T.R. Handa, J.
1. This Civil Revision Petition is at the instance of the defendants and is directed against the order dated 5-9-1981 recorded by the Sub-Judge, Kullu, in the course of trial of Civil Suit No. 63 of 1977 of his file, vide which the learned Sub Judge disallowed the petitioners-defendants to produce and prove a document at the trial.
2. It appears that one of the issues involvedin the suit pending before the Sub Judgebetween the parties was whether the propertyforming subject matter of the suit was thejoint property of the parties or had beenpartitioned between them earlier. The plea ofthe contesting defendants was that it was stilljoint and not partitioned whereas thecontention of the plaintiffs-respondents wasthat the same had already been partitionedand fallen to their share. In order tosubstantiate their plea the petitioners-defendants wanted to produce and prove adocument earlier executed, between the partieswhich, according to them recognized the jointnature of the suit property.
3. The learned Sub-Judge on a consideration of the contents of that document came to the conclusion that it was an instrument of partition of immovable property and inasmuch as it was neither stamped nor registered, it could not be admitted into evidence. He, therefore, vide his impugned order disallowed the petitioner-defendants to introduce that document into evidence.
4. The petitioners-defendants now seek to challenge the said order of the Sub-Judge.
5. I have perused the document sought to be introduced into evidence by the petitioners-defendants in the presence of the counsel for the parties. This document was executed between three brothers, the predecessors-in-interest of the present parties at the intervention of their sister. The document comprised of three parts. In the first part all the three brothers agreed to distribute the family debts between them and the particulars of the debts falling to the share of each brother were given. In the second part it is mentioned that the family owned some agriculture land which had been recorded in the revenue record as their joint property in equal shares. Vide the document in question the three brothers agreed that they would share the produce of that land in equal shares and that the entries in the revenue record were correct. The third and last portion of this document mentions of a residential house of the family. It is stated that the house was double storeyed and one portion thereof was at that time in occupation of one of the brother while the other was in occupation of their mother. Vide this documentthe three brothers agreed that the house be kept joint for the time being and that it would be partitioned later on with mutual consent of the three brothers and till then it will continue to be used for the purpose for which it was being used.
6. It is thus obvious that, no immovable property was partitioned by this document It was only an agreement between the parties though unstamped.
7. The approach of the learned Sub-Judge in the matter in my view was wholly erroneous and has resulted in his failure to exercise his lawful jurisdiction. So as to call for interference by this Court It is an admitted position that the document sought to be produced by the petitioners before the trial Court was an unstamped one. In a situation of this type when a document chargeable with duty is found unstamped or insufficiently stamped and is produced before a Court, the Court is under a legal obligation in terms of Section 33 of the Indian Stamp Act to impound such a document In other words, the Court is duty bound to take such document into legal custody. After the document is so impounded there are two courses open to the Court. The first course is to admit the document into evidence of course subject to all just exceptions, upon payment of the duty chargeable thereon and the penalty as provided under Section 35 of the Indian Stamp Act if so tendered by the party producing the document. After the stamp duty and the panelty are so paid, the Court is required to send to the Collector an authenticated copy of the document together with a 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 36 of the Stamp Act. The second course is when the party producing the document fails to pay the duty and penalty as provided under Section 35 of the Stamp Act, the Court must send the original document to the Collector who shall then take necessary steps for realising the stamp duty and the penalty. There is no third course open to the Court like keeping the unstamped document on the record without first realising the stamp duty and the penalty.
8. Again if we look to the provisions of Section 35 of the Indian Stamp Act, it is obvious that the bar against admittance in evidence of an unstamped or insufficiently stamped instrument of the nature like the one under consideration as placed by Section 35 of the Stamp Act is not an absolute bar and the same would stand removed as soon as the duty chargeable on the instrument or the deficiency in such duty along with the prescribed penalty are paid. The party producing an unstamped or insufficiently stamped instrument of this nature has, therefore, the right to claim that the instrument be admitted in evidence on payment of the deficient stamp duty and the penalty which right as earlier stated is, of course, subject to all just exceptions.
9. Even if a document or instrument which is sought to be introduced into evidence requires compulsory registration, this fact by itself would not make that instrument/document inadmissible in evidence for all purposes. Section 49 of the Registration Act does enjoin that no document which requires compulsory registration either under Section 17 of that Act or under any provision of the Transfer of 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. At the same time, however the poviso appended to this section lays down in no 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 or as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act. Even if the document in question was considered as a partition deed, after the duty chargeable thereon along with the penalty was paid, it could still be admissible in evidence for the purposes stated above. Whether the document can in fact be used as evidence of any collaterial transaction not requiring registration or for any other purpose referred to above is a point which would need determination at the appropriate stage and only after the document is admitted in evidence.
10. For the foregoing reasons I accept this revision petition, quash the order of the trial Court and direct that the petitioners-defendants be allowed to pay stamp duty chargeable on the document in question and also to pay the prescribed penalty. After such duty and penalty are paid the trial Court shall comply with the provisions of Section 38( 1) of the Indian Stamp Act. The petitioners will then be allowed to prove this document and tender it as evidence of any relevant collateral transaction not required to be affected by a registered instrument.
11. The parties through their counsel have been directed to appear before the trial court on 17th August 1985.