Order XXI Rule 64 C.P.C. If by Sale of a Portion or one among other Items of Property the Decree Debt would be Wiped off,
Court should not order Sale of Whole Property
Decisions known to all but Consolidated for Easy Reference

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. There is a duty cast upon the Court under Order XXI Rule 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of court which cannot be ignored.

AIR 1990 SC 119 (Ambati Naria Sayya v. M.Subba Rao).

1996 (1) KLT 319 (Parvathy Antharjajam v. Indian Bank).

(1994) 1 SCC 131 at 150 (para.17) (Deshbandhu Gupta v. N.L. Anand and Rajinder Singh).

2. Only such of property as is necessary to satisfy debt need be sold even under SARFAESI Act. This is particularly so, since there is nothing inconsistent in that regard in SARFAESI Act under which sale is proposed to be conducted by Bank.

2013 (2) KLT 944 = 2013 (3) KLJ 43 = ILR 2013 (2) Ker.961 (Anilkumar v. Catholic Syrian Bank Ltd.)

2015 (2) KLT SN 77 (C.No. 87) = 2014 (4) KLJ 30 = ILR 2015 (2) Ker.182 (Augusty v. Catholic Syrian Bank Ltd.).

1990 (1) KLT SN 28 (C.No.28) SC (Narasayya v. Subba Rao).

1990 (2) KLT 956 = 1990 (2) KLJ 889 (Appukuttan v. Janardhanan).

1995 (1) KLJ 495 = ILR 1995 (2) Ker.406 (Karambil Ice and Cold Storage Co. v. S.B.T.)

3. That portion of property ‘necessary to satisfy the decree’ indicates that portion of property which would be sufficient to satisfy the decree is only to be sold. This is not just a discretion but an obligation on the part of the court - sale without examining this aspect is illegal.

2006 (1) KLT 926 (SC) = AIR 2006 SC 1456 (Balakrishnan v. Malaiyandi Konar).

4. Under Order XXI Rule 64 it is mandatory for the court to examine whether whole of the attached property of judgment debtor or a portion alone is to be sold to satisfy decree.

 2009 (2) KLT 30 (George v. Shirley Varkey).

5. Where the amount specified in sale proclamation, for the recovery of which the sale is ordered is realized by sale of certain items, the sale of other items should be stopped. If they are sold, the sale would be vitiated and set aside even if no objection made by judgment debtor.

AIR 1977 SC 1789 (Takkaseela v. Padmavathamma).

6. It is not necessary to sell the entire attached portion if decree can be satisfied by sale of portion of it and not vice versa. It cannot be the intention of the legislature that no sale can be made if valuation of property is not sufficient to satisfy the decree.

AIR 2005 All. 270 (Habib Sheikh v. State of U.P.).

7. Under Order XXI Rule 64 a duty is cast on the court. Thus where the court did not apply its mind, the court sale was one without jurisdiction. If it was one without jurisdiction and nullity, application can be made only under S.47 and not under
Order XXI Rule 90.

(1998) 122 Mad.LW 550 (Subramaniyan v. Sadaya Padayachi).

8. The rise in property rates after confirmation of sale is not reason enough to set aside an otherwise valid sale.

2007 AIHC 1714 (ICICI Ltd. v. HICO Products Ltd.).

9. The court cannot, after the sale has been confirmed, go into the question of legality of sale for violation of Rule 64.

2006 (1) KLT 926 (SC) = AIR 2006 SC 1458 (Balakrishnan v. Malaiyandi Konar).

Timing of Impounding of Insufficiently Stamped Instruments;
An Analysis of the Conflicting Judicial Views and Some Incidental Matters

 (By Nizam Azeez Sait, Advocate, Alappuzha)

As regards the interpretation of Section 33 of the Kerala Stamp Act 1959, which deals with the examination and impounding of insufficiently stamped instruments, different benches of the High Court of Kerala have come up with different views with respect the timing/stage of such impounding by a Court, which requires an analysis on the touchstone of the views expressed and the interpretation put on the above Section 33 by the Supreme Court in its judgments having precedential significance.

Relevant portions of Sections 33, 34 and 35 of the Kerala Stamp Act 1959 read as follows:

Section 33: Examination and impounding of instruments

 (1) 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, 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.

(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 in force in the State when such instrument was executed or first executed:

      Provided that —

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding underChapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

(Chapter xii of the Code of 1898, relates to Disputes as to Immovable Property and Chapter xxxvi…relates to Maintenance of Wives and Children)

Section 34: Instrument not duly stamped inadmissible in evidence,etc.-

No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that —

(a) any such instrument not being an instrument chargeable with a duty of twenty paise or less than twenty paise 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 ten rupees or, when ten times the amount of the proper duty or deficient portion thereof exceeds ten rupees, of a sum equal to twenty times such duty or portion;

Section 35: Admission of instrument where not to be questioned.-

Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 59, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

 Judgments Holding that Mere Production of the Instrument in Contra Distinction to ‘Tender the Document in Evidence’ is not Sufficient to Impound the Same

Thara Thomas v. Narayanan Nair(1989 (1) KLT SN 6 (C.No.10) : 1989 (1) KLJ 16) Radhakrishna Menon J:

In this case the court below had impounded a document produced along with the plaint construing it as a bond and finding it to be insufficiently stamped. The Plaintiff/Revision Petitioner had not yet taken any steps to tender the same in evidence. The High Court set aside the impugned order, observing as quoted hereunder:

“The words in the Section that require special mention are “is produced or comes in the performance of his functions.” The insufficiently stamped document in order to be impounded under S.33 therefore must be one which had been produced or had come in the performance of the functions of the persons or authorities mentioned in the
sub-section. The phrase “in the performance of his functions” in the context is meaningful. The document, in order to find that it has been produced or has come in the performance of the functions of the authority concerned, must be one, the party concerned had taken steps to tender in evidence. A mere production of the document cannot therefore be said to be a production within the meaning of that phrase, because the party who has produced the document, has every right to take the same back before steps to tender it formally in evidence are taken.” The Court further stated:

“The cumulative effect of these Sections (33 & 34) is that the question as to whether or not an instrument chargeable with duty, has however, been insufficiently stamped, in so far as court proceedings or proceedings akin thereto are concerned, comes up for consideration, only when the party concerned takes steps to tender the said document in evidence. The court has then and only then the power to consider whether the document has been duly stamped.”

For arriving at the above conclusion the Court also relied on the Lahore High Court Judgments in Ujjal Singh Sunder Singh v. Ahmed Yer Khan (AIR 1936 Lahore 985) and Harjimal & Sons v. H.S. Palta & Sons (AIR 1947 Lahore 319). Uthuppan Abraham v. State of Kerala (1997 (2) KLT 475):

In this case the defendant/petitioner, produced before the Munsiff’s Court a document styled as an assignment deed, which was insufficiently stamped. The document was neither tendered in evidence nor relied on. Nevertheless the Munsiff’s Court impounded the document and passed an order directing payment of deficient stamp duty along with the prescribed penalty and the Collector was directed to realise the above amount. The High Court set aside the order observing as below:

“Only the document which is either relied on by the parties for proving the case or admitted in evidence by marking as Exhibit is liable to be impounded by the Court. Merely because a document was filed in Court (and when the same was not either proved in evidence or acted upon by any of the parties) the Munsiff cannot order impounding the document or imposing any penalty for insufficiency of the stamp duty. The principle seems to be that a party to the litigation cannot escape the liability of payment of the stamp duty under the law whenever he wants to rely on the document in order to prove his case.”

In coming to the above conclusion the court relied on the following observation of Justice Chandrasekhara Menon in Chanda Pillai v. Munsiff, Tiruvalla & Ors. (1975 KLT 753):

“As long as an instrument is not admitted in evidence, the Munsiff though he may have impounded the same has no jurisdiction to levy any penalty or charge any duty on the same. The question whether the Munsiff should not under sub-s. (2) of S.37 by which every person impounding an instrument has to send it in original to the Collector, depends upon the answer to the question whether the case is one which can come within the description of every other case mentioned therein. Every other case means every case other than the cases mentioned in sub-s.(1) of S.37. Among cases mentioned therein is the case of a person impounding an instrument under S.33 who has by law authority to receive evidence and admits such instrument in evidence upon payment of penalty as provided by the proviso to S.34. It is only when the case is different from the one mentioned therein that an occasion will arise for a Civil Court to act under sub-s.(2). Ordinarily, the duty or power of assessing the amount of stamp duty or collecting stamp duty and penalties is invested by the Act in the Collector. The proviso to S.34 invests courts with the special jurisdiction of adjudicating upon stamp duty and imposing penalty in certain cases and those are cases where a party to litigation before the court tenders a document in evidence. In the instant case, as the documents have not been admitted in evidence no question of imposition of stamp duty by the Munsiff arises. He could have acted only under S.37(2) by which he is to send the documents to the Collector who then can proceed to stamp the instruments concerned and collect the required duty and penalty if any from the person or persons who are liable to pay the same.”

It is submitted that in “Uthuppan Abraham” the Court went wrong in observing that “the document……..admitted in evidence by marking as Exhibit is liable to be impounded by the Court”. A conjoint reading of Sections 33, 34 and 35 makes it abundantly clear that the stage of impounding comes prior to the marking of the document as exhibit/admitting the document in evidence. Once the document is admitted in evidence, Section 35 comes into operation and the order admitting the document in evidence cannot be reviewed and the document cannot be impounded thereafter. The issue has been dealt with, in detail, by a 4 Judges Bench of the Supreme Court in Javer Chand & Ors. v. Pukraj Surana (AIR 1961 SC 1655) and the court categorically held with respect to the issue of sufficiency of stamp duty, that: “Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction”.

In Chanda Pillai v. Munsiff, Tiruvalla & Ors. (supra), the court was dealing with the procedure to be followed once the instrument is impounded. Interpreting the clauses in Section 37 the court rightly held that, when the impounded document is not admitted in evidence on payment of stamp duty and penalty as provided in the proviso to Section 34, the court cannot issue a direction for imposition and realization of stamp duty and penalty. The said power belongs to the realm of the Collector u/S.39 of the Stamp Act. As per S.37(2) the Court merely has to send the original instrument to the Collector.

Joseph Vilangadan v. Agma Techno Products Ltd.(2012 (2) KLT 128) -
S.S.Satheesachandran, J.

In this case the Defendant/Petitioner produced a copy of the lease deed containing an Arbitration clause and objected the jurisdiction of the court to entertain the suit, invoking Section8 of the Arbitration and Conciliation Act, 1996. Later as per the direction of the court original lease deed was produced. The Munsiff’s Court after examining the original lease agreement taking note that it had not been sufficiently stamped, found that a stamp duty and penalty of `5,43,000/- is due for validating that document, and directed to pay such sum within the time fixed. Since such payment was not made, the document was ordered to be impounded and sent over to the District Collector for realisation of the deficit stamp duty and penalty. The High Court set aside the said order interpreting Section 34 of the Stamp Act, holding that, the Court has to look into the question whether the instrument is properly stamped or not, only at the stage when it is tendered in evidence.

The Court relied on the Supreme Court Judgment in Bharat Sewa Sansthan v.
U. P. Electronic Corporation Ltd.,AIR 2007 SC 2961 : (2007) 7 SCC 737 and observed:

 “In the context, it is also to be pointed out that for the purpose of an enquiry under S.8(1) of the Act, the original agreement containing the arbitration clause as such need not be produced, nor be insisted upon. A copy of the agreement, if it is not disputed by both sides, can be looked into and appropriate decision can be taken in an enquiry under S.8(1) of the Act. The Apex Court in Bharat Sewa Sansthan v. U. P. Electronic Corpn. Ltd., considering the aforesaid question in paragraph 21 of that case, has held that photo copy of the lease agreement could be taken on record under S.8(1) of the Act for ascertaining the existence of an arbitration clause. Scope of enquiry canvassed for in such a case is very much limited as to the only question to be gone into is whether there is an arbitration clause in the agreement, governing the parties. Looking into the original or photo copy of the agreement having regard to the plaint allegations, a decision under S.8 of the Act has to be taken in such case, and in doing so, the Court is not admitting the document in evidence or not even acting on it, as contemplated under S.34 of the Kerala Stamp Act.”

Curative Provision in the Proviso to Section 34 of the Stamp Act is not Applicable to Copies of the Instrument

In the context of the discussions herein, incidentally, we may look into the application of the curative provision in S. 34 of the Kerala Stamp Act to copies of the Instrument tendered in evidence. It is well settled that the Proviso to Section 34 enabling the court to validate and receive in evidence an insufficiently stamped instrument on payment of the deficient stamp duty along with the prescribed penalty, has no application when only a copy of the document is produced or other secondary evidence is offered. The curative provision applies only when the original instrument is tendered in evidence. In this regard after a thorough analysis of S.33(1), S.35 and S.36 of the Central Stamp Act and S.63 of the Indian Evidence Act and the case laws in this regard, the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao & Ors. ((AIR 1971 SC 1070): (1971) 1 SCC 545) enunciated the law on the point in the following words:

“The first limb of S.35 (corresponding to S. 34 of the Kerala Stamp Act) 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 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 it covered by S.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. S.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 S.35. ‘Instrument’ is defined in S.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.”

See also, Hariom Agrawal v. Prakash Chand Malviya (2007 (4) KLT SN 67 (C.No. 75)SC =AIR 2008 SC 166 : (2007) 8 SCC 514).

To put it simply the law does not provide for validation of insufficiency of stamp of lost instruments by payment of penalty and thereby shuts out secondary evidence altogether in such cases. It is submitted that the law in this regard appears to be harsh, technical and unjust and needs a relook by the lawmakers. The curative provision should be extended to copies also, when copies are otherwise admissible as secondary evidence.

Judgments Holding that Mere Production of the Insufficiently Stamped Instrument will Entitle the Court to Impound the Same.

Asokan v. Dy.Collector :1995 (2) KLT 292. M. M.Pareed Pillay, C. J. & P. Shan

In this case, a bond executed by the petitioner (before the High Court) was produced before the Sub Court by the plaintiff in a suit in which the petitioner was not a party. The Court impounded the Instrument and sent the same to the Collector for realisation of stamp duty and p`enalty. The Petitioner assailed the order inter alia on the ground that he did not produce the document. The Division Bench dismissed the petition holding as under:

 “If an instrument is not duly stamped the executant cannot be heard to contend that it was not produced by him before any authority and so he is not liable under the Act when it is produced by a third party before the Court. Whenever the infraction of the Act is detected primary liability of the executant of the instrument cannot be shelved for the reason that he never produced it before the Court. Court’s power to impound an instrument cannot be denied on the ground that the parties to the instrument are not before the Court. From a reading of S.33(1) it can be discerned that whenever an insufficiently stamped instrument comes to the notice of the Court it can impound the same....He cannot be absolved of the liability under the Act merely on the ground that he was not the person who produced the document before the Court. His liability is not extinguished for the reason that he did not have occasion to present it before any authority.”

Mohanan v. M.A.C.T. Moovatupuzha(2005 (4) KLT 273)

In this case the Motor Accidents Claims Tribunal impounded an agreement of sale of a vehicle holding it to be insufficiently stamped and liable to be stamped as a conveyance under Article 21 of the Stamp Act. The Petitioner contended that the document was only produced along with the list of documents and therefore ought not to have been impounded. In support of the said proposition the Petitioner relied on the above referred Thara Thomas andUthuppan Abraham. The Court rejected the contention and held as under:

“I am afraid, the legal position is not correctly applied in the above two cases. The whole purpose of the provisions under Chap.4 as already referred to above is to check the evasion of stamp duty. The petitioner produced certain documents before the Tribunal. True the same was not marked and not tendered in evidence. But the document forms part of the documents produced in court. On such production, the Tribunal (court) notices the insufficiency of stamp. The Act has conferred power on the authority to examine the documents produced before it or brought to its notice in the performance of its official duties and see whether those documents are properly stamped. No restriction whatsoever is discernible under S.33 that only those documents which are proved in evidence or relied on by the parties alone can be impounded.”

The Court heavily relied on and quoted from the above referred Division Bench judgment in Asokan v. Dy.Collector and ultimately held that “the decisions in Thara Thomas’s case (supra) and Uthuppan Abraham’s case (supra)are no more good law in view of the Bench decision of this Court in Asokan’s case (supra).”

Exposition of the Correct Law on the Point by the Supreme Court;

Government of Uttar Pradesh & Ors. v. Raja Mohammed Amir Ahmad Khan
AIR 1961 SC 787 (J. L.Kapur, M. Hidayatullah & J. C. Shah, JJ.)

In this case an executed instrument was presented under S.31 of the Stamp Act, before the Collector for his opinion as to the duty chargeable. Certificate U/S. 32 was not sought for. The Collector determined the amount of duty payable and impounded the document, finding it to be insufficiently stamped. The High Court of Allahabad set aside the order by a reasoned judgment, the State preferred appeal before the Supreme Court, the above 3 Judges Bench dismissed the appeal endorsing the reasons enumerated by the High Court and holding as under:

“..if he does not want to proceed any further than seeking the determination of the duty payable then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of S.33 have no application.”

In the process the Court observed:

“The decision of this appeal depends upon the interpretation to be put upon the words “before whom any instrument chargeable.....is produced or comes in the performance of his functions”. Dealing with these words the High Court held:

“With all respect, therefore, we agree that the learned Judges deciding Chuni Lal Burman v. Board of Revenue, U. P. (AIR 1951 All.851), took a correct view of the words “is produced or comes in the performance of his functions” used in S.33 of the Act to mean “the production of the instrument concerned in evidence or for the purpose of placing reliance upon it by one party or the other”.

“The High Court was also of the opinion that the object of paying the whole stamp duty was to get the instrument admitted into evidence or its being acted upon or registered or authenticated as provided in Ss. 32(3), 35, 38(1) and 48(1) of the Stamp Act.”

After addressing the various counter arguments raised by the Counsel for the appellant State, the Supreme Court further confirmed the proposition and held as under:

“The instrument in dispute was not produced as a piece of evidence nor for its being acted upon, e.g., registration, nor for endorsement as under S.32 of the Stamp Act but was merely brought before the Collector for seeking his advise as to what the proper duty would be. The words “every person...before whom any instrument... is produced or comes in the performance of his functions” refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any function in regard to those instruments when they come before them, e.g., registration”.

The Provisions in the Indian Stamp Act, 1899, referred by the Supreme Court are in pari materiawith the provisions of the Kerala Stamp Act. Hence the views of the Supreme Court are as such applicable in the interpretation of the corresponding provisions of the Kerala Stamp Act. Though, the case related to the production of an executed instrument for the opinion of the Collector as to its proper stamp duty u/S.30, the issue called for a comprehensive interpretation of the phrase “is produced or comes in the performance of his functions” in S.33. In doing so the Supreme Court has in no uncertain terms held that the production contemplated when it is before an officer performing judicial functions is production “as evidence of any fact to be proved” and in other cases for being acted upon. The said view is a binding precedent under Article 141 of the Constitution of India.

Later in, District Registrar and Collector v. Canara Bank (2005 (1) KLT SN 38 (C.No.43) SC = (2005) 1 SCC 496 = AIR 2005 SC 186) (R.C. Lahoti, C.J. I. & AshokBhan, J.) the Supreme Court upheld the Judgment of the Andhra Pradesh High Court which struck down the State Amendment which extended the power of inspection under S.73 of the Indian Stamp Act to instruments in the possession of Private Persons also, as ultra vires the provisions of the Indian Stamp Act as also of Art.14 of the Constitution. The High Court inter alia upheld the right to privacy of the citizen and recognized that “The grievance of private persons is that the documents in their possession are sought to be inspected, impounded and levied with duty though they were not tendered in evidence nor produced before any public office.” The Supreme Court in the process of upholding the Judgment of the High Court endorsed its “stamp” of approval on some High Court Judgments holding the view that mere production of an instrument will not entitle impounding the same. The Court observed:

“Powerto impound a document and to recover duty with or without penalty thereon has to be construed strictly and would be sustained only when falling within the four corners and letter of the law. This has been the consistent view of the courts. Illustratively, three decisions may be referred. In Jai Devi v. Gokal Chand (1906 (7) Punj.LR 428 (F.B.)) a document not duly stamped was produced in the court by the plaintiff along with the plaint but the suit came to be dismissed for non prosecution. It was held by the Full Bench that the document annexed with the plaint cannot be said to have been produced in the court in evidence and the court had no jurisdiction to call for the same and impound it. In Munshi Ram v. Harnam Singh (AIR 1934 Lah.637(1)) the suit was compromised on the date of first hearing and decree was passed based on the compromise. The original entry in a bahi was not put in evidence and, therefore, the Special Bench held it was not liable to be impounded. In L.Puran Chand v. Emperor (AIR 1942 Lah.257) the power to impound was sought to be exercised after the decision in the suit and when the document alleged to be not duly stamped had already been directed to be returned as not proved though it was not physically returned. The Special Bench held that the document was not available for being impounded.”

It is submitted that if the Court is permitted to impound the insufficiently stamped instrument on mere production or whenever it comes to its notice and to send the same to the Collector, the curative provision in the proviso to S.34 will become inoperative. That can never be the legislative intent in the scheme of the Act.

Dispute Regarding Stamp Duty is to be Decided Before Proceeding Further.

Incidentally, the question as to whether the Court can relegate decision on objection as to stamp duty to a later stage may be considered here. In Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001 (1) KLT SN 86 (C.No.106) SC =AIR 2001 SC 1158 = (2001) 3 SCC 1), a 3 Judges Bench of the Supreme Court, being deeply disturbed by the heavy consumption of valuable time by the trial courts in deciding on the objections as to the admissibility of evidence, which are raised amidst the trial, laid down that in order to avoid unnecessary delay and to speed up trials the trial courts could relegate such decisions to the stage of the final judgment. But the Supreme Court rightly excluded the application of the above proposition in the cases of objections as to stamp duty. The Court said:

“Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)”

In, Sereefa & Ors. v. Moideen(2012 (2) KLT 115 (S. S.Satheesachandran, J. ), the High Court of Kerala considered the consequence of infraction of the above norm relating to insufficiently stamped instruments. In this suit for money, there was dispute as to whether the suit document was an agreement or a bond. The Munsiff’s Court marked the instrument subject to objection. Later judgment was passed decreeing the suit but subject to a direction that decree shall not be drafted till deficient stamp fee and penalty are paid on the document, which was found to be a bond and not an agreement. In this regard after extensively referring to ‘Bipin Shantilal Panchal v. State of Gujarat and Another’(supra), and observing that the action of the Munsiff was not one without jurisdiction but was an improper exercise of Jurisdiction, the High Court held:

“It is only an improper exercise of jurisdiction not in accordance with the procedure applicable under the Stamp Act with respect to the admissibility of a document insufficiently stamped. Even an insufficiently stamped instrument if admitted by the Court can be acted upon and relief be granted by passing any order or decree. So much so, there was an improper exercise of jurisdiction by the Court in relation to the determination of the sufficiency of the stamp and directions issued how the decree has to be drafted after passing of the judgment, cannot be canvassed by one or the other party to contend that such order or decree is unsustainable.”

Outcome of the above Discussion.

1.   The proposition in Thara Thomas v. Narayanan Nair (1989 (1) KLT SN 6 (C.No.10) =1989 (1) KLJ 16), that, the insufficiently stamped instrument can be impounded by the Court only when it is tendered in evidence is correct and is in line/consonance with the verdict of the three-Judges’-Bench of the Supreme Court in Government of Uttar Pradesh & Ors. v. Raja Mohammed Amir Ahmad Khan (AIR 1961 SC 787 ).

2.   The observation inAsokan v. Dy.Collector (1995 (2) KLT 292),that “whenever an insufficiently stamped instrument comes to the notice of the Court, it can impound the same”, runs counter to the law as laid down by the Supreme Court in“Raja Mohammed Amir Ahmad Khan” and hence is“per incuriam.”

3.   Mohanan v. M.A.C.T. Moovatupuzha (2005 (4) KLT 273), holding “Thara Thomas” as ‘not good law’, relying on ‘Asokan’ is rendered “per incuriam” of the above “Raja Mohammed Amir Ahmad Khan.”

4.   Sections 33 or 34 does not make any distinction as to instruments produced/ tendered in evidence by their executants or by any other persons. Insufficiently stamped instruments can be impounded u/S.33 or validated on payment of duty and the prescribed penalty and admitted in evidence under the proviso to S.34(provided it is otherwise admissible), whether it is produced by the executants or by any other person. On that aspect the decision in “Asokan” holds good. (In this context refer also S.43 of the Kerala Stamp Act).

5.   Curative Provision in the Proviso to Section 34 of the Kerala Stamp Act which enables the Court to admit in evidence insufficiently stamped Instruments on payment of duty and prescribed penalty is applicable only when the original instrument is produced and it does not apply to copies of the Instrument or to other secondary evidence. (See, Hariom Agrawal v. Prakash Chand Malviya, (2007 (4) KLT SN 67 (C.No.75) SC =AIR 2008 SC 166: (2007) 8 SCC 514.)

6.   There is no prohibition under S.49 of the Registration Act, to receive an unregistered document of which the Registration is compulsory under S. 17 of the Registration Act, in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of S.35 of the Stamp Act (corresponding to S. 34 of the Kerala Stamp Act), as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under S.35 of the Stamp Act.(See, Avinash Kumar Chauhan v. Vijaya Krishna Mishra (2009 (1) KLT Suppl. 218 (SC) =(2009) 2 SCC 532 : AIR 2009 SC 1489(S.B. Sinha & Cyriac Joseph, JJ.) & Manohar Kammath v. Rammohan Kammath (1991 (2) KLT 714 (D.B.))

7.   The objection as to stamp duty has to be decided at the time of tendering the instrument in evidence and before proceeding further. (See, Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001 (1) KLT SN 86 (C.No.106) SC =AIR
2001 SC 1158 = (2001) 3 SCC 1).

8.   Tail piece:- It is often reiterated by the Supreme Court that the Stamp Act is not enacted to arm a litigant with a weapon of technicality to defeat the fair case of his opponent. But recently the State in its eagerness to procure more revenue has increased the prescribed penalty in the curative provision in the proviso to S.34 from ‘ten times such duty’ to ‘twenty times such duty’ by an amendment brought in by the Kerala Finance Act, 2013. The said amendment appears to be irrational and has made the curative provision otiose and practically out of reach of a bona fide litigant in most of the instances of insufficiency of stamp duty. The cure has become worse than the disease.

The KumkiTradition

(By P. Deepak, Advocate, High Court of Kerala)

A Full Court Reference that heralds the assumption of office of the newly appointed judges evokes diverse reactions among the lawyer fraternity. For those of the ex officio category it means sitting through an unavoidable two hours of repetitive eulogies maintaining the most solemn expression. For the ambitious few it means inching imperceptibly forward to be seen within the zone of the collegiums’ collective vision. To the many, however, it betokens a late beginning to the day with sufficient time to tide over the spirituous effects of an unrepentant late night on the tiles.

But what really interests everyone is the ‘sitting arrangements’ that follow. Who gets to sit with whom and for how long? In this regard our High Court follows the Kumki tradition consistently whereby the trained and tested seniors take within their fold the untamed and inexperienced new recruits with a view to season them for the long haul ahead. It is a common refrain among the lawyers that this period of apprenticeship either makes or breaks a newly appointed judge and moulds his approach to his job irretrievably. It determines, for instance, whether 11.00 a.m. passes off for 10.15 a.m. or whether the proceedings in the court hall are a monologue or a dialogue.

These early days of internship are also a source of wholesome merriment for the lawyers. Coming as they do from two diverse streams the initial responses of the newly appointed judges are also equally varied. A sense of awe and stupefaction is invariably reflected on the faces of the promotees who find it unable to shake off the servility ingrained over the years by a deeply entrenched feudal order. The fact that their former ‘masters’ have overnight become their ‘brothers’ is something that they simply cannot fathom. On the other hand a judge appointed directly from the bar presents a starkly contrasting picture of having to the manor born. He gives you the impression of a man in a hurry to make up for lost time; galloping on his Rocinante to recompense the unfortunate judicial system which had been deprived of his knightly services on account of some regrettable affair, like the Executive-Judiciary stand-off.

In due course of time a few of the new fledglings do find their feet and they are then packed off to the remote corners of the judicial edifice to dispense justice in the manner trained. Here again an unwritten code comes into play. The ripe and experienced promotees seldom get to venture into the constitutional areas of jurisprudence and are consigned to deal with more of the mundane stuff that they had handled during their stint in the lower echelons of the judicial hierarchy. The high prerogative writs fall to the exclusive lot of the judges directly appointed from the bar. The rationale behind this unwritten code has always escaped me. The deftness with which the writ jurisdiction was handled by a promotee gentleman judge (now retired) who till recently graced Court No: 5 A is still fresh in the memory of the lawyers. At the same time the procedural and technical wrangles that certain bar-judges bring to the constitutionally unfettered frontiers of the writ court defy all imagination. Sometimes, it also so chances that the old and cagey seniors divine that a junior left to find his feet after undergoing the usual period of internship has grown too big for his boots warranting urgent corrective therapy. The inevitable corollary is that the young man is hauled up and made to sit in Division again and the Kumkis get to work on him stifling his ardor for all time.

Coming back to the kumkis; ordinarily, the new recruits continue to sit in Division, playing a dumb second fiddle to the big brother, until such time as a new batch of recruits is enlisted to take their place. This brings into sharp focus the efficacy of an intra-court appeal provided under Section 5 of the Kerala High Court Act, 1958. Far from being a Divisional Court of Correction correcting the orders passed by it in the exercise of the same jurisdiction; the Division Bench, with the all powerful big brother in the saddle, assumes the role of a Court of Error, correcting as it were the order of a subordinate court, with the little brother mutely assenting to the exercise, a veritable anghuhta chhap. In other words, the truth of the biblical proverb ‘Therefore two are better than one, for they may well enjoy the profit of their labour’doesn’t ring with any conviction here.

Is it any wonder then that ‘dissent’ is quite a rare commodity in the High Court of Kerala? For every singular and spirited instance of dissent by a junior judge leading to the constitution of a larger bench (The resolution of the issue relating to the power of the sessions judge to impose a higher variety of life sentence being a glorious such instance) there are innumerable instances of hasty reconstitution of benches to ease out an irksome junior. In such a scenario is it any wonder that the pious hope of Justice Charles E Hughes doesn’t find much resonance here as there is none to ‘appeal to the brooding spirit of the law, to the intelligence of a future day’. On the contrary, the little brother chooses to remains mute biding for the day when he would don the role of the big brother and possibly ‘correct the error into which he believes the court to have been betrayed’.

Consider the facts. Thirty eight judges in all and ten Division Benches, comprising, invariably, the top ten judges (seniority-wise) huddled together with an equal number making up the lower ten. Why does this have to be so? As far as I gather there is no statute, rule or binding precedent compelling the Honorable Chief, as master of the roster, to persist in this practice. Should the efficacy of an intra-court appeal be compromised to assuage the egos of otherwise well meaning judicial personages in their climb up the seniority ladder? Why cannot the top twenty sit in Division thereby fostering a reasonably democratic meeting of minds, a judicial feast of reason and flow of soul?

Flip-side: There was the case of a ‘foreign’ Chief who always sat with the second in command. It did not take long for the lawyers to fathom the reason. In almost two years of his stay at the helm the venerable Chief never authored a single judgment and left the unpleasant job to his deputy.

Law Relating to Stray Dogs -- An Over View

(By D. Pappachan, Rtd. District Judge and Former Chairman,Permanent Lok Adalat, Ernakulam)

Of late the public at large and the persons in authority are confronted with a legal and social issue relating to stray dogs in the street. To kill or not to kill stray dogs, which cause untold miseries to the travelling public and commuters on the road, particularly women and children, is a puzzling question that receive the attention of all. One may legitimately ask, if you cannot walk around the pavements adjacent to your residential house, where is the freedom of movement guaranteed under the Constitution? And as I could gather from the print and visual media, the State Government in Kerala has the will to put an end to the street dog menace, but it is hesitant to act decisively due to the apprehended legal issues involved in it. But according to me the existing laws are enough to deal with the situation effectively.

In this context I may refer to Section 438 of the Kerala Municipality Act, 1994 (Act 20 of 1994). As per the said provision every Municipality in Kerala is statutorily obliged to order seizure and destruction of street dogs causing nuisance to the public.

Section 438 of the Municipality Act reads thus:

438. Power to dispose of stray pigs and dogs.-- The Secretary may order for the seizure and destruction of unlicensed pigs or dogs straying in the municipal area, shall make such arrangements therefore as they may deem fit.

Similarly on a mere perusal of Item No.27 of the First Schedule to Kerala Municipality Act, 1994 it is clear that destruction of street dogs is a mandatory function of every Municipality. Here it is to be pointed out that matters enumerated in the First Schedule of the Kerala Municipality Act are mandatory functions of the Municipality in the administration of the Municipal area. (Vide section 30 of the Act). Item 27 of the First Schedule of the Act is given as under:

xx              xx

27. Issue licence to domestic dogs and destroy stray dogs.

xx

xx

From the aforesaid provisions it is clear that the legislative mandate is to destroy stray dogs, in respect of which licenses are not issued by the Municipality.

No doubt, Rules 6(1) and 6(2) of the Animal Birth Control (Dogs) Rules, 2001

(ABC Rules) oblige the local authority to control street dog population by immunization and sterilization. The argument put forward by those who oppose the killing of street dogs is that ABC Rules do not permit destruction or annihilation of street dogs and therefore it is illegal to resort to killing of street dogs by the local body. But here one must remember that Kerala Municipality Act (Act 20 of 1994) is a comprehensive enactment in line with the Constitution (Seventy-fourth Amendment) Act 1992, whereas ABC Rules are only statutory rules framed by virtue of the provisions of the Prevention of Cruelty to Animals Act 1960. That being so, if the Rules framed under the provisions of the Prevention of Cruelty to Animals Act 1960 are in conflict with the law relating to Municipality, which is in tune with the Constitution (Seventy-fourth Amendment) Act, 1992, the Provisions of the Municipality Act must prevail. In short what I could understand from the aforesaid provisions of law is that, in spite of the ABC Rules framed under Prevention of Cruelty to Animals Act, the provisions of the Kerala Municipality Act 1994 enable and oblige the Municipalities in our State to order seizure and destruction of stray dogs causing nuisance to the public. It is high time that this legal issue is discussed and debated among the legal fraternity so as to spread awareness among the public.

Power of Attorney -- Some Information and Some Decisions Which May Be Useful to the Needy

 (By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam) 

William Shakespeare (1564-1616) had written in Much Ado about Nothing (1598.9.11.1) “Let every eye negotiate for itself and trust no agent.” This had a meaning then. But this verse has changed a lot, in present times. In the present complex mercantile world, due to practical considerations and also out of dire necessity the execution of a power of attorney deed has become an absolute and unavoidable necessity. The deed may be for litigation in courts, administration and management of properties, or business, sale or negotiation regarding property, for Governmental purposes and many other purposes. It is this process of getting things done through another person has given birth to the concept of agency. The legal consequence of agency is exercise of authority by one on behalf of another.

Some legal principles laid down by various courts on the subject of Power of Attorney, are hereunder mentioned, with the hope that it may useful to some lawyers, especially the beginners.

1. A deed of power of attorney is not compulsorily registerable unless it creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property of value of `100/- and above (Registration Act S.17(b). Except for the purpose of presentation and registration of documents as per S.32 of Registration Act.

AIR 2004 P. & H. 216 at 219 (Kamalesh v. Jasbir).

AIR 1979 SC 553 at 559 (Syed Abdul Khader v. Rami Reddy).

2. A Court is not bound to presume genuineness of an unregistered power of attorney and when it’s genuineness is questioned it has got to be separately proved.

AIR 1916 Cal.979 (Maheshchandra Addy v. Panchu Mudali) (1983 KLT 1013) (Damodaran Suran v. Kesavan Meenakshy)

3. But, if executed before an authority called by a Notary appointed under the Notaries Act, 1952 (by one of the persons mentioned in S.85 of Evidence Act) then,. S.85 of Evidence Act raises a presumption of genuineness in favour of such power of attorney. AIR 1984 Del.363 (Electric Construction Equipment Co. v. Juggit Electric Works, Sirsa)

2000 AIHC 2465 at 2467 (Raj.H.C.) (Sukhdev v. Bhanwarlal)

Therefore, either the power of attorney should be authenticated or registered to make it valid AIR 2005 Cal.118 (C.Renuprova Paul v. Sanyasi Charan Ghosh)

4. Court can presume that all necessary requirements for proper execution of Power of Attorney have been fulfilled.

AIR 1939 Bom.347 (Performing Right Society Ltd. v. India Morning Post Restaurant).

AIR 1976 Del. 263 (Abdul Jabbar v. 2nd Addl. District Judge).

AIR 1980 All.369 (Bombay Export - Import v. Eastern Association & Co.).

AIR 1984 Del.20.

5. There can be an agency by necessity.

1998 (2) KLT 420 (Chamnarayanan v. V.R.Krishna Iyer).

6. When power of attorney deed is executed, agency is created.

AIR 1979 SC 553 (Syed Abdul Khader v. Rami Reddy).

7. The Kerala High Court had occasion to consider the scope of Section 85 in Sainaba v. Abdurahiman Koya (1982 KLT SN 31 (C.No.48)). According to the Court, the definition of “Consular Officer” in the Citizens (Registration at Indian Consulates) Rules, 1956 makes no differentiation of Secretaries and as the plaintiff has not established that the ‘Second Secretary’ is no “Secretary’, the Court was inclined to hold that the term ‘Secretary’ in the definition includes every Secretary irrespective of his gradation or ranking. The power of attorney attested by the Second Secretary was held valid by the High Court. Notary includes notary of foreign State also.

8. Stamp duty of power of attorney is under Art.48(e) of Central Stamp Act (AIR 1968 Mad 50). (Board of Revenue Madras v. Annamalai & Co.)

The concerned Article under Kerala Stamp Act is Article 44(d).

9. Article 44 of Kerala Stamp Act 1959 has been amended by Finance Act 29/2013 (See page 29 of 2013 (4) KLT Kerala Statutes). It says that if power of attorney is in favour of named relatives `300 is to be paid as stamp duty and if it is in favour of others market value of the property to be shown for stamp duty for a power of attorney deed.

10. Even after execution of power of attorney deed, the principal can act independently and does not have to take consent of power of attorney holder.

AIR 2011 All.114 (para 8 and 9) (Chander Singh v. Mirza Anis Ahmed).

AIR 2010 SC 3132.

2013 (7) MLJ 688.

2011 (2) KLT 366 (Deb Ratan Biswas v. Most.Anand Moyi Devi) decided on 15.4.2011.

Contra :- As long as power of attorney is valid, and subsisting sale by principal is invalid.

2015 (5) MLJ 313 (M.Bama v. Dr.R.Nirupama).

However in view of the Supreme Court decision, it is only that decision which will prevail.

11. Power of attorney is necessary only in the absence of Principal. If principal is present, the agent can represent the principal without a power of attorney deed. 2000 (3) KLT 76 (Thambi v. State of Kerala) - Abkari Auction case.

12. Power of attorney holder cannot depose on behalf of the Principal about facts which are within the knowledge of principal but can depose regarding facts which are personally known to him.

13. Mere mention that power of attorney deed is irrevocable and mere mention in the title or in the body of the document that it is irrevocable does not make it irrevocable. 2003 (4) Maharashtra Journal 451 (Bares v. Municipal Council of Gr. Mumbai).

AIR 1985 A.P.30 para 2 (M.John Kotiah v. A.Divakar).

AIR 1994 Karnt.133 (para 13) (Corporation Bank Bangalore v. Lalitha H. Halla).

14. Registered power of attorney deed can be cancelled only by another registered document.

AIR 2011 All.114 (para 8, 9) follows.

AIR 2010 SC 2132 = (2010) 5 SCC 904. (Chander Singh v. Mirza Anis Ahmed).

15. A person enrolled as an Advocate cannot be permitted to appear in person as a power of attorney holder, in the absence of a vakkalath.

Brenda Barbera Francis rep. by POA G. Anand v. Adrian Mirana(2016 (3) KLT 214).

16. Registrar has power under Ss.32-33 of Registration Act to ensure that there is valid authorization in the power deed to execute and register the document presented by Power Holder.

AIR 2016 Mad.123 (paras 24 to 31) (Asset Reconstruction Co. (India) Ltd. v. I.G. Registration, Chennai).

17. Power of attorney deposes only on the basis of documents of 30 years old and not personal. His evidence can be accepted.

AIR 2016 Kar.117 (Tulsi Bai v. Puspa Bai) Relying on AIR 2005 SC 439.

19. Power holder purchasing property in his own name. Principal cannot repudicate it merely because it is for the benefit of agent.

2009 (7) MLJ 899 (paras 17 and 18) (M.Abdul Muthalip v. M.Samsudeen).

AIR 1938 Cal.373 (Narendranath v. Bimla Sundari).

But the Principal can set aside the same by paying court fees under S.40 of Court Fees Act.

Even as agent can purchase the property when he pays price to the principal on his own responsibility.

AIR 1967 SC 181 (Gorden Woodrofee & Co. v. M.A. Majjid & Co.).

19. When a power holder executed a perpetual lease for 99 years in favour of his wife for no consideration taking advantage of the absence of the principal, it is a clear case of fraud. Act of Power of Attorney does not bind the Principal.

2008 AIHC 1622 Karnt.H.C. (Vasant v. Jaya Senan) AIR 1996 SC 2754 (Bhatori v. Rampiari) 2006 AIHC 347 (P. & H.) (Harmesh Kumar v. Mayabai).

(Detailed case law cited)

20. Joint Power of Attorney - A power of attorney deed may be executed jointly by any member of persons as the principals. It may also be executed in favour of one person or a number of persons as the power of attorney or power of attorneys.

2000 AIHC 2461 (2467) (Raj.H.C.) Sukhdev v. Bhanwarilal Law of Contra to 17th Edn.Vol.page 629 also.

But it will have to be make it clear whether they can act jointly or severally and in the absence of an express provision authorizing them to act severally they will be entitled to act only jointly.

(1849) 18 LJ DB 229 (Brown v. Andley).

1890 (59) J Ch. 618. In Liverpoor Household Stores.

The above are some of the rulings of various courts in India and England. The subject is exhaustive.

The writer would be happy if this article (if read by young lawyers) if it is of some use at sometimes.