Judgment:
P.K. Jaiswal, J.
1. This first appeal has been filed by the defendant against the judgment and decree dated 07-04-2000 passed by First Additional District Judge, Baitul in Civil Suit No. 71-A/1998, whereby the trial Court decreed the suit for specific performance of contract and permanent injunction, filed by the plaintiff/respondent.
2. Brief facts of the case are that the respondent/plaintiff filed a suit for specific performance of contract and permanent injunction on the ground that he entered into an agreement on 14-06-1997 (Ex.P/1) with the appellant for sale of an area of 1.619 hectare plus 'Aa' portion of the well and way out of total area of 2.428 hectare of survey No. 266/1, Patwari Halka No. 52 of Village Jamathi of Tahsil Bhenshdehi District Baitul for a consideration of Rs. 2 lakh. An agreement was reduced in writing on a stamp paper of Rs. 50/-. At the time of execution of the agreement entire sale consideration of Rs. 2 lakh was paid to the appellant. It is also alleged that at the time of execution of agreement appellant/defendant intimated that he had entered into an agreement for the purchase of a Tractor and in case he failed to pay the amount, said agreement will come to an end, therefore, he is in need of money. Hence, he entered into an agreement with the respondent.
3. As per the agreement possession of the suit land was handed over to the respondent and since then he is in possession of the land in question. It is also alleged that the appellant immediately after receipt of Rs. 2 lakh from the respondent purchased a Tractor bearing registration No. MTR 3414. As per terms of the agreement, a sale deed has to be executed by November, 1997. Respondent/plaintiff number of times requested the appellant to execute a sale deed, but he gave assurance that land is already in possession of the respondent and at any time he will execute the sale deed. When he failed to execute the sale deed, plaintiff/respondent alongwith one Radheshyam Patel, Sarpanch of village Hidli had gone to the appellant's place and requested to execute the sale deed, but no sale deed was executed. Thereafter, respondent vide registered notice dated 29-111997 (Ex.P/4) asked the appellant to execute a sale deed within a period of fifteen days from the date of receipt of notice, failing which he will take appropriate legal action in accordance with law. On 29-7-1998 again a notice was issued to the appellant vide Ex.P/6. Thereafter, on 5.10.1998 a dispute arose between the appellant and respondent in respect of possession of the suit land, respondent lodged the report at police station Aathner on 5-10-1998 vide Ex.P/7. Matter was amicably settled between the parties and a compromise was reduced in writing vide Ex.P/10 on 11-101998 in presence of three attesting witnesses by which appellant admitted that he will not dispossess the respondent from the suit land. The appellant gave his reply to the second notice vide Ex.P/11 on 10-8-1998, denying all the allegations made in the notice. The suit was filed on 25-8-1998 .
4. The appellant/defendant filed its written statement on 16-8-1999 and denied the averments made in the plaint. In para 4 of the written statement it is contended that respondent/plaintiff had taken the land on lease @ 10,000/-per annum and executed an agreement (Thekanama) and possession was also delivered to him, but in lieu of said agreement he prepared an agreement for sale dated 14-6-1997 and fraudulently took the signature on the agreement. It is also denied that appellant/defendant executed any agreement for purchase of Tractor bearing No. MTR-3414. Appellant denied the receipt of Rs. 2 Lakh from respondent. In para 19 it is alleged that the suit property which is part of survey No. 266/1, situated at village Jamthi is jointly owned by the appellant and is undivided Hindu Family property. Family of the defendant consisting of his wife, sons and daughters and they all are having share over the suit property and present appellant had no right to execute an agreement for sale nor there was any legal necessity in the defendant's family to execute an agreement for sale. It is also averred that appellant/defendant is illiterate person. The suit property is ancestral property of the appellant and he is not sole owner and therefore, he cannot execute an agreement for sale.
5. The trial Court after appreciating the oral and documentary evidence came to the conclusion that respondent/purchaser had paid entire consideration of this suit land and got possession and a notice was issued by the purchaser to execute a registered sale deed within specific time from the service of notice, therefore, it shows that purchaser was always ready and willing to perform the contract. After marshalling the evidence on record, the learned Trial Court held that plaintiff was always ready and willing to perform his part of the contract, the respondent/plaintiff proved his case for grant of decree of specific performance of contract, decreed the suit of the plaintiff by impugned judgment and decree dated 7-4-2009 and directed the appellant to execute a sale deed within a period of three months from the date of judgment, failing which a sale deed will be executed through Court. Learned trial Court also granted a decree for permanent injunction, restraining the appellant from interfering with the possession of the respondent over the suit property.
6. Learned Counsel for the appellant challenged the impugned judgment and decree on the ground that the suit property belonged to joint Hindu family in which persons other than vendor (appellant-defendant) had also interest as co-parceners, appellant/defendant had no right to enter into an agreement for sale of the joint Hindu family property and also on the ground that agreement was reduced in writing on 14-6-1997 on a stamp paper of Rs. 50/-. As per the terms of the agreement possession was delivered to the respondent, but no stamp duty was paid on the consideration of Rs. 2 Lakh and by reason of provisions of Section 35 of the Stamps Act, 1899 (in short 'Stamp Act') the learned Court below committed an error in admitting the document in evidence and granting a decree in favour of the respondent No. 1.
7. Learned Counsel for the appellant further contended that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose, which will include a collateral purpose
8. On the other hand learned Counsel for the respondent No. 1 contended that when an unstamped document has been marked as an exhibit and admitted in evidence under the signature of the Court, it cannot be said that document has been inadvertently admitted. He further submitted that once a document has been admitted in evidence, it is not open to a Court of appeal to go behind the order, where the document in question was marked exhibit without objection as to its admissibility on the ground that the instrument was not duly stamped had not been judicially determined. He lastly submitted that where the trial Court once admitted the document in evidence and allowed the parties to examine and cross examine, the question of admissibility of the said document under Section 35 of the Stamp Act become unjustifiable in view of Section 36 of the Stamp Act and the objection raised by the appellant is not tenable nor it is opened to the opposite party to subsequently raised an objection that the document was insufficiently stamped, learned trial Court has not committed any legal error in decreeing the suit of the plaintiff and prayed for dismissal of this appeal.
9. I have heard the learned Counsel for the parties at length and perused the record.
10. The appellant in para 19 of the written statement has contended that the suit property is an ancestral and Hindu undivided family property consisting of his wife, sons and daughters and he had no right to execute an agreement dated 14-7-1997. The respondent-plaintiff in para 2 of the paint has pleaded that the suit property is owned by defendant No. 1 and is his separate and self acquired property. In written statement this fact has not been denied by the appellant. In para 2 of the written statement appellant denied the execution of the agreement. No issue of this question was framed nor appellant filed any application for framing the additional issue before the trial Court. Appellant in reply to the notice (Ex.P/2) has nowhere stated that suit land is ancestral property or the same belongs to Hindu undivided family.
11. Ramdayal (PW-1) in para 2 of his statement has deposed that the discussion of purchase of land was held in the house of the defendant and at the time of discussion wife of the defendant, his both sons namely Heeragiri and Bhagatgir and both daughters were present. Defendant and his sons agreed for sale of land at the rate of Rs. 50,000/-per acre. Ram Dayal (PW-1) in para 41 of his statement has deposed that when it was specifically asked whether the suit property is joint Hindu family property, he gave reply to the said question by answering that the land belongs to family.
12. From the above, in absence of any documentary evidence, it cannot be said that the suit property is joint Hindu family property of the defendant. Defendant No. 1 Champatgiri Goswami in para 1 of his statement has deposed that he is having 34-35 acres of land at village Jamthi. This witness in para 14 of his cross examination admitted that he executed a document with the plaintiff. At the time of execution of document Ramdayal, Munga and Puranlal were present. In para 16 this witness has further admitted that the agreement was prepared by a document writer Joshi Ji, at his residence and at that time Munga and Puranlal were also present. In para 17 this witness further admitted that Joshi Ji told him to sign the document and therefore, he signed the document. At the time of putting the signature Munga and Puranlal were present. This witness denied the presence of Ratanlal and Champatgiri. In para 20 he admitted his signature on Ex.P/8. This witness in para 21 of his cross examination further admitted that after execution of the document Ex.P/1 respondent/plaintiff had taken possession of the 4 acres of the land which is the subject matter of the suit and since then he is cultivating the same. In para 22 this witness further admitted that the adjoining to the agricultural field, land of Ratangiri, who is his brother, is situated. This witness further admitted that he used to take agricultural field on lease. In para 27 this witness denied the Khasra number of his land, but he admitted that the disputed suit land is part of 17 acres and 49 decimal. He further admitted that out of 17.49 Acres, appellant is in possession of 4 -1/2 acres of land. He admitted that towards southern side of disputed land, rest of his agricultural land is situated. Appellant in Para 37 of his cross examination admitted his signature on ExP/ 12, the compromise filed before the Police Station. This witness further admitted the purchase of the stamps paper and stated that he and Ramdayal purchased the stamps from Bhensdehi. In para 47, defendant No. 1 further admitted the possession of the plaintiff over the suit land and admitted that in respect of rest of the area he is cultivating the same. The statement of appellant runs in 15 pages and in the whole statement he has not deposed that the suit land is joint Hindu family property or his ancestral property. No Khasra Panchshala has been filed to prove the jointness of the suit property. There is no evidence to hold that land in question belonged to joint Hindu family.
13. Joint family or co-parcenery property is that in which every coparcener has a joint interest and a joint possession. A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the co-parcenary not even his male issue, acquire any interest by birth. He may sell it to any person he likes. It is now well settled that a father who is joint with his sons may sell his self acquired property, even though such property may be immovable. In the present case, no other co-parcener or members of joint Hindu family have been examined before the trial Court to prove that the suit property was joint Hindu Family property or belonged to them. Nor appellant filed any revenue record to prove the same.
14. From the above, in absence of any revenue record , contention of the learned Counsel for the appellant that the suit property was joint Hindu family property can not be accepted. The finding recorded by the trial Court that the suit land is exclusively owned by the appellant is correct and in absence of any oral and documentary evidence, no interference is warranted nor it can be said that the suit land is joint Hindu family property of the appellant..
15. It was an argument that there was no conscious admission of the document by the Court. It was mechanically produced and it was mechanically marked as exhibit. The learned Judge of trial Court during the course of recording of evidence formally admitted the same. The law is quite clear on the point. When an unstamped document has been marked in evidence as an exhibit and admitted under the signature of the Court, it cannot be said that the document has been inadvertently admitted. Once a document has been marked as exhibit in a case and used by the parties in examination and cross-examination of the witnesses., then Section 36 of the Stamps Act comes into operation and it cannot be excluded. This question was considered by the Full Bench of this Court in the case of Balkrishna Bihari Lal v. Board of Revenue M.P. and Ors. : AIR1970MP74 and held that admissibility of document cannot subsequently be challenged in the same suit on the ground of its being not duly stamped, only remedy is opened under Section 61 of the Stamps Act. Para 11 is relevant which reads as under:
The scheme of the Act is abundantly clear:
(i) Once an instrument chargeable with duty is tendered in a civil Court, it shall impound it, if, after examining it, the Court is of the opinion that it is not duly stamped: Section 33 of the Act. The Court has, however power under Section 35 of the Act to admit it (barring certain instruments) in evidence on payment of duty with which the instrument is chargeable, or the amount required to make up the deficiency, together with a penalty, limits of which are prescribed in the section. There is no third course open to the Court, once it finds that an instrument tendered in evidence is not duly stamped. The next step, which the Court has then to take, is provided in Section 38. If the Court has admitted in evidence an instrument upon payment of penalty and/or duty, it shall send to the Collector an authentic copy of such instrument together with a certificate stating the amuont of duty and penalty levied in respect of that instrument, and shall send such amount to the Collector. This is provided in Sub-section (1) of Section 38.
(ii) Then Sub-section (2) of Section 38 enacts thus:
In every other case, the person so impounding an instrument shall send it in original to the Collector.This sub section, therefore, clearly refers to a case where an instrument has been impounded under Section 33 of the Act but has not been admitted in evidence on payment of penalty and/ or duty. The Collector has then to follow the procedure as specified in Sections 39 and 40 of the Act, according as the instrument is sent to him by the civil Court under Sub-section (1) or Sub-section (2) respectively of Section 38.
(iii) But when the Civil Court is of the opinion that an instrument is duly stamped, it does not impound it under Section 33 of the Act but admits it in evidence.
(iv) In a case where an instrument is tendered and the Civil Court just admits it in evidence, without its being questioned on the ground that it is not duly stamped, such validity cannot, by virtue of Section 36 of the Act, be subsequently questioned at any stage of the same suit or proceeding on the ground that it is not duly stamped.
The only course then open is the one provided in Section 61 of the Act. Under that section it is the Court, to which appeals lie from, or references are made by, the Court which admitted the instrument in evidence, which may, on its own motion or on the application of the Collector, take into consideration the order of the subordinate Court admitting the instrument in evidence. And, if such (appeal or reference) Court is of the opinion that such instrument should not have been admitted in evidence without payment of duty and penalty under Section 35, or that higher duty and penalty should have been paid, such Court may order the instrument to be produced and may impound it when produced. Such Court shall then send the instrument, alongwith its declaration, to the Collector.
16. In the case of Ram Rattan (dead) by legal representatives v. Bajrang Lal and Ors. : [1978]3SCR963 , when the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registrations, it is obligatory upon the trail Judge to apply his mind to the objection raised and to decide the objection in accordance with law. The Apex Court has held that instrument not duly stamped admissible in evidence subject to objection, it is obligatory to trial Court to apply his mind to the objection raised and to decide it in accordance with law. It was held in para 6 as follows:
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 or for want of registration, it is obligatory upon the trail Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometime is to postpone the decision to interruption in the process of recording evidence and, therefore, a very convenient device is restored to, of marking 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 nonethe- less be obligatory upon the Court to decide the objection.
In the present case, it is not in dispute that at the time of admission of ExP/ 1 dated 14-06-1997, no objection of any kind was raised by the appellant. Document was duly admitted in evidence and before the trial Court marked as exhibit in the case and no objection was raised by the appellant, therefore, decision of the Apex Court in the case of Ram Rattan (dead) by legal representatives (supra) will not be applicable in the present facts and circumstances of the case and the appellant will not get any help from the said decision.
17. Learned Counsel for the appellant drew my attention to the decision of learned Single Judge of M.P. High Court in the case of Sheikh Akbar and Anr. v. Sameer Kumar Paul and Anr. : 1997(2)MPLJ27 , wherein the trial Court had not applied its mind to the objection regarding stamp duty under Section 35 of the Stamp Act raised and has not decided the objection and subsequently, it was held that the document was registered document and therefore, the question of deciding the question whether it is a lease deed or a sale deed did not arise. It has been held by this Court that the trial court has not decided the objection raised by the counsel for the appellant. It has wrongly been held that merely because the document is registered, the objection regarding payment of stamp duty need not to be decided. This Court set aside the impugned order and directed that the trial Court shall consider the admissibility of lease deed in question afresh in accordance with the provisions of the Stamp Act, after hearing the parties and after applying its mind to the document in accordance with law.
18. The Supreme Court in the case of Javer Chand v. Pukhraj Surana : [1962]2SCR333 has held thus-
where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the parties challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court 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.
Here in the present case, at the time of admission of the document no objection was raised by the appellant and, therefore, trial Court exhibited the document, hence, the decision of this Court in the case of Sheikh Akbar and another (supra) will not be applicable.
19. As per Section 36 of the Indian Stamp Act, 1899 once a document is admitted in evidence, it is not permissible to the court whether it is a Court of Appeal or trial Court to reject it on the ground that it has not been duly stamped. Here, in the present case, agreement to sale (Ex.P/1) has been marked as an exhibit in a case and used by the parties in examination and cross-examination of the witnesses then Section 36 of the Stamps Act comes into operation and it can not be excluded. When an unstamped document has been marked as an exhibit and admitted in evidence under the signature of the Court, it can not be said that the document has been inadvertently admitted. At the time of admission of Ex-P/1 no objection was raised by the appellant in the trial Court regarding admissibility of the document, its admissibility can not be questioned at any subsequent stage of proceeding or before the appellate Court. Section 36 of the Indian Stamp Act is quite rigorous in its application and when a document has been admitted in evidence, it can even form the foundation for the decision in the suit and no Court either original, revisional or appellate can call into question of admissibility of the document on the ground of it being unstamped or nor duly stamped.
20. In the present case, it is also to bear in mind that the instrument Ex-P/1 was laid in and after examining the witnesses as to its execution, learned Judge gave its judgment acting upon it. It must be held to be admission in execution within the meaning of Section 36 and admission can not be questioned in appeal. Here, the trial Court admitted the document in evidence and allowed the parties to examine and cross- examine, the question of admissibility of the said document under Section 35 of the Act becomes unjustifiable in view of Section 36 of the Stamp Act. Admission of the document can not be challenged in the appeal nor it can be said that there was no application of judicial mind to the admission of the document.
21. This question was also considered by Indore Bench of M.P. High Court in the case of Babulal v. Mohammad Sharif and Ors. 1996 MPLJ 461. This Court held that the document admitted by the trial Court had been acted upon while pronouncing the judgment and passing the decree in consequence of that admission of document cannot be challenged in Second Appeal. The documents have rightly been admitted by the trial Court. Para 7,8 and 11 are relevant which reads as under:
7. By the order of the trial Court the said document has been admitted in evidence. Therefore, in view of provisions of Section 167 of Evidence Act now improper admission or rejection of this evidence shall not be ground of itself for a new trial or reversal of any decision in any case. If it appears to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received it could not to have varied the decision.
8. By using the provisions of proviso (e) to Section 35 Stamp Act, the trial Court has admitted this document Ex-P/2-A and that has been acted upon while pronouncing the judgment and passing the decree in consequence of that. In view of provisions of Section 36, now that act can not be challenged, except considering provisions of Section 61 of the Stamp Act. Keeping in view the provisions of Section 61 of Stamp Act, Section 167 of Evidence Act and the admissions of original defendant No. 1 in the written statement, as mentioned above, I do not find that the admission of this document should be permitted to be challenged in this appeal and the admission of that document Ex-P/2-A would be in any way varying the decision in the suit.
11. Thus, the appeal fails and stands dismissed with costs. Counsel's fee Rs. 300/-. The trial Court is directed to make enquiry for the purpose of assessing the amount of penalty and stamp fee which the respondents has to spay to the Government. That enquiry be completed by the trial Court within a month and thereafter fifteen days' time be granted to the respondents for making necessary compliance of the order which would be passed by the trial Court. The respondents to appear before the trial Court on 20-121995 at 11:30 AM.
22. Learned Counsel for the appellant lastly drew my attention to the decision of learned Single Judge in the case of Narbada Prasad Agrawal v. Tarun Bhawsar 2009 (1) M.P.L.J. 176, wherein it has been held that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose, which will include a collateral purpose.
23. The respondent in whose favour agreement for sale is written is already in possession of the property and he has performed his part of the contract. The necessary conditions for application under Section 53-A of Transfer of Property Act are fulfilled then in spite of defect of registration in the deed, the appellant-transferor shall be debarred from enforcing against the transferee any right in respect of the suit property of which the transferee is in possession. Under Section 17 of the Indian Registration Act, it is only a contract of final sale that requires to be registered. A contract to sell does not require to be registered. An unregistered document can be treated as evidence of part performance of a contract for the purpose of Section 53-A of T.P. Act. The effect of non-registration has no impact on the validity of the agreement, relationship between the parties and maintainability of the suit. The respondent has paid the full consideration and enjoying the possession from 1977 and was always ready and willing to perform his part of contract, is also entitled to protection under Section 53 of the T.P.Act.
24. For the above mentioned reasons, in view of provision of Section 61 of Stamp Act, Section 167 of Evidence Act, the admissions made by the appellant in the written statement and no objection was raised before the trial Court and once the document was exhibited and admitted in evidence, the same can not be questioned in this first appeal by reason of provisions of Section 36 of the Stamp Act, 1899 and the admission of that document Ex.-P/1 would in any way vary the decision in the suit.
25. From the perusal of pleading of the parties and admission made by the appellant, I am of the considered view that the plaintiff proves his case for grant of a decree of specific performance of contract. The discretion judicially exercised by the trial Court is correct and rightly granted a decree of specific performance of contract in favour of respondent/plaintiff. After examining all the circumstances as required for granting of a decree of specific performance of contract, it can not be said that the trial Court has not applied its mind properly on the points mentioned above. The finding recorded by the learned trial Court is based on admission made by the parties and therefore, it cannot be said that the trial Court has committed any legal error in granting a decree and decreeing the suit of the plaintiff.
26. Thus, appeal fails and stands dismissed with cost. Counsel's fee Rs. 2000/-, if, pre-certified.