A. D. Koshal, J.
1. This petition under Section 115 of the Code of Civil Procedure has been filed by Bhagwan Singh, one of the defendants in a suit for possession of 26 Bighas 13 biswas of land situated in village Chaunda on the basis of a gift deed and seeks the revision of an order dated the 29th of November, 1971 of the Subordinate Judge II class Malerkotla, refusing permission to the petitioner to produce secondary evidence of the contents of a document described as a deed of compromise.
2. The parties are inter-related as shown in the following pedigree table:--
Ram Singh Bhagwan Singh
No. 2 No. 1
| | | | |
Hardial Mukhtiar Harbhajan Didar Jeet
Singh Singh Singh Singh Singh
Plaintiff Plaintiff Plaintiff Plaintiff Defendant
No. 1 No. 2 No. 3 No. 4 No. 3
It appears that the gift deed abovementioned was the subject-matter of a disputed mutation which was to come up for further proceedings before the concerned Roving Revenue Assistant on the 28th of March, 1963. On that date Ishar Singh, his son Ram Singh and the latter's son Jeet Singh presented to the Roving Revenue Assistant a document of which a certified copy was produced before the trial Court. The contents of that copy, when freely translated, run thus:
In the Court of R. R. A., Camp Malerkotla.
Ram Singh son of Ishar Singh, Hardial Singh, Jeet Singh, Didar Singh, Harbhajan Singh, Mukhtiar Singh sons of Ram Singh residents of Chaunda. ......... Applicants.
Ishar Singh son of Basant Singh Jat of Chaunda. ..... Respondent.
Disputed mutation of gift and inheritance regarding land of Basant Singh deceased son of Ranjit Singh resident of Chaunda--land situated in village Chaunda.
We are, Ram Singh son of Ishar Singh, Gurdial Singh, Jeet Singh, Didar Singh, Harbhajan Singh, Mukhtiar Singh sons of Ram Singh through Jeet Singh who is responsible for his brothers, applicants, and Isbar Singh son of Basant Singh resident of Chaunda-respondent. Whereas 45 bighas and 7 biswas of land shall be in the name of us Ram Singh and Ishar Singh by inheritance through a will of Basant Singh deceased of village Chaunda. Moreover there is a gift of 26 bighas and 13 biswas of land by Basant Singh deceased of village Chaunda in favour of Hardial Singh and others sons of Ram Singh, regarding which a settlement with Ishar Singh has taken place. The entire lot of Basant Singh's land is settled at half and half. Mutation may be sanctioned in our favour half and half. For those sons who are not present I, Ram Singh, am responsible. Therefore this Razinama has been written so that it may be used as a Sanad. Dated 28th of March, 1963.
Ram Singh shall be owner of one-half and Ishar Singh shall be owner of one-half. I. Ram Singh, shall have no connection after the inheritance of Ishar Singh opens, with that one-half of the land which shall be in the name of my father Ishar Singh, and only my brother Bhagwan Singh shall be owner thereof. Therefore this Razinama is written so that it may provide a Sanad. Dated 28th of March. 1963.
I, Ram Singh, and my descendants shall have no connection with the property of Ishar Singh and only Bhagwan Singh shall be owner thereof. Dated 28th of March, 1963.
Sd/- Ram Singh Sd/- Jeet Singh
Sd/- Ishar Singh
Sd/- Witness Harbans Singh Sarpanch Chaunda
Sd/- Witness Mehar Singh Chaunda
Sd/- Ganda Singh Lambardar Chaunda
Sd/- Harchand Singh Lambardar Chaunda
Sd/- Kaka Singh Lambardar Chaunda Sd/- Petition Writer No. 197
The copy also contains the following endorsement :
Ishar Singh, Ram Singh and Jeet Singh who admit the Razinama Bahmi. A new mutation shall be entered according to rules and put up.
Sd/- R. R. A.
28th of March, 1963
In obedience to the endorsement above extracted mutation No. 4092 was entered in the revenue records pertaining to village Chaunda and the Razinama was appended thereto but the same is now missing. Bhagwan Singh defendant who relies on the Razinama made an application to the trial Court for permission to produce secondary evidence of the contents thereof. That application was rejected by the trial Court through the impugned order on the ground that the original Razinama was compulsorily registrable and was also subject to levy of stamp duty, that it was not registered and no stamp duty was paid in respect of it; and that therefore no secondary evidence of its contents could be allowed.
3. In my opinion no stamp duty was leviable on the Razinama which was also not compulsorily registrable. In this connection the relevant provisions of the Indian Stamp Act and the Indian Registration Act have to be examined. The charging section of the former is Section 3, which lays down that certain types of 'instruments' shall be chargeable with duty of the amount indicated in Schedule I appended to the Act. The word 'Instrument' is defined in Section 2(14) as follows :--
' 'Instrument' includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished, or recorded.'
Although this definition uses the word 'includes' and is, therefore, not exhaustive, it has been repeatedly held that where a document does not itself create, transfer, limit, extend, or record any right or liability but only recites the details of an already completed transaction it does not fall within the definition.
A similar result follows from a study of the relevant clause of Section 17(1) of the Indian Registration Act. That clause is Clause (b) and according to it non-testamentary instruments (except those of gift of immovable property) which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future; any right, title or interest whether vested or contingent, of the value of one hundred rupees or upwards to or in immovable property, require compulsory registration. The clause has been repeatedly interpreted to embrace only such documents as themselves purport or operate to create, declare, etc., rights or interests in immovable property and not documents which merely recite an already completed transaction purporting or operating to create, etc., such rights. It is in the light of the accepted interpretation Placed on Section 2(14) and Clause (b) above mentioned that the question as to whether secondary evidence of the contents of the Razinama dated 28-3-1963 can or cannot be given has to be answered. If the original Razinama was compulsorily registrable, secondary evidence of its contents would have to be disallowed except as evidence of part-performance of a contract for the purpose of Section 53A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by a registered instrument in accordance with the provisions of Section 49 of the Indian Registration Act. Again, if stamp duty was leviable on the original Razinama no secondary evidence at all of its contents would be admissible because the Razinama itself could not be admitted in evidence in view of the provisions of Section 35 of the Indian Stamp Act- So the crucial point is: Is the Razinama an instrument compulsorily registrable under Section 17(1)(b), or one liable to stamp duty by reason of the fact that it is an 'instrument' within the meaning ascribed to it in Section 2(14) of the Indian Stamp Act, or whether it is neither the one nor the other by reason of the fact that it does not itself declare, create, etc., any right but only recites an already completed transaction declaring or creating such a right The question has to be answered with reference to the contents of the Razinama. It no doubt uses the words 'Razinama likh diya ke sanad rahe' at two places and also uses the future tense in regard to the respective rights of the parties in the land left by Basant Singh; and if it were to be literally construed it may be said that it itself created rights of the kind abovementioned. But the document has to be considered as a whole along with its circumstances, and so considered it can be regarded merely as an application to the Roving Revenue Assistant reauestins him to sanction a mutation in accordance with a settlement which the parties had already arrived at orally. The purpose of the Razinama was merely to have a mutation sanctioned and its language was obviously chosen by the scribe to express in his own wav what was conveyed to him by the parties as the details of the settlement between them. It was addressed to the Roving Revenue Assistant, contained the title of the disputed mutation of gift and inheritance in relation to the land left by Basant Singh and made an express prayer that mutation be sanctioned in accordance with the settlement Again it was presented to the Roving Revenue Assistant on the very day on which it was scribed and a mutation was actually entered in pursuance of it and of the endorsement made on it by the Roving Revenue Assistant. All these factors go to indicate unmistakably that it was an application pure and simple which recited the settlement already arrived at and was never meant to be a record of the settlement itself.
Considering a similar document Chatterji, J. observed thus in Prabh Dayal v. Gurmukh. 1902 Pun Re 98:
'There is no doubt that words used 'iqrar karta hun' and 'I agree and write that I mortgage such right' purport to set forth that the mortgage was made by it, and if these words are literally construed the finding of the Divisional Judge must be admitted to be correct. But the whole document must be read together and its attendant circumstances considered. Now it was addressed to the Munsif and contained the title of the case and other particulars at the top, and wound up by asking the Munsif to strike off the execution proceedings in accordance with it. Below the signature of the defendant the plaintiffs have written 'This faisla is accepted by me' and signed their names. Clearly therefore it was in form an application made to the Court stating the terms of the agreement between the parties. It is not written on the non-judicial stamp, and does not purport to be a mortgage deed. The statement of the mortgagor to the Court, however worded, cannot therefore be anything but an application reciting the facts. Now an application to Court in whatever language it might be couched cannot properly be treated as the original contract between the parties to the case in which it was made. It must be held to be a mere recital of the contract independently entered into between them. In other words the language should have been 'I have agreed to mortgage such right' which would have been proper in a petition filed in Court setting forth the terms of the contract. There cannot be any doubt about the correctness of this proposition. In a Proper case it is permissible to supply omitted words, to reject repugnant words, to transpose words and to disregard mistakes in grammer and spelling if the intention of the parties sufficiently appears from the context. Norton and dark's Interpretation of Deeds, Edition 1885. Rule 17, page 78, See also Rule 16 ibid. Here you have only to disregard the use of the present tense. If the above rule is applicable to documents regularly and formally drawn up a fortiori it applies to informal ones written by unskilful scribes. The great point is to find out the intention of the parties, and it is not possible, in my opinion, to hold that the contract of hypothecation was made for the first time and only by means of the application. The proper reading is that it contains merely a statement of the fact that such an agreement has been made. The agreement thus remained an oral one, and neither the incorrect use of the present tense in the application nor the acceptance of the application and agreement by the Court can make any difference. The document therefore creates no rights and does not require registration.'
These observations fully apply to the Razinama with which I am dealing and support my view that the Razinama is only an application and not a settlement. Other decisions in which a similar view was taken are Mt. Khari-Ul-Niasa v. Bahadur Ali. 1906 Pun LR 11: Mt. Jeo v. Jaimal Singh, AIR 1915 Lah 240: Hari Chand v. Magi Mal, AIR 1917 Lah 282 (2) and Ram Saran Lal v. Emperor, AIR 1918 All 307.
4. Holding that the Razinama dated the 28th of March, 1963 was neither compulsorily registrable nor was liable to stamp duty under the Indian Stamp Act. I accept the petition, set aside the impugned order and allow Bhagwan Singh defendant to produce secondary evidence of the contents of the Razinama at the trial. No order as to costs. Announced in the presence of counsel for the parties.