| SooperKanoon Citation | sooperkanoon.com/926063 |
| Subject | Civil |
| Court | Chennai High Court |
| Decided On | Mar-08-2012 |
| Case Number | A.S.No.156 of 2001 and C.M.P.Nos.1323 and 1324 of 2008 |
| Judge | G.RAJASURIA, J. |
| Acts | Indian Stamp Act, 1899 - Section 18, 35, 36, 61, 42, 43, 3(c), 11, 32, 33; ndian Limitation Act - Section 10; Guardians and Wards Act, 1890 - Section 20 |
| Appellant | Padmaja Ashok |
| Respondent | Dr.E.Rajyasree and ors. |
| Advocates: | Mr.M.S.Murali for, Adv. |
JUDGMENT
1. The second defendant in the suit filed this appeal as against the judgement and decree dated 4.8.2000 passed by the learned the V Additional City Civil Judge, Madras, in O.S.No.1927 of 1996, which was filed for declaration and for obtaining delivery of vacant possession of the property described in the schedule of the plaint.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
(a) The first plaintiff-Dr.E.Rajyasree in the suit was represented by her power of Attorney-Mr.A.Jayagopal, who also represented the minor second plaintiff minor E.Navin Emmadi as his next friend. The plaintiffs filed the suit originally as against D1-the father-in-law of the first plaintiff, so to say, the father of her deceased husband, namely, Venkatakrishna Emmadi, with the following prayer: to pass a judgement and decree against the defendant:
(i) for a declaration that the plaintiffs are the sole and absolute owners of the House, ground and premises bearing Municipal Door No.1-A, (New No.2), Sir Ramaswamy Mudaliar Road, Vepery, Madras-600 007, more particularly described in the schedule to the plaint hereunder and for directing the defendants jointly and severally to quit and deliver vacant possession of the house, ground and premises bearing Municipal Door No.1-A, New No.2), Sir Ramaswamy Mudaliar Road, Vepery, Madras-600 007, more particularly described in the schedule to the plaint hereunder;
(ii) directing the defendant jointly and severally to pay to the plaintiffs a sum of Rs.36,000/- and future damages at Rs.1,000/- per month from the date of plaint till date of delivery of vacant possession of plaint schedule property; (iii) for a permanent injunction restraining the defendant their agents, servants and all those persons claiming under them and/or authorised by them in any manner dealing with the plaint schedule property in a manner whatsoever either by altering or damaging or otherwise; (iv) directing the defendants jointly and severally to pay to the plaintiffs the costs of the suit. (extracted as such)
(b) Pithily and precisely the averments in the plaint would be to the effect that the property described in the schedule of the plaint was donated by the aunt of deceased Venkatakrishna Emmadi, while he was a minor. The original defendant E.Damodaram, represented him as the guardian in the settlement deed and accepted the donation. Whereupon the defendant and his son the deceased Venkatakrishna Emmadi lived in the said house. Venkatakrishna Emmadi got married the plaintiff Rajayasree on 2.3.1977. After staying for a considerable time in the suit property, the said Venkatakrishna Emmadi left for America and there he died, leaving behind the plaintiffs as his only legal heirs. They are governed by the Hindu Law. When they made claim over the suit property, D1 resisted their claim, whereupon the suit was filed.
(c) The original D1 died, pendente lite. Whereupon D2 and D3-the daughter and the son of D1 were impleaded. D3 did not participate in the proceedings. However, D2 filed the written statement resisting the suit; a thumbnail sketch of the same would run thus: D1, during his lifetime acquired absolute right and title over the suit property, as evidenced by the property tax receipts, electricity bills and other consumption charges paid by him. Deceased Venkatakrisha Emmadi left the suit property shortly after his marriage withthe first plaintiff-Rajyasree. Venkatakrishna Emmadi died in America. As such, during his life time, he never asserted any right of ownership under the said settlement deed executed by his aunt. The fact remains that the deceased D1 let out the suit property and received rents. D1 also initiated rent control proceedings as against the tenants and evicted them. As such, D1 acquired absolute title over the suit property by adverse possession in view of his long continued and uninterrupted possession as owner . Accordingly, D2 prayed for the dismissal of the suit.
(d) Whereupon the trial Court framed the issues.
(e) During trial, the Power of Attorney of the plaintiffs examined himself as P.W.1 and Exs.A1 to A9 were marked. On the defendants' side, D2 examined herself as D.W.1 and Ex.B1 to B26 was marked.
(f) Ultimately, the trial Court decreed the suit.
4. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, D2 filed this appeal on various grounds.
5. The learned counsel for the appellant/D2 would put forth and set forth his arguments by placing reliance on the grounds of appeal, which could pithily and precisely be set out thus:
(i) The trial Court failed to take into consideration the fact that the original defendant acquired title by adverse possession.
(ii) The trial Court simply took it for gospel truth the case of the plaintiffs and decreed the suit.
(iii) The exhibits marked on the defendants' side, namely, Exs.B1 to B26 would all show that D1 exercised his right of absolute ownership over the suit property and virtually the Government authorities concerned recognised him as the owner and received taxes from him and issued receipts.
(iv) The correspondences emanated from the Government authorities also referred to Damodaram as the owner of the suit property. In such a case, absolutely, without any rhyme or reason, the lower Court simply rejected the documents filed on the side of the defendants and accepted the plea of the plaintiffs purely based on the original settlement deed executed by the aunt of the deceased Venkatakrishna Emmadi.
Accordingly, the learned counsel for the appellant/D2 would pray for setting aside the judgement and decree of the trial Court and for dismissing the suit.
6. In a bid to shoot down and make mincemeat of the arguments as put forth and set forth on the side of the appellant/D2, the learned counsel for the respondents 1 & 2/plaintiffs would advance her arguments, the gist and kernal of them would run thus: (a) It is quite unimaginable that a father of a minor could set up a plea of adverse possession. Indubitably and indisputably D1-the original defendant was the guardian of the minor beneficiary under the settlement deed Ex.A5-28.3.1955. As such, D1-Damodaram came into possession of the suit property only in his capacity as the guardian of the minor child. In such a case, his alleged meddling with the property as owner would in no way clothe him with the incidence of ownership and by no stretch of imagination he could be held to have acquired adverse possession over the suit property.
(b) The document filed on the side of the plaintiffs would amply establish that till 1985, Venkatakrishna Emmadi was in possession and enjoyment of the suit property along with his father and it cannot be contended and projected that Damodaram was in possession and enjoyment of the suit property. Merely because Venkatakrishnan Emmadi reposed confidence in his father and allwed him to correspond with the Government authorities and also pay taxes in his own name, that it does not mean that he allowed his father to become the absolute owner.
(c) The trial Court considering the pro et contra correctly and appropriately appreciated the real facts and held that Venkatakrishna Emmadi continued to be the owner till his death and on his death, his only legal heirs, namely, the plaintiffs became the owners of the suit property, warranting no interference in appeal.
Accordingly, the learned counsel for the respondents/plaintiffs would pray for dismissing the appeal.
7. The points for consideration are as under:
(i) Whether the lower Court was wrong in holding that D1 did not acquire prescriptive title by adverse possession.
(ii) Whether the trial Court was justified in marking the Power of Attorney-Ex.A4 dated 23.10.1993 without collecting the stamp duty and penalty, as per Section 18 read with Section 35 of the Indian Stamp Act, 1899?
(iii) Whether the lower Court was justified in awarding Rs.1000/- per month towards damages for use and occupation payable by D2 in favour of the plaintiffs?
(iv) Whether there is any perversity or illegality in the judgment and decree of the trial Court?
8. All these points are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
9. The indubitable and unassailable or at least the undeniable facts would run thus:
(i) The deceased D1-Damodaram's sister, namely, Bagiyavathiammal happened to be the absolute owner of the suit property and the related property; she executed three settlement deeds in favour of the three children of D1-Damodaram, in view of the fact that the said Bagiyavathiammal had no issues on her own.
(ii) The said Venkatakrishna Emmadi, as per Ex.A5-the settlement deed dated28.3.1955, executed by Bagiyavathiammal in his favour, became the absolute owner of the suit property. At the relevant time of the execution of the settlement deed, since Venkatakrishna Emmadi was a minor, his father Damodaram-D1 represented him.
10. The precise contention of D2 is that D1 acquired ownership by adverse possession during his life time. It has to be seen as to how far such a plea would be tenable in the wake of the settled legal position.
11. My mind is reminiscent and redolent of the following decision of the Honourable Apex Court.
(i) (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others). An excerpt of it would run thus:
10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v.Graham made the following reference: Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the Courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
11. This brings us to the issue of mental element in adverse possession cases  intention..................
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms:
If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi') * * *
If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
* * *
In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
* * *
What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.
(emphasis supplied)
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf Vs. Govt. Of India in the following terms: (SCC p.785, para 11)
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
31. Inquiry into the starting point of adverse possession i.e dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M.Karim Vs. Bibi Sakina: (AIR p.1256, para 5)
Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. (emphasis supplied)
32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
33.In Karnataka Wakf Board it is stated: (SCC pp.785-86, para
12) A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P.Periasami V. P.Periathambi this Court ruled that: (SCC p.527, para 5)
'Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.'
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal V. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp.640-41, para 4)
'4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.' (emphasis supplied)
12. A bare perusal of the said decision of the Honourable Apex Court would leave no doubt in the mind of the Court that a guardian of the minor, even by phantasmagorical thoughts could never claim to have acquired title by adverse possession.
13. At this juncture I would like to refer to the following terms from Black's LAW Dictionary (Sixth Edition):
(i) Cestui que trust  He who has a right to a beneficial interest hin and out of an estate the legal title to which is vested in another. The person who possesses the equitable right to property and receives the rents, issues, and profits thereof; the legal estate of which is vested in a trustee. The beneficiary of a trust.
(ii) Cestui que use  He for whose use and benefit lands or tenements are held by another. The cestui que use has the right to receive the profits and benefits of the estate, but the legal title and possession (as well as the duty of defending the same) reside in the other.
14. In addition to that, I would also like to refer to Section 10 of the Indian Limitation Act and Section 20 of the Guardians and Wards Act, 1890.
Sec.10 of the Limitation Act. Suits against trustees and their representatives  Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns not being assigns for valuable consideration, for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation  For the purpose of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.
Sec.20 of the Guardians and Wards Act, 1890  Fiduciary relation of guardian to ward  (1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by this Act, he must not make any profit out of his office. (2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor, and generally all transactions between them while the influence of the guardian still lasts or is recent.
15. A plain wading through the relevant pages of Salmond's jurisprudence and also the commentaries under Section 10 of the Limitation Act and Section 20 of the Guardian and Wards Act would enable the Court to come to a firm conclusion; a fortiori a guardian of a minor can never claim to have acquired title by adverse possession over such minor's property.
16. I am fully aware of the fact that neither in Section 10 of the Limitation Act, nor Section 20 of the Guardians and Wards Act, the guardian is contemplated as trustee; however, the Court is expected to take a cue from those provisions and understand that the guardian, being in a fiduciary relationship towards the minor concerned, cannot do anything so as to thwart or falsify the interest of minor at any time and even after cessation of his guardianship.
17. The concept 'adverse possession' would connote and denote, convey and portray that impliedly there is admission on the part of the person who claims such title that he admits the title of the person as against whom he is putting up such plea.
18. Between Damodaram and his son-Venkatakrishna Emmadi there existed a fiduciary relationship. Damodaram was duty bound to conduct himself in concinnity and inconsonance with the duties and responsibility enjoined him by law. There existed 'trust' in the sense that law contemplated a trust in Damodaram to the effect that he should not betray the trust reposed by law in him to use the property, namely, the suit property for the welfare of the minor.
19. The contention on the side of the defendants that the said minor, after becoming major, did not assert his right as owner, is neither here nor there. The relationship of the parties should necessarily be seen. Venkatakrishna Emmadi was admittedly the biological son of Damodaram-D1 and in such a case, simply because the son permitted the father to be in occupation of the suit property and let it out to tenants and collect rents, and pay tax etc., for the property, no presumption arises as against the son that he permitted his father to acquire title by adverse possession as against him. The lower Court also appropriately and appositely and that too, legally referred to Ex.B1-the letter dated 21.12.88, which was produced by D2 to the Court. An excerpt from it would run thus: '. . . . . . . Regarding father, you know he is a wonderful father. How could we forget him. He lived for us. Gave us whatever he could possibly give. I know particularly father is more attached to me. The reason being, Ranu left for Coimbatore while he was 17 and almost away from home till then. Gopal also left for Vizad and then to Libya. I was always with him till I was 39 years old.. . . . Â (emphasis supplied)
20. Admitted Venkatakrishna Emmadi died while he was in his early forties.
21. The learned counsel for the respondents/plaintiffs also would clarify that in fact the deceased Venkatakrishna Emmadi wrote that letter to D2 referring her as 'Dear Chitti'. It is therefore clear that Venkatakrishna Emmadi, before his death categorically and candidly pointed out in his aforesaid letter that the cordial relationship between himself and his father subsisted and also the factum of he having had control over the suit property even during the year 1985. There is nothing to indicate that D1 during his life time ever pleaded adverse possession as against his own son. Only on D1's death, his daughter started setting up pleas of adverse possession in favour of her father, so as to ultimately get benefit through him. As such the plea of adverse possession has been rightly rejected by the trial Court, warranting no interference in this appeal.
22. In the course of the hearing, this Court raised the point as to whether the General Power of Attorney-Ex.A4 dated 23.10.93 was duly stamped as per Section 18 of the Indian Stamp Act. I could see that it was not stamped as per Section 18 of the Stamp Act. The undeniable fact is that the said document was marked as Ex.A4, without any objection. Hence, I would like to recollect the following decision of the Honourable Apex Court:
(2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. .....................An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20)
20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court. (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have marked as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.
23. A bare running of the eye over the above precedent would also exemplify and demonstrate that marking is different from proving a document or report.
24. Sections 35 and 36 of the Stamp Act are also re-produced hereunder.
Sec.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 by any public officer unless such instrument is duly stamped. Sec.36. Admission of Instrument where not to be questioned- 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.
25. A cumulative reading of the aforesaid decision and the provisions of the Indian Stamp Act would unambiguously and unequivocally highlight and convey the fact that once an insufficiently stamped document is marked, its admissibility cannot be challenged before the same Court. However, I would like to refer to Section 61 of the Stamp Act, which is extracted hereunder for ready reference. Sec.61.Revision of certain decisions of Courts regarding the sufficiency of stamps  (1) When any Court in the exercise of it civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (Act 5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration. (2) If such Court, after such consideration, is of opinion that such Instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35 or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such Instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same and may impound the same when produced. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 42, or in Section 43, prosecute any person for any offence against the stamp-law which the Collector considers him to have committed in respect of such instrument: Provided that-
(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty; (b) except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Section 42.
26. The learned counsel for the plaintiffs also in all fairness cited the decision of the Honourable Apex Court in MALAYSIAN AIRLINES SYSTEMS BHD V. STIC TRAVELS (P) LTDÂ Â (2001)1 SUPREME COSURT CASES 451, an excerpt from it would run thus:
1. This matter relates to a question of impounding a power of attorney executed outside India and presented in India for use in proceedings in the Supreme Court. The question turns upon interpretation of Sections 3(c), 11, 18, 32 and 42 of the Stamp Act, 1899.
2. An order was passed on the last occasion on 3-11-2000, impounding the power of attorney dated 15-12-1997 and levying maximum penalty along with stamp duty and directing deposit of a sum of Rs 110 in the treasury. Directions were also issued to the treasury to give the receipted challan on the same day. That order reads as follows:Â This application has been filed by the petitioner under Section 11 of the Indian Arbitration and Conciliation Act, 1996.
At the time of hearing of this application learned counsel for the respondent has raised an objection that the general power of attorney dated 15-12-1997 issued by the petitioner Company of Malaysia in favour of Mr Noor Amiruddin Bin Mohd. Nordin, Senior Vice- President/General Manager, South-Asian Region executed at Kuala Lumpur has not been properly stamped according to the Indian Stamp Act, 1899 and that, therefore, it is not admissible in India. The present petition under Section 11 is signed by the said power-of-attorney holder. Learned counsel appearing for the petitioner has stated that, assuming the said plea is tenable, the petitioner has no objection to make good the required stamp duty and penalty.
Under Section 3(c) of the Indian Stamp Act, 1899, stamp duty is payable on every instrument (other than a bill of exchange or promissory note) mentioned in the Schedule, which, not having been previously executed by any person, is executed out of India on or after that day, relates to any property or to any matter or thing done or to be done in India and is received in India. As the document, though executed outside India, is sought to be used in India, for filing the application under Section 11 of the Arbitration and Conciliation Act, 1996, the power of attorney is liable to stamp duty under the Indian Stamp Act. Under Article 48 of Schedule I of the Stamp Act, omitting clause (d) or (e) of Article 48 which refers to more than one person being authorised under the power of attorney and also omitting clause (f) which deals with the power to sell immovable property, the maximum fee otherwise payable for a power of attorney is Rs 10, according to counsel on both sides. I, therefore, impound the document under Section 33 of the Act, direct the petitioner to deposit stamp duty worth Rs 10 plus the maximum penalty of ten times as provided in Section 40(1)(b). The total stamp duty and penalty liable to be deposited will be Rs 10 W 11 = Rs 110. The Registrar (Judicial) is directed to put his stamp on the challan to be produced by the petitioner's counsel. Thereafter, the petitioner will deposit Rs 110 in the treasury and produce the receipted challan back with the seal or endorsement of the treasury. Thereafter the Registrar (Judicial) will make an endorsement that the document was impounded by the Court and that the stamp duty and penalty has been paid. Then the document will be placed before the Court. For the above purpose, the original power of attorney shall be produced before the Registrar (Judicial) for completing the above formalities.
The Treasury Officer is directed to give the receipted challan on the same date on which it is presented, without raising any further objection.
Call the matter on 17-11-2000 in chambers at 1.30 p.m. If the stamp duty is paid aforesaid, then this Court will be able to make an endorsement as per Section 42(1) of the Stamp Act admitting the instrument in evidence.
3. The penalty and stamp duty have since been paid and the original document dated 15-12-1997 is produced in this Court and also contains the endorsement of the Registrar of this Court to the following effect:
 The document was impounded by this Hon'ble Court under Section 33 of the Indian Stamp Act, 1899. As per the order of this Hon'ble Court dated 3-11-2000 the petitioner has paid stamp duty of Rs 10 and penalty of Rs 100, total sum of Rs 110 with the treasury vide Challan No. 46 dated 10-11-2000.
4. In the meantime, IA No. 4 of 2000 was filed by the respondent to recall the order dated 3-11-2000, contending that the power of attorney dated 15-12-1997 was produced beyond 3 months from the date of execution outside India and that therefore under Section 18 of the Indian Stamp Act, read with clause (b) of Section 32 of the Indian Stamp Act, it is not permissible to follow the course adopted by this Court in its earlier order abovementioned, inasmuch as more than 3 months have elapsed from the date of execution of the document.
5. In my view, the point raised in the IA is not tenable. In a case where the unstamped document (other than bill of exchange) is produced as evidence, within three months of execution, the stamp duty can be collected without impounding and without penalty. If the document is sought to be used as evidence beyond three months, the abovesaid bar of three months shall not apply, and the document can be impounded under Section 33 and stamp duty and penalty are levied, even after expiry of three months.
6. According to the decision of the Fell Bench of the High Court of Allahabad in Mohd.Amir Ahmad Khan v. Dy.Commr.as affirmed by this Court in Govt.of U.P.v. Raha Mohd.Amir Ahmad Khan and also according to the decision of the Delhi High Court in J.S.Bhalla v. G.J.Bhawnani the procedure permitting submission of a document within 3 months of its execution as in Section 18 is for collection of the stamp duty payable on the document. If it is produced as evidence within three months of execution, the stamp duty can be collected under Section 18, read with Section 32, without impounding the document under Section 33. But in case where 3 months have already expired from the date of execution of the document and later on the document is produced before the Court as evidence, it is permissible for the Court to impound the document and collect the stamp duty and penalty and in such a situation, the time-limit of 3 months provided in Section 18 and clause (b) of Section 32 is not attracted. Therefore, the point raised by the respondent in the abovesaid IA cannot be accepted.
27. The aforesaid precedent of the Honourable Apex Court would leave no doubt in the mind of the Court that even in respect of the power of attorney emerged in Foreign countries, the higher fora can invoke its power under Section 61 of the Indian Stamp Act.
28. As such, I am of the view that it is not too late in the day on the part of the appellate Court, namely, the High Court herein to pass suitable orders for the collection of the stamp duty and penalty. But one fact is clear that merely because such Foreign Power of Attorney was used by the first plaintiff for filing the suit through Jayagopal, it would not cut at the very root of the plaint itself.
29. Ex.A4 is the General Power of Attorney dated 23.10.1992 executed by Rajyasree-the first plaintiff in favour of A.Jayagopal and it was duly attested by the notary public on 6.5.1997. Therefore, it could safely be understood and inferred that subsequent to 6.5.1997 alone the said Power of Attorney was brought into India and within three months, as per Section 18 of the Stamp Act, the document should have been produced before the Collector and got it duly stamped, but that was not done so. Even then that would not render the entire document invalid. Over and above that, the said document was also marked before the lower Court without any objection having been raised by the other side. To put the matter on an even keel, as such, as per Section 61 of the Act, which is extracted supra, I am of the considered view that the document be impounded and the stamp duty and penalty should be collected by the Collector by treating it as the Power of Attorney executed by the principal in favour of only one person, namely, Jeyagopal to act as her General Power of Attorney, to initiate Court proceedings and also defend such proceedings. With this the Registry is expected to send the document with the necessary endorsement to the Collector for collecting stamp duty and penalty.
30. The learned counsel for the appellant/D2 would develop his argument by pointing out that awarding of Rs.1000/- per month towards damages for use and occupation payable by D2 in favour of plaintiffs, is untenable and against law. Whereas, the learned counsel for the plaintiffs would support the order of the lower Court by pointing out acceptably and legally and that too without any fear of contradiction that it is anybody's guess that the suit property, which is situated in the heart of Chennai city would fetch easily more than Rs.1000/- per month, pending the Court proceedings.
31. I need not dilate on that point because it is quite obvious and axiomatic in addition to it being an elephant in the room that the rental value in the city rises in geometrical proportion, day-by-day. As such, I could see no perversity or illegality in the judgement rendered by the trial Court which decided the suit au fait with law.
32. Accordingly, the points are decided as under:
Point No.(i) is decided to the effect that the trial Court was justified in holding that D1 did not acquire title by adverse possession.
Point No.(ii) is decided to the effect that the trial Court was not justified in marking the power of Attorney Ex.A4 dated 23.10.1993, without collecting the stamp duty and penalty, as per Section 18 read with Section 35 of the Indian Stamp Act, 1899 and therefore, suitable orders passed as above.
Point No.(iii) is decided to the effect that the trial Court was justified in awarding Rs.1000/- per months towards damages for use and occupation, payable by D2 in favour of the plaintiffs.
33. In the result, the appeal stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are dismissed.