What is ‘Impounding’? Who is competent to impound an instrument? Under what circumstances an instrument can be impounded? Whether court in the given case can impound the sale deed which is not duly stamped executed by Kiran in favour of Plaintiff?
Ans: Impounding: ‘seizure’ of the document. A document is said to be impounded when it is ordered by a court or public officer to keep in the custody of office.
Persons competent to Impound and circumstances under which it can be impounded: As per of S.33 of Stamp Act every person having by law or consent of parties authority to receive evidence or in charge of a public office except Criminal court and police officer, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall if it appears that such instruments is not duly stamped, impound the same.
Power of court to impound the sale deed: Yes, this is a civil court in view of S.33 of the Stamp Act it has power to impound the sale deed as same is not duly stamped instrument.
Assume that in the said suit along with plaint, plaintiff filed a petition u/O.39 R/1 &2 CPC seeking the court to grant temporary injunction. On receipt of summons the respondent/defendant appeared and contended that court shall not rely upon unregistered and unstamped documents? Is this contention tenable? Whether court can impound instrument and collect stamp duty along with penalty at the request of petitioner/plaintiff or should it send to the collector.
Ans: a) yes, this is a tenable contention. The respondent-defendant can object for consideration of an unstamped and unregistered sale deed in a petition filed under Order XXXIX Rules 1 and 2 as reliability of such documents is always doubtful. The Court cannot insist the party to pay the deficit stamp duty and penalty on an un-stamped and unregistered sale document in a petition under Order XXXIX Rules 1 and 2. Thus, it is well established that the Court can impound a document only at the state of receiving the said document in evidence as S.35of stamp Act. Since receiving such a document in a petition under Order 39 Rules 1 and of Code of Civil Procedure at the state of hearing and enquiry cannot be equated with the state of receiving the same in evidence, it can only be impounded if the petitioner chooses to do so. However, the Court cannot consider the said document in question even in the petition under Order 39 Rules 1 and 2 of Code of civil procedure unless the requisite Stamp duty is paid.
b) But if the plaintiff wants to pay the deficit stamp duty, the Court cannot object for the same. Plaintiff can ask the public officer or court to collect the deficit duty ten times the original as on the date of its execution. Plaintiff also has an option to seek the court or officer to send it to collector. In such a case collector on determination would collect only deficit fee or actual fee as on the date of execution of document.
Whether unregistered sale deed executed by Kiran in favour of plaintiff can be marked in evidence to prove the sale transaction?
Ans: No, As per S.17 of Registration Act, instruments which create title or interest with respect to immovable property exceeding Rs.100 must be registered. Even transfer of property Act mandates sale of property exceeding Rs.100 must be by way of registration. S.49 of the Registration Act says:.- No document required by section 17 1[ or by any provisions 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:
This is also held in Bandar Singh v Nihal singh 2003(4) SCC161: IN this case it was held that unregistered sale shall not used to prove the sale transaction. Since, in the given case the transaction between Kiran and plaintiff is sale of immovable property, in view of bar contained in S.49, plaintiff can’t mark the unregistered sale deed to prove the sale transaction.
Whether unregistered sale deed executed by Kiran in favour of plaintiff can be marked in evidence for any other purposes? For what other purpose can the plaintiff use the unregistered sale deed in the given case?
Ans: Yes, it can be marked for certain other purposes. They are called as collateral purposes or matters. As per S.49 of registration Act, an unregistered document required to be registered under law may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction or matter or purpose, not required to be effected by registered instrument. Thus, the bar contained in S.49 of Registration Act only bars proving terms of contract of sale but not other aspects which needn’t required to be registered. It is needless to say in a sale deed apart from terms of contract, we find some other facts such as description of parties, recitals and origin of property etc., a sale deed can be marked to look these aspects in the course of trial. The basic proposition of law relating to injunction is that person (settled trespasser) in possession can seek the relief of injunction against any person except the true owner. In the given case as per the plaint allegations, defendant is no manner connected to the suit property as such the sale in question is helpful to show the nature of possession of the plaintiff over the suit land. The sale deed in question at least shows that initial possession of the plaintiff over the suit land was not illegal or unauthorized. It was held in Vide: Bandar Singh and others v. Nihal Singh and other (2003) 4 SCC 1613) that an Unregistered sale deed can be looked into for collateral purpose of knowing the nature and character of the possession of the plaintiff, whether it is adverse or permissive. It can be looked into to establish the jural relationship between the parties and in which capacity he is occupying the property and the nature of the possession. However, if stamp duty is not paid sale deed or any deed is not admissible in evidence even for collateral purpose. In view of the above law plaintiff whose possession is not unauthorized or illegal and only seeking relief of injunction to prevent interference of stranger over suit property can mark the sale deed to show that his occupation over suit property is not unauthorized and illegal.
Assume that unduly stamped and unregistered sale deed executed by plaintiff in favour of Kiran, is marked in evidence. Can it be challenged by defendant at any point of time? What is the purpose of registration? List out any six instruments required to be registered under law of registration.
Ans: S.36 of Stamp Act says once a document has been admitted in evidence, it is not open either to trial court or to a court of appeal to review it. As per S.36 of Stamp Act: Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Bipin Shantilal Panchal v State of Guajarat 2005(4)ALT626: The objection to stamp duty has to be considered before marking in the trial court. Unregistered document even if marked it is excluded from reading as evidence to the extent of conferring right by such unregistered deed (i.e., extent of bar contained in S.49). Such an objection can be taken any stage including before appeal court.
Purpose of registration: To provide method of public registration of documents so as to give information to the people regarding legal rights and obligations arising out of a particular property. Thus, its objective is conservation of evidence, assurance of title, publicity of documents and prevention of fraud.
S.17 of the Act lists document required by law to registration. They are: a)Instruments of gift of immovable property b)Instruments which purport or operate or create, declare, assign, limit or extinguish, whether in present or in future, nay right, title or interest, whether vested or contingent w.r.t immovable property of value exceeding Rs.100/- c)Instruments which acknowledge the receipt or payment of any consideration on account of creation, declaration, assignment, limitation or extinction of any such right, title or interest d) Leases of immovable property e) Instruments transferring or assigning any decree or order or award of a court of any award when such decree or award purports or operate to create, declare, assign, limit or extinguish. F) Any decree or order award passed by civil court on consent of defendants or on circumstances evidence where such decree or order or award purports to create.
Court’s Docket order: The plaintiff submitted the above arguments and as such court overruled these objections and directed the office to number the suit. Further, it directed the office to issue summons and the defendant on receipt of summons filed following written statement.
IN THE COURT OF JR.CIVIL JUDGE, MEDCHAL
AT: MEDCHAL: RANGA REDDY DISTRICT
O.S.no /2011
Between:
Bharath S/o: Late Raghu, ………..Plaintiff
And
Narsimha …..Defendant
WRITTEN STATEMENT :
The defendant respectfully submits as follows:
1. Except those allegations, which are specifically admitted herein, all other allegations in the plaint shall be deemed to have been denied by the defendant, specifically.
2. It is submitted that Plaintiff is not the owner and possessor of suit property as averred in para 2 of the plaint. It is not true to say that Plaintiff purchased suit property from one Shyam by way of unregistered sale deed for an amount of Rs.100000/-(Rupees One lakh) on 10.10.1993. It’s further false to allege that of the sale consideration only an amount of Rs.80,000/-(Rupees Eighty thousand only) is paid at the time of sale and it is agreed that registration would take place upon payment of balance sale consideration. It is also false to state that despite best efforts on part of plaintiff to make payment to his vendor and get it registered it didn’t translate into reality as vendor left the village, fell sick and bed ridden and died later.
3. It is further false to submit that at the time of sale itself, plaintiff is put in possession of the suit property and since then plaintiff is been personally cultivating the suit land without the interruption any person and his name is entered in relevant revenue records as possessor of the suit property. It is submitted that application for regularization of suit land under S.5A of A.P.Pattadhar and Pass Books Act by plaintiff is dismissed by the Mandal revenue officer.
4.It is also false to allege that defendant being a real estate agent conversant and well versed in craft work of knocking away the land of villagers and no manner connected to the suit land except being adjacent land holder made an unjustified interference into the suit land on 20.112011 or on another date so as to grab it. It is also false to allege that plaintiffs with the aid of near and dear successfully prevented unjustified interference on part of the defendant. It is also false to allege that the defendant while leaving the suit land openly declared that he would dispossess the plaintiff at any cost. It is submitted that cause of action is an imaginary and invented one for the purpose of filing the present untenable suit. It lacks bonafides. Hence, suit shall be dismissed with costs.
ISSUES:
1) Whether the plaintiff is in possession of the suit property as on the date of the filing of the suit?
2) Whether there is an unjustified interference on part of the defendant?
3) Whether the plaintiff is entitled to relief? To what relief?