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TMI Blog2013 (10) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... rument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence. If in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility - Decided in favour of Appellant. - Civil Appeal No. 9032 of 2013 @Special Leave Petition (C) No. 20721 of 2008) - - - Dated:- 7-10-2013 - Chandramauli Kr. Prasad And Kurian Joseph,JJ. JUDGMENT Chandramauli Kr. Prasad, J. Plaintiffs filed a suit for specific performance of contract, possession and permanent injunction in respect of un-irrigated land having an area of 0.506 hectares bearing Survey No. 16012 in Village Arniapitha situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the sale agreement the cost of the land is mentioned as Rs.1,40,000 and its 7 per cent comes to Rs. 10,500/-. Therefore, it is concluded that the sale agreement can be admissible in evidence only on being on stamp of Rs. 10,500/-. Therefore, it is concluded that the sale agreement is not properly stamped, therefore, not admissible in evidence. Thus, objection of defendant No. 1 is allowed sale agreement dated 27.12.2000 is refused to be admitted in evidence. If the plaintiff wants to produce the said documents in evidence then he may make proper application under Section 35 of the Stamp Act on the next date. Plaintiffs challenged the aforesaid order before the High Court in a writ petition filed under Article 227 of the Constitution of India, inter alia, contending that when defendants themselves have asserted that possession of the property was not delivered, the recital in agreement is of no consequence. It was also pointed out that plaintiffs themselves have claimed relief of possession, which obviously means that they are not in possession and when this fact is taken into consideration, the view taken by the trial court appears to be erroneous. The High Court by its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act and is duly stamped. As stated earlier, the plaintiffs filed a suit for specific performance of contract and their case is founded on the agreement to sell executed on 27th December, 2000. The agreement to sell acknowledges payment of the part of consideration money and further giving actual physical possession to the purchaser by the seller. Though the defendants dispute that, but in our opinion, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of admissibility it is the terms and conditions incorporated therein which shall hold the field. Having said that, we proceed to consider as to whether the document in question is conveyance within the meaning of Section 2(10) of the Act. Section 2(10) of the Act reads as follows: 2. Definitions. -In this Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible in evidence, the relevant portion whereof reads as follows: 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; xxx xxx xxx. From a plain reading of the aforesaid provision, it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy. 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra). We respectfully agree with the conclusion of the High Court in this regard. In view of what we have observed above, the order of the High Court is unsustainable and cannot be allowed to stand. In the result, the appeal is allowed, the impugned order of the High Court is set aside and that of the trial court is restored but without any ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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