T.R. Handa, J.
1. This revision petition filed at the instance of the plaintiffs under Section 115 of the Code of Civil Procedure calls in question the order dated 9-1-1980 recorded by the Sub Judge Ist Class, Kangra, and arises in the following circumstances.
2. The petitioners who are the plaintiffs had filed their suit giving rise to this revision petition, for possession of some agricultural land. The petitioners produced a document which purports to be a deed of relinquishment of tenancy, rights and wanted to prove the same as a part of their evidence. This document was neither stamped nor registered. Since the document could not be admitted into evidence for want of stamp duty, the petitioners made a prayer to the trial Court that they be allowed to deposit the stamp duty chargeable on this document along with the prescribed penalty so that the document could be considered as duly stamped for the purposes of the Stamp Act. The learned trial Court, however, vide its impugned order declined this request of the petitioners. As a bare reading of the languageof the impugned order would suggest, the learned trial Court declined the request of the petitioners on the solitary ground that the document being a deed of relinquishment of tenancy rights required compulsory registration under Section 17 of the Registration Act and since it was not registered, no order need be passed either calling upon the petitioners to deposit the stamp duty chargeable on it along with penalty or for sending the document to the Collector for realising the requisite stamp duty and penalty.
3. I entertain no doubt that the approach of the learned trial Court in the matter is wholly erroneous and has resulted in its failure to exercise its lawful jurisdiction.
4. It is an admitted position that the petitioners had produced the document mark 'X' before the trial Court for being admitted into evidence and that when so produced this document was unstamped though it was chargeable with duty under the Stamp Act. In a situation of this type the trial Court was under a legal obligation in terms of Section 33 of the Stamp Act to impound the document, that is, to take it into legal custody. After the document was so impounded there were two courses open to the trial Court. The first course was to admit the document into evidence upon payment of the duty chargeable thereon and the penalty as provided by Section 35 of the Stamp Act and to send to the Collector an authenticated copy of this document together with the certificate in writing stating the amount of duty and penalty levied in respect thereof and also to send such amount to the Collector as provided by Sub-section (1) of Section 38 of the Stamp Act. In the alternative in case the petitioners failed to pay the duty and the penalty as provided under Section 35 of the Stamp Act, the trial Court was required to send the original document to the Collector. There was no third course open to the learned trial Court.
5. Looking from another angle, the document mark 'X' which admittedly was chargeable to duty under the Stamp Act and was unstamped was inadmissible in evidence on account of the bar placed by Section 35 of that Act. Proviso to Section 35, however, clearly lays down that any such instrument, not being an instrument chargeable with duty not exceedingten paise, or a bill of exchange or a promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, ten times the amount of the proper duty whichever is more, It is, thus, obvious that the bar against admittance in evidence of an unstamped or insufficiently stamped instrument of the nature like the document mark 'X' as placed by Section 35 of the Stamp Act is not absolute and the same would stand removed as soon as the duty chargeable on the instrument of the deficiency in such duty along with the prescribed penalty is paid. The person producing an unstamped or insufficiently stamped instrument of this nature has, therefore, the right to claim that the instrument be admitted into evidence on payment of the deficient stamp duty and the penalty which right is, of course, subject to all just exceptions. Again it is not disputed before me on either side that the document mark 'X' which purports to be deed of relinquishment of tenancy rights required compulsory registration under Section 17 of the Registration Act. This fact by itself, however, would not mean that this document was inadmissible in evidence for all purposes as has been found by the trial Court. Section 49 of the Registration Act does, of course, enjoin that no document which requires compulsory registration either under Section 17 of that Act or under any provision of Transfer of Property Act shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. But at the same time the proviso appended to this section lays down in to ambiguous terms that an unregistered document affecting immovable property and requiring compulsory registration may be received in evidence to prove any collateral transaction not required to be effected by a registered instrument. The document mark 'X' after the duty chargeable thereon along with the penalty is paid, would therefore, be admissible in evidence for proving some collateral transaction which does not require compulsory registration and non-registration of this document would not stand in the way. Whether this document can in fact be used asevidence of any collateral transaction not requiring registration and which is relevant for the purposes of the decision of the suit, is a point which needs determination at the appropriate stage. For the present it has only to be observed that the prayer of the petitioners to permit them to pay stamp duty chargeable on the document mark 'X' along with the penalty so as to treat the document as duly stamped, could not be legally refused.
6. With these observations I accept this revision petition, quash the order of the trial Court and direct that the petitioners be allowed to pay stamp duty chargeable on the document mark 'X' and also to pay the prescribed penalty. After such duty and penalty are paid the trial Court shall comply with the provision of Section 38(1) of the Stamp Act. The petitioners then may be allowed to prove this document and tender it as evidence of any relevant collateral transaction not required to be effected by the registered instrument.