Judgment:
ORDER
Shivashankar Bhat, J.
1. In the course of an eviction petition filed under Section 21(1)(a) of the Karnataka Rent Control Act, 1961 (for short, 'the Act'), which was filed by the petitioner, against the respondent, he sought to mark two documents in support of his claim that he had right to the property, which he leased to the respondent, one of the documents was an alleged deed of usufructuary mortgage, under which the original owner had supposed to have mortgaged the premises in favour of the petitioner, with possession. The other document is allegedly a lease deed for eleven months under which, respondent is stated to have taken the premises on lease from the petitioner, the mortgagee. Both these documents were neither registered, nor properly stamped; hence the trial Court refused to receive them in evidence.
2. The learned Counsel for the petitioner contended that, earlier, the premises in question was mortgaged to the petitioner by way of deposit of title deeds, and it had been properly registered; thereafter as an additional security, the same was usufructuarily mortgaged; therefore, the deed did not require registration. For this purpose, the learned Counsel relied on a Decision of this Court in NARAYANA RAO, M.S. v. M.S. SHIVANNA, 1988(2) KLJ 330 In the said case, there was an unregistered agreement to partition the family property, resulting in the execution of a registered partition deed subsequently. Therefore, this Court held, non-registration of the agreement, would not come in the way of proving the said agreement to prove the date on which the family stood divided in status. I fail to understand as to how the said Decision would help the petitioner's case, in the instant case, there was registered mortgage by way of deposit of title deeds. Thereafter another mortgage of the same property was effected, by way of giving possession to the mortgagee and this second mortgage was an usufructuary mortgage, it is a distinct and different transfer of the interest in favour of the mortgagee, from the earlier mortgage by way of deposit of title deeds. The nature of interest created by usufructuary mortgage is quite different from the interest created by the earlier transaction. The rights flowing out of the two transactions are different, though the consideration for the transactions in both cases was the same. The deed of usufructuary mortgage, to be legally effective required to be compulsorily registered. In fact, mortgage by deposit of title deeds is not required to be registered under the law, and this regard other kinds of mortgages are treated differently.
3. The observations made in MURUGHARAJENDRA CO. v. CHIEF CONTROLLING REVENUE AUTHORITY and Ors., 1974(1) KLJ 177 (KB) is again under a different context. Title deeds had already been deposited with the mortgagee towards an earlier loan. A further loan was obtained by the mortgagor on the security of the same title deeds deposited earlier with the creditor. It was held by the Full Bench, that the mere acknowledgment by both the parties that the same title deeds would be held as security for the additional sum does not require to be stamped under the Karnataka Stamp Act, because, under the circumstances of the said case, the subsequent letter was not intended by the mortgagees to be the sole repository of the terms of the equitable mortgage and it was only a letter containing an acknowledgment of an already concluded equitable mortgage; this second letter was not an instrument by which any right or liability was created in respect of an immovable property.
4. In MALKAJAPPA v. C. AYAMMA and ANR., 1964(1) Mys.L.J. 299 a document purporting to be a mortgage was produced in evidence; but it was not duly stamped, Narayana Pai, J. (as he then was) held that, a document which was not registered is not chargeable to stamp duty as a mortgage; to be a mortgage, (other than deposit of title deeds), registration is compulsory. It was held:
'If one is to be guided only by the language of the document, it may perhaps be possible to say that some security was intended to be given under the document. But, for the purpose of the Stamp Act, a mortgage deed should be a document under which one person transfers or creates to or in favour of another person a right over in respect of specified property for the purpose of securing money advance, or to be advanced by way of loan, or an existing or future debt, or the performance of an agreement. The essence of the definition is that the document should effect a transfer.'
In Crompton Engineering Company (Madras) Ltd., v. Chief Controlling Authority, Madras ( : AIR1953Mad764 FB) a Full Bench of the Madras High Court taking the same view as stated above of the definition of mortgage deed contained in section 2(17) of the Madras Stamp Act, has pointed out that if the document is neither attested nor registered it cannot operate as a transfer by way of mortgage and that such an event the mere fact that the text of the document reads like a mortgage does not attract liability for payment of stamp duty as a mortgage deed.'Consequently, the deed in question was held to be not a mortgage deed and as such did not require to be stamped as such.
5. This Decision helps the petitioner to some extent. The alleged usufructuary deed produced by him cannot be taken as a deed of mortgage; but just as an ordinary document To what extent, its recitals could be of use to prove the legal position of the petitioner, in respect of the premises in question is a different matter. The document, execution of which is properly proved, may go in aid of the petitioner's case that he had obtained possession of the premises earlier. Therefore, this document dated 18-6-1988 will have to be permitted to be marked in evidence, without treating it as a deed of mortgage.
6. The petitioner sought to mark another deed dated 20-6-1988, terms of which clearly indicate that it is a lease deed for 11 months, under which, the premises was purported to have been leased to the respondent on a monthly rent of Rs. 3,000/-. The terms of this deed are quite clear and unequivocal. It is not possible to read it as a mere agreement to lease. Admittedly it is not stamped as a lease for 11 months. The learned Counsel for the petitioner, contended that the said deed can be looked into for collateral purpose and could be relied upon to show the nature of the respondent's possession of the premises. The principle relied upon by the learned Counsel, is actually based on the proviso to Section 49 of Registration Act, according to which, a registerable document, if not registered, may be received in evidence of any collateral transaction not required to be effected by registered instrument.
7. Here, we are concerned with Section 34 of the Karnataka Stamp Act under which instruments not duly stamped are not admissible in evidence for any purpose. There is no exception similar to the proviso to Section 49 of the Registration Act. On this aspect of the question, the authoritative Decision of the Privy Council in RAM RATTAN v. PARMA NAND is quite clear. Section 35 of the Indian Stamp Act is similar to Section 34 of the Karnataka Stamp Act. The Privy Council 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. Where an unstamped document is admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the statute has prohibited. Consequently an unstamped partition deed cannot be used to corroborate the oral evidence for the purposes of determining even the factum of partition as distinct from its terms. There is no scope to induct an exception for collateral purposes, under Section 34 of the Stamp Act.
8. In the circumstances, it is clear that the order of the trial Court in respect of the document dated 20-8-88 purporting to be a lease deed, has to be held as not duly stamped.
9. The Stamp Act, essentially is a fiscal legislation and its object is to collect revenue. It is a taxing statute. No equity governs its interpretation, unless there is ambiguity in the language employed by it.
10. Proviso (a) to Section 34 of the Karnataka Stamp Act, however, provides for a procedure to pay the stamp duty and the prescribed penalty, if a party requires the document to be admitted in evidence. That procedure is still available to the petitioner.
In the result, this petition is partly allowed, to the extent of reversing the order of the trial Court regarding the document dated 18-8-1988 which may be admitted in evidence without treating it as a deed of mortgage.It is ordered accordingly.