LexRAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES versus BAJRANG LAL & ORS.
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- • - / 9 63 RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES v. BAJRANG LAL & ORS. May 5, 1978 [Y. V. CHANDRACHUD, CJ., D. A. DESAI AND R. S. PATHAK, JJ.J Duty of Court to consider preliniinary objection as to ad111issibi/i1y of a docurnent in ei·idence-Explained. Stan1p Act, Sections 33, 35, 36-Scope of. Hl!reditary office of Shebait enjoyed by a person, whether 1novable or c· immovable property-Whether the deed of Rift of such a right requires regis- tration.-Tlie office being iln1norable property in the instant case, the gift deed' i.y inadmissible in ci·idence for want of registration. The plaintiff-appellant, \vho died pending the appeal sought a declaratioa that he was entitled -to a right of v.:orship by turn (called Osra) for 10 days in a circuit of 18 months in the temple of Kalyanji Maharaj at village Diggi District. Tonk, R_ajasthan u•1der the Will Ext. dated 22 ·September, 1961 cxe· Di cuted by deceased Mst. Acharaj, ·wife of Onk,ar. The Trial Court did not try the preliminary objection. when it was raised at the time of the trial; but ma.de a note : "Objected. A!lowed subj'ect to objection". The Cou:t rejec::ed it at 'the time of arguments taking recourse to Section 36 of the Stamp Act. On the question of registration it held that as the "turn of worship W<J-s a movable property", if did not require compulsory registration and decreed the suit. In appecll the first Appellate Court reversed the Judgment, inter aria. hol_~ing that the document Ext I wa5 a gift and as it involved ~ift of immo- vable property the document was inadmissible in evid~nce both on the ground E·. that it is not duly stamped and for want of registration. The Plaintiff's second ~1p_peal before the High Court failed. Qismissing the appeal by special leave, the Court l-lELO_ : 1. \Vhen a document is tendered in evid.ence by the plaintiff while in witness box and the defendant raises an objection that the document is in- admissible in evidence as it Vias not duly stamped and for want of Registra- F t_iQn, it is obligatory upon the Trial Judge to apply his mind to the objection raised and to decide the objection according to law. TenJency sometimes is lo postpone the decison to avoid interruption in the process of recording evidence and. therefore. a very convenient device is restored to, of marking th~ dpc_ument in evid.ence 'subject to objection.' This. however, would not mean that the objection that the instrument is not duly stamped ·is jUCHcially decided; it is merely postponed. In such a situation at a later stage before the suit is finitlly dispQsed of it would non-the·less be obligntory upon the G Court to decide the objection, If; after applying its mind to the rival contentro,ns the tri~l court admits a document in eviden):;e, s. 36- of tQ.6 St<:1.µtp Act wou)d, come. into play and such admission cannot be called in question at any stage of the sarne &ui~ or pro~eeding on the ground t'ba,t the instrument h&S not been duly stamped. The Court, and of hecessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, as to judicially determine the matter as soor;i .as .the document is ~ende.:re4 in evidence anµ before it is marked as an e~h1b1t 10 the case an~ w~ere ~ docun1ent has been inadvertently . admitted H ~1thout the court applying its mind as to the question of admissibility, the 1n6tr-Um.e-Jl,t could1 not be saidr to have been admitted in evidence With a view to attracting s. 36. [966 C·G] SUPREME COURT REPORTS [1978] 3 S.C.R. A In the instant case, the endoI'Sement made by the 1earned trial judge that D "objected, allowed subject to objection", clearly indicates that when the objec~ tion was raised it was not judicially determined and the document was merely tent<itively marked and in such a si'uation s. 36 would not be Jttracted. lY66 G-H] Javar Chand v. Pukhraj Surana; A.LR. 1961 S.C. 1655. 2. Undoubtedly, if .a person having by law a'uthority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section 35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither paid the duty nor the penalty till to
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