Stamp Act, 1899 (as amended by Orissa Act no.1 of 2003 w.e.f 20.01.2003): s.35; Art.23 – Code of Civil Procedure, 1908 – Or.XIII r.8 – Impounding of a document (power of attorney) for insufficient stamp duty – Suit for partition filed by plaintiffsrespondents through power of attorney holders (PW-1) – During cross-examination of PW-1, appellants filed application under Or.XIII r.8 to impound the power of attorneys (POAs) on the ground that such POAs ought to be treated as conveyance within the meaning of Art.23 of Stamp Act as amended in Orissa State and in view of that they were insufficiently stamped and, therefore, in terms of s.35 of Stamp Act, the POAs are liable to be impounded and cannot be admitted in evidence unless an appropriate stamp duty is paid – Trial court and High Court dismissed the application observing that since it is a registered document, therefore, it is properly stamped – Held: The question whether possession was transferred at the time or after execution of such POA is a question of fact which is required to be decided by the Court at the time of final decision, after evidence is led by the parties and not merely on the basis of recitals in POA – Such process would be fair and reasonable keeping in view the provisions of Orissa Act – In the facts of the instant case, the objection relating to deficiency in stamp duty on POA which the appellants claimed to be conveyance, would depend upon the finding regarding delivery of possession in terms of POA – Generally speaking, such objection is required to be decided before proceeding further – However, in a case where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit – Therefore, order passed by trial court and High Court set aside – Matter remitted to the trial court to decide the objection of admissibility of the document on account of being insufficiently stamped – Indian Stamp Orissa Amendment Act, 2003.
Disposing of the appeal and remitting the matter to trial court, the Court
HELD: The trial court as well as the High Court returned the findings on the bare reading of the power of attorney and observed that since it is a registered document, therefore, it is properly stamped. But the question as to whether in terms of the explanation inserted by the Orissa Act, such power of attorney is liable to be stamped as conveyance, on account of the delivery of possession at the time of execution of power of attorney or thereafter was not examined. The question whether possession was transferred at the time or after execution of such power of attorney is a question of fact which is required to be decided by the Court at the time of final decision being adjudicated, after evidence is led by the parties and not merely on the basis of recitals in the power of attorney. Such process would be fair and reasonable keeping in view the provisions of Orissa Act. [Paras 11, 12][650-E-G]
R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple & Anr. (2003) 8 SCC
752 : [2003] 4 Suppl. SCR 450 – held inapplicable. Ram Rattan (Dead) by LRs. v. Bajrang Lal & Ors. (1978)
3 SCC 236 : [1978] 3 SCR 963; Omprakash v.
Laxminarayan & Ors. (2014) 1 SCC 618 : [2013] 9 SCR 923; Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001) 3 SCC 1 : [2001] 2 SCR 29 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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