1 Heard Shri K.C.Sant, learned Counsel appearing for Revision Petitioner and Shri S.D.Dhongade, learned Counsel appearing for Respondent No.1. Respondent No.2 is served. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 The petitioner - original opponent in Probate Application No.1/2008 before the trial Court is raising exception to the order passed below Exhibit-28 on 13th August, 2010 by the Civil Judge, Senior Division, Amalner. Respondent No.1 herein presented Probate Application before the trial Court requesting for grant of probate in respect of will deed executed by Baburao Zendu Chavan (Dhobi) on 25.04.2011. In the application presented to the trial Court, Respondent No.1 contended that his father had a brother by name Baburao Chavan (Dhobi), who did not have any male successor. Petitioner No.1 and Respondent No.2 herein, being the daughters of deceased Baburao, after solemnization of their marriage, went to reside with their husband. Respondent No.1 herein i.e. probate applicant took care of deceased Baburao during his old age and as a recognition of services rendered by Respondent No.1 herein, deceased Baburao executed will deed on 25.04.2001, thereby bequeathing all his properties to Respondent No.1. Respondent No.1, as such, presented an application, as contemplated by the provisions of Section 276 of the Indian Succession Act for grant of probate.
3 The application was opposed by petitioner no.1 and Respondent No.2 herein by filing a written statement. The authenticity of the will deed, allegedly executed by deceased Baburao, has been questioned by them.
4 During continuance of the proceedings, Respondent No.1 herein- probate applicant presented his affidavit in the nature of examination-in-Chief and along with his affidavit, he produced several documents including photocopy of the partition deed, allegedly recorded between deceased Baburao and Rama Zendu i.e. father of Respondent No.1. Respondent No.1 also requested the Court to exhibit the document and admit the same in evidence.
5 An application came to be presented on behalf of the petitioner at Exhibit-28 contending therein that the deed of partition, which is in respect of right, title and interest in the immovable property, valued more than Rs.100/-, is compulsorily required to be registered under the provisions of Section 17 of the Registration Act, 1908 and same cannot be received in evidence, as per the provisions of Section 49 of the Registration Act, 1908. It is also contended in the application that the document is insufficiently stamped and as such, in view of provisions of Bombay Stamp Act, 1958, same is required to be impounded. The petitioner, therefore, requested the trial Court to issue directions to the probate applicant - Respondent No.1 herein to produce original copy of the alleged partition deed dated 27.08.1990 and after receipt of the document, the said document be ordered to be impounded and sent to the District Collector of Stamps for necessary action and till such exercise is completed, hearing of the application be deferred.
6 The application was opposed by Respondent No.1 - probate applicant by presenting his say. It is contended that the application tendered by petitioner herein requesting the Court to grant probate is not founded on the partition deed. It is stated that if the petitioner herein is desirous of challenging the partition deed, she has remedy available for raising challenge to the partition deed by presenting a separate suit. The copy of the document placed on record, being photo copy of the original partition deed, need not be impounded.
7 The trial Court, considering rival contentions raised by the parties, was pleased to reject the application tendered by petitioner herein in view of the order passed on 13.08.2010.
8 It is vehemently contended by the Counsel appearing for the petitioner that the partition deed, being in respect of creation of right, title and interest in the immovable property, valued more than Rs.100/-, is compulsorily required to be registered. Once existence of such document is brought to the notice of the Court, it is the duty of the Court to direct the applicant before the Court to place on record the original document and further to impound the same for recovery of necessary stamp duty and penalty, as contemplated by Bombay Stamp Act, 1958. It is contended that the question, whether the application is founded on the document or not is immaterial. It is the duty cast upon the Court to pass appropriate order to safeguard larger interest of the State relating to generation of revenue and to prevent avoidance of stamp duty. It is contended that the logic applied by the Court that a copy of the document is not required to be impounded , is erroneous and it is imperative for the trial Court to issue directions, as requested by the petitioner. Reliance is placed on the judgment in the matter of M/s Deepak Corporation v. Pushpa Prahlad Nanderjog, reported in 1995 (1) Bom.C.R. 452. The question, that was posed before the Court was, as to whether the Court, before whom an inadequately stamped document had been produced for modification of the decree passed by it earlier, can be restrained from impounding the same under Section 33 of the Bombay Stamp Act, by the concerned party by withdrawing the application itself with which the said document had been produced. The answer to the question, according to the Court, in clear terms, is in the negative. It is held that a duty has been cast on the authority or the Court to impound a document under Section 33 if any such document, which is inadequately stamped, is produced before it to be acted upon and that duty does not come to an end on withdrawal of the application by the party liable to pay additional duty and penalty.
9 A reference is also made to a judgment of the Apex Court in the matter of S.Kaladevi v. V.R.Somasundaram & others, reported in 2010 (5) Mh.L.J. 320. The Apex Court, in para 12 of the judgment, has observed thus:
"12 Recently in the case of K.B.Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189: "......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu and Kashmir; the form Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it......"
This Court then culled out the following principles :-
"1 A document required to be registered, if unregistered is not admissible into evidence under section 49 of the Registration Act.
2 Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to section 49 of the Registration Act.
3 A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4 A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5 If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance."
Relying on the aforesaid judgment, it is contended that Respondent No.1 herein - probate applicant cannot escape the liability of payment of stamp duty and penalty under the specious ground that the transaction recorded in the partition deed is a collateral transaction and no issue of vital determination is involved in the application. It is contended that a collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 10 The application tendered to the trial Court is under Section 276 of the Indian Succession Act, requesting the Court to grant probate in respect of the will deed executed by deceased Baburao on 25.04.2001. While considering the issue before the trial Court, it is required to be examined as to whether the will deed is proved in accordance with the provisions of the Evidence Act and whether same is properly executed by deceased and is free from all suspicious circumstances. A reference can be made to a judgment in the matter of Vatsala Srinivasan v. Narisimha Raghunathan, since deceased, through Smt.Shyamala Raghunathan, reported in 2011 (2) Mh.L.J. 953. It is observed by the Division Bench of this Court, in paragraph no.16 of the judgment, thus:
"16 The Court in a proceeding for probate, it is well settled, does not decide questions of title. The Court is in probate proceedings only concerned with the issue as to whether the document set forth has been duly executed by the testator; and whether the testator was at the time of the execution of the document in a sound and disposing state of mind. The testamentary court, does not determine questions of ownership of or title to the property but whether the testator has executed his testamentary instrument voluntarily and with a free will."
11 The only issue that falls for consideration before the trial Court is, as to whether the document has been duly executed by the testator and whether the testator, at the time of execution of the document, is in sound and disposing state of mind and that the will deed is free from all suspicious circumstances. The Court, while dealing with the issue of grant of succession certificate, is not required to enter upon the questions as regards ownership or title to the property. Thus, the issue in respect of validity or otherwise of the partition deed, copy of which is placed on record by Respondent No.1 herein - probate applicant, is not required to be gone into by the trial Court. Apart from this aspect, the document, which is placed on record is a photocopy of the partition deed and as such, the provisions relating to impounding of the document, incorporated in Bombay Stamp Act, are not attracted. It is no doubt true that an instrument of partition is a document which falls in the category of documents of which registration is compulsory, as provided under Section 17 of the Registration Act, 1908. Section 17 provides for the list of documents, which require registration and Section 17(1)(b) recites thus:
17 Documents of which registration is compulsory - (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) ..... ..... ..... ..... ..... ..... .....
(b) other non-testamentary instruments 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 and upwards, to or in immovable property;
12 The partition deed falls within the category of the documents prescribed by Section 17(1)(b). The effect of non registration of the document, required to be registered, is provided in Section 49 of the Registration Act and those are that –
(a) it shall not affect any immovable property comprised therein;
(b) confer any power to adopt;
(c) be received as evidence of any transaction affecting such property or conferring such power. The term "instrument" is defined in Section 2(14) of the Indian Stamp Act, 1899, as to include every document, by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded. Section 2 (l) of the Bombay Stamp Act, 1958, defines the "instrument" as: 2(l) "instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;
Explanation - The term "document" also includes any electronic record as defined in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000.
13 Section 33 of the Bombay Stamp Act, 1958, relates to examination and impounding of the instruments. 33 Examination and impounding of instruments -
(1) [Subject to the provisions of section 32-A, every person] having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an officer of police [or any other officer, empowered by law to investigate offences under any law for the time being in force,] before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, impound the same [irrespective whether the instrument is or is not valid in law].
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law for the time being in force in the State when such instrument was executed or first executed.
It is provided in Section 34 of the Bombay Stamp Act that the instrument, which is not duly stamped is inadmissible in evidence.
14 It is to be noted that a document, which is sufficiently stamped and registered in accordance with the provisions of the Registration Act, 1908, is admissible in evidence. However, the para meters, which are applicable to the documents in respect of its admissibility as well as impounding thereof, cannot be made applicable to the copy, which is sought to be placed on record. The judgment rendered by the Apex Court in the matter of Hariom Agrawal v. Prakash Chand Malviya, reported in 2007 AIR SCW 6368 can be quoted below for the purpose of guidance in that regard. It is recorded in clear terms by the Apex Court that the provisions relating to impounding for payment of stamp duty and penalty are related only to the "instrument" and there is no scope for inclusion of "copy of the document" for the purposes of the Act. The copy of the instrument cannot be validated by impounding and cannot be admitted as secondary evidence under the Act. In paragraph 8 of the judgment, it is recorded thus:
"8 It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899. 15 A reference can also be made to a judgment in the matter of Jupadi Kesava Rao v. Pulavarthi Venkata Subbarao and others, reported in AIR 1971 SC 1070, Paragraph 13 is relevant for consideration:
13 The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of its covered by Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act."
16 It can, thus, be concluded that photocopy of the document cannot be termed as an "instrument" within the meaning of Section 2(14) of the Indian Stamp Act, 1899 or Section 2(l) of the Bombay Stamp Act, 1958 and the provisions of Section 33 of the Bombay Stamp Act cannot be made applicable in respect of copy of the document.
17 It is needless to say that the trial Court has adopted a correct approach in the matter and was justified in turning down the request made by the petitioner herein. The trial Court would surely consider the provisions relating to admissibility of the document, contained in relevant Acts, applicable to the copy of a document and would render appropriate decision.
18 Considering the limited scope of inquiry by the trial Court while dealing with application for grant of probate, determination of the question relating to entitlement of deceased to the property, in reference to the document placed on record by the probate applicant - Respondent No.1 herein, is surely of a secondary character. The trial Court, in the facts and circumstances, was justified in rejecting the application tendered by the petitioner herein.
19 For the reasons set out above, I am of the opinion that no interference is called for in the impugned order passed by the trial Court. Revision Application is devoid of substance.
20 In the result, Civil Revision Application stands dismissed. Rule discharged. No costs.