"Illu Vikraya Dasthaveju Pramana Patram" i.e. house sale deed affidavit. can not be marked as an affidavit or as a mark of past sale transaction = Unless the defects under the Indian Stamp Act and the Indian Registration Act are rectified by way of regularisation under Section 5 A of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971, provided such white paper documents were prior to the cut-off date of the amendment therein and these documents are presented within the prescribed time before the revenue authorities for regularisation. The disputed document styled as sale affidavit intends to record a past transaction in it. It is stated to have been executed on 01.11.1994 on stamp paper worth Rs.50/-. When the original document dated 13.06.1994 is admittedly unstamped, any further document which is in the nature of record of a previous transaction has to be stamped with the same stamp duty payable under the original document. Therefore, when the plaintiff relied upon the disputed document dated 01.11.1994 styled as sale deed affidavit, it requires stamp duty and penalty as the original document dated 13.06.1994, since the disputed document intends to record the earlier transaction dated 13.06.1994 and since it contains all terms of the original white paper sale deed dated 13.06.1994. In that view of the matter, Section 35 of the Indian Stamp Act comes in the way of marking the disputed document without payment of deficit stamp duty and penalty as a conveyance. Even if deficit stamp duty and penalty are paid on the disputed document, it can be marked in evidence only for collateral purpose under the proviso to Section 49 of the Indian Registration Act and it cannot be received for proof of terms and contents of that document, since it is a document which is compulsorily registerable under Section 17 of the Indian Registration Act. This is not an affidavit given by a party for the purpose of the pending suit or interlocutory proceeding, but it is a document which is stated to have been given on 01.11.1994 recording earlier transaction dated 13.06.1994. This is not an affidavit deposed by the deponent for the purpose of the suit. In interlocutory proceedings, affidavits are received for the purpose of proving a fact or a document filed in that suit or proceeding. Since this affidavit intends to prove earlier white paper sale deed dated 13.06.1994 and its terms, this affidavit cannot be received in evidence to prove terms of an inadmissible document which is a white paper sale deed. When the original white paper document dated 13.06.1994 is not filed in the suit or in the proceeding pending in the lower court, the question of receiving the disputed document dated 01.11.1994 to prove the earlier transaction does not arise, unless the disputed document dated 01.11.1994 is properly stamped as a conveyance under the Indian Stamp Act. Secondly, the disputed document dated 01.11.1994 is totally inadmissible even as an affidavit of an earlier transaction, since affidavit of a living person is no evidence as it is hit by Section 32 of the Indian Evidence Act, the only exception being filing an affidavit in a pending suit during interlocutory proceedings as provided under Order XIX CPC. In Burra Anita v. Elagari Mallavva 1 of this Court, the learned Judge held that objection as to insufficiency of stamp duty paid on the document can be raised not only during trial but also in interlocutory proceedings.

published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10206
THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

C.R.P. No.116 OF 2013

31-07-2013.

Uppula Ramesh ..PETITIONER    

Elagandula Harinath and others  ..RESPONDENTs  

Counsel for the petitioner: Sri B.Narsimha Sarma

Counsel for the respondent Nos.1 to 3:  None
Counsel for the respondent No.4:   Sri Y.Rama Rao

<Gist:

>Head Note:

?CITATIONS:

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              

CIVIL REVISION PETITION No.116 OF 2013    


JUDGMENT:  


This revision petition is filed against order of the lower court by which
objection of the third defendant under Section 35 of the Indian Stamp Act for
marking a document was overruled by way of dismissal of the said petition.

The disputed document is styled as
"Illu Vikraya Dasthaveju Pramana Patram" i.e.
house sale deed affidavit. 
As observed by the lower court, it is true
nomenclature of the document is not the criterion but contents of the said
document are relevant in determining admissibility of the said document without
payment of further stamp duty and penalty.
The said disputed document is stated
to be engrossed on stamp paper worth Rs.50/- and it was notarised by a notary
public.
The said document reads that executant of the said document earlier
executed a simple sale deed () on 13.06.1994 for the property in question under
which the plaintiff purchased the same for consideration of Rs.1,25,000/-. 
 It
further reads that the vendor confirms the said sale by way of the disputed
document.  
Virtually the document is stated to be a record of past transaction
between the plaintiff and his vendor for the suit property.  
The said document was sought to be marked during interlocutory proceedings for interim injunction.
In Burra Anita v. Elagari Mallavva 1 of this Court, 
the learned Judge held that
objection as to insufficiency of stamp duty paid on the document can be raised not only during trial but also in interlocutory proceedings.  
The lower court
took that document as a mere affidavit and not a conveyance and held that the said document does not require any stamp duty. 

As can be seen from contents of the disputed document,
the previous sale deed
dated 13.06.1994 is not evidenced by a valid conveyance as per the provisions of
Section 54 of the Transfer of Property Act coupled with provisions of the Indian
Stamp Act and the Indian Registration Act.  
The previous document is styled as a simple sale deed, in the sense, a white paper document without stamp duty and registration.  
The law does not recognise execution of any such white paper
documents conveying title relating to any property from one person to another
person.  
It is contended by the respondents' counsel that in these parts of the
state in Telangana area it is practice of the parties to enter into such
documents.  
The alleged practice has no sanction in law.  
Such documents, even if true, will not convey any title to the alleged purchaser thereunder.  
Unless
the defects under the Indian Stamp Act and the Indian Registration Act are
rectified by way of regularisation under Section 5 A of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971, provided such white paper  documents were prior to the cut-off date of the amendment therein and these documents are presented within the prescribed time before the revenue
authorities for regularisation.

The disputed document styled as sale affidavit intends to record a past
transaction in it.  
It is stated to have been executed on 01.11.1994 on stamp
paper worth Rs.50/-.  
When the original document dated 13.06.1994 is admittedly
unstamped, any further document which is in the nature of record of a previous
transaction has to be stamped with the same stamp duty payable under the 
original document.   
Therefore, when the plaintiff relied upon the disputed
document dated 01.11.1994 styled as sale deed affidavit, it requires stamp duty
and penalty as the original document dated 13.06.1994, since the disputed
document intends to record the earlier transaction dated 13.06.1994 and since it
contains all terms of the original white paper sale deed dated 13.06.1994.  
In
that view of the matter, Section 35 of the Indian Stamp Act comes in the way of
marking the disputed document without payment of deficit stamp duty and penalty
as a conveyance.  
Even if deficit stamp duty and penalty are paid on the
disputed document, it can be marked in evidence only for collateral purpose
under the proviso to Section 49 of the Indian Registration Act and it cannot be
received for proof of terms and contents of that document, since it is a
document which is compulsorily registerable under Section 17 of the Indian
Registration Act.

It is contended by the respondents' counsel that the document is liable to be
marked as an affidavit in interlocutory proceedings like any other affidavit.
This is not an affidavit given by a party for the purpose of the pending suit or interlocutory proceeding, but it is a document which is stated to have been given on 01.11.1994 recording earlier transaction dated 13.06.1994.  
This is not
an affidavit deposed by the deponent for the purpose of the suit. In interlocutory proceedings, affidavits are received for the purpose of proving a fact or a document filed in that suit or proceeding.  
Since this affidavit intends to prove earlier white paper sale deed dated 13.06.1994 and its terms, this affidavit cannot be received in evidence to prove terms of an inadmissible document which is a white paper sale deed.  
When the original white paper
document dated 13.06.1994 is not filed in the suit or in the proceeding pending in the lower court, the question of receiving the disputed document dated 01.11.1994 to prove the earlier transaction does not arise, unless the disputed document dated 01.11.1994 is properly stamped as a conveyance under the Indian Stamp Act. 

Secondly, the disputed document dated 01.11.1994 is totally inadmissible even as an affidavit of an earlier transaction, since affidavit of a living person is no evidence as it is hit by Section 32 of the Indian Evidence Act, the only exception being filing an affidavit in a pending suit during interlocutory proceedings as provided under Order XIX CPC. 

Therefore, for all the above reasons, the impugned order passed by the lower
court is erroneous in law.

In the result, the revision petition is allowed setting aside the order passed
by the lower court and directing the lower court to mark the disputed document
dated 01.11.1994 only on payment of deficit stamp duty and penalty as evidence
of conveyance, and further to mark the same for collateral purpose and not for
proving terms and contents of the said document.
       
______________________________    
SAMUDRALA GOVINDARAJULU, J        
31-07-2013