested the suit denying the allegations. The learned trial court framed five Issues. The plaintiff during trial submitted in support of his case filed his affidavit in evidence. When the plaintiff wanted to exhibit the aforesaid sale deed in evidence, objection was raised on behalf of the defendants and the trial court by the impugned order has sustained the objection. Hence this writ petition. 
Shri Kesav Agrawal, learned counsel for the plaintiff-petitioner has submitted that trial court was wholly unjustified in holding the document to be not admissible in evidence. The question as to the admissibility of the document can be decided only at the time of final hearing of the case. The document cannot be refused to be exhibited for the reason that the document in question was unregistered sale deed dated 15.7.1992. Petitioner wanted to produce the same for the collateral purpose in order to prove nature of his possession as disclosed in the plaint. Even if the document is allowed to be exhibited, no prejudice is going to be caused to the defendants. Learned counsel for the petitioner in support of his arguments has relied on judgement of the Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat & Anr.-(2001) 3 SCC 1, LIC of India & Anr. vs. Ram Pal Singh Bisen-2010 (2) Supreme 444, Smt. Ratan Sharma vs. The New India Insurance-2001 WLC (Raj) UC page 343, Jai Narain vs. District Judge & Ors.-2003 (3) CDR 2050 (Raj.) and judgement of this Court in Harish Chandra & Anr. vs. Moti Chand & Ors., S.B. Civil Writ Petition No.1879/1997 decided on 3.12.1997. 
Per contra, Shri Raj Kamal Gaur, learned counsel for the defendants-respondents has supported the impugned order. He has argued that the document in question is described to be a sale deed, whereas no deed with regard to transfer of title, sale of land and transfer of title, which is not registered and not stamped, can be exhibited in evidence. The document is the sole premise of the suit of the plaintiff for declaration and injunction, therefore, this cannot be accepted that this document is being merely produced for collateral purpose. 
Learned counsel for the respondents has argued that the trial court has rightly analysed the law, especially with reference to the judgement of Supreme Court in Indu (Smt.) vs. Narsingh Das & Ors.-2009 DNJ (SC) page 364. It is argued that purpose for which the unregistered sale deed is sought to be produced in evidence cannot in the facts of the present case, be said to collateral purpose. Learned counsel in support of his arguments has relied on the judgement of Supreme Court in K.B. Saha & Sons Pvt. Ltd. vs. Development Consultant Ltd.-CLJ 2008 (4) page 392, the judgement of Supreme Court in Avinash Kumar Chauhan vs. Vijay Krishna Mishra-2009 (3) CT (SC), Smt. Jamna Bai vs. Tulsi Ram-AIR 1997 Rajasthan 85 and Indu (Smt.) vs. Narsingh Das & Ors.-2012 (3) DNJ (Raj.) 1705.
Having heard learned counsel for the parties, I have bestowed my thoughtful consideration to the rival submissions and the material on record.
The question of admissibility of document has of course to be decided in the present case, but on this aspect two fold submissions have been made on behalf of the plaintiff-petitioner. Firstly, that this question should have been decided at the time of final hearing and secondly that document has to be read in evidence and allowed to be exhibited for collateral purposes even when it is neither registered, nor stamped. 
As regards the stage as to when the question of admissibility should be decided, the Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat & Anr.-(2001) 3 SCC 1 has held that it is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence, the court does not proceed further without passing order on such objection. Such practices were realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings and must be recast or remoulded to give way for better substitutes, which would help acceleration of trial proceedings. The Supreme Court, therefore, held that whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case subject to such objections to be decided at the last stage in the final judgement. If the court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration. However, if the objection relates to deficiency of stamp duty of a document, the court has to decide the objection before proceeding further. For all other objections, the procedure suggested above can be followed.  
In Ram Pal Singh Bisen, supra the Supreme Court held that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof. 
In Avinash Kumar Chauhan, supra the Supreme Court dealt with the case where the respondent who was a member of the Scheduled Tribe and intended to transfer a house and land for certain amount fixed by way of consideration towards the said transfer, which was paid to him by the appellant and possession of the said property was also delivered. The respondent being a member of Scheduled Tribe, 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 Central Government Land Revenue Code, 1959, which was applied for, but rejected. The appellant filed suit for recovery of the sale consideration which was paid. In that suit, the agreement which was sought to be registered as a sale deed was relied upon. The trial court impounded the document requiring the plaintiff to pay the stamp duty as also the ten times penalty as per Section 35 of the Stamp Act.  The aforesaid order was challenged before the High Court and the same was upheld. Reliance was placed on proviso to Section 49 of the Indian Registration Act as also on the decision of Bondar Singh vs. Nihal Singh-(2003) 4 SCC 161. In those facts, it was held that unregistered sale deed put up into evidence merely for recovery of money and not for enforcing contract. The applicability of provisos u/s.49 of the Registration Act when the document is not admissible in evidence as per Section 35, it would also not be admissible for collateral purpose. The impounding of the document was held to be justified. 
The coordinate bench of this Court in Indu, supra relied on behalf of defendant-respondents, where the hand written letter on a plain paper was sought to be produced in evidence for collateral purpose and this Court held the same as inadmissible for the reason of its not being properly stamped, nor registered. Same was held in in the case of Smt. Jamna, supra.
The Supreme Court in Omprakash vs. Laxminarayan & Ors.-(2014) 1 SCC 618 after analyzing provisions of Section 35 of the Stamp Act held that when part payment has been made and possession delivered, agreement to sale is a conveyance within the meaning of Section 2(10) of the Act and is required to be duly stamped. If the same is not duly stamped, it is not admissible in evidence. 
The Supreme Court in S.Kaladevi vs. V.R. Somasundaram & Ors.-(2010) 5 SCC 401 held that only in suit for specific performance, sale agreement is not required to be registered and it can be made admissible for collateral purpose, but stamp duty may be required to be paid. The Supreme Court in this case has analyzed effect of proviso to Section 49 and Section 17 of the Registration Act, 1908. 
The Hon’ble Supreme Court in K.B. Saha and Sons (P) Ltd. Vs. Development Consultant Ltd., (2008) 8 SCC 564 has on this aspect of law evolved the following principles in Para 34 of the judgement:
“1.   A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2.    Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3.    A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4.    A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."  

Having noted aforesaid principles of law laid down in K.B. Saha(supra), the Hon’ble Supreme Court in S. Kaladevi(supra) added sixth principle to the line of aforesaid principles that “a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.”
In Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddy, (1999) 7 SCC 114 question before the Hon’ble Supreme Court was whether a decree to enforce the registration of sale deed could be granted.  That was a case where the respondent therein filed a suit for specific performance seeking a direction to register the sale deed.  Contention of the appellant therein was that decree for specific performance based on unregistered sale deed could not be granted.  The Hon’ble Supreme Court in Para 10 and 11 of the judgment(supra) held as under:
“10. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document.  On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy."

"11.......The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property."
The trial court in the present case has anaylsed the true import of “the provisions of the collateral purpose” with reference to the ratio of the judgement in K.B. Saha & Sons Pvt. Ltd., supra. Admittedly, execution of agreement to sell in favour of the respondent-plaintiff by the defendant-petitioner is accompanied by handing over of possession. If the facts of the present case are examined, the suit being for declaration and injunction and the sole basis thereof being the alleged sale deed, which is neither registered, nor stamped on the strength of which the plaintiff claim that defendants parted with possession and handover the possession thereof to the plaintiff, the production of the said document cannot be said to be for collateral purpose. This is because the re-citation therein with regard to transaction of sale is not an independent of or devisable from the transaction for the purpose of which the document is executed, which is required to be registered. Collateral purpose is the purpose which is independent of or devisable from, purpose for which document was executed and of which the law required registration. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating any right, title or interest in immovable property of the value of one hundred rupees and upwards. Section 35 of the Stamp Act has in this regard advisedly used the words “for any purpose whatsoever”, thus the purpose for which the document is sought to be admitted in evidence in the instant case would be relevant for invoking Section 35.
Now since the objection is about the deficiency of the stamp duty has to be essentially decided before proceedings with the mater further, as already held by the Supreme Court in Bipin Shantilal Panchal, supra, this question cannot be deferred to be decided at the stage of final hearing. The trial court cannot be said to have erred in law in deciding the objection at the stage of evidence of plaintiff. 
In view of above analysis of the law, the impugned order cannot be said to suffer from any legal infirmity or error apparent on the face of the record. There being no merit in this writ petition, which is accordingly dismissed with no order as to costs.
   (Mohammad Rafiq),J.

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