Indu Singh And Anr. vs Prem Chaudhary And Ors. on 11 May, 2018

7. The judgment in Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs. (2005) 10
SCC 746 was rendered in a different context. The preliminary decree, which had declared
the share of parties, was not acted upon and no final decree was sought. It was contended
that since no period of limitation (to apply for a final decree) was provided, execution
could be applied at any point of time, regard being had to the circumstance that
embossing of stamp paper was a precondition. The Supreme Court negatived this
contention (albeit in the context of interpretation of the Limitation Act) and observed as
follows:

―Such an interpretation is not permissible having regard to the object and
scheme of the Indian Stamp Act, 1899. The Stamp Act is a fiscal measure
enacted with an object to secure revenue for the State on certain classes of
instruments. It is not enacted to arm a litigant with a weapon of
technicality to meet the case of his opponent. The stringent provisions of
the Act are conceived in the interest of the revenue. Once that object is
secured according to law, the party staking his claim on the instrument
will not be defeated on the ground of initial defect in the instrument
Hindustan Steel Limited v Messers Dilip Construction Company [(1969) 1
SCC 597]}. Section 2 (14) of the Indian Stamp Act defines an ‘instrument’
as including every document by which any right or liability is, or
purported to be created, transferred, limited, extended, extinguished or
recorded. Section 2 (15) defines ‘instrument of partition’ as any instrument
whereby co-owners of any property divide or agree to divide such

O. REF.2/2018 IN CS(OS) 1098/2005 Page 8 of 86
property in severalty, and includes also a final order for effecting a
partition passed by any revenue authority or any Civil Court and an
award by an arbitrator directing partition. Section 2 provides a list of
instruments which shall be chargeable with duty of the amount indicated
in Schedule I of the Indian Stamp Act. Article 45 of Schedule I prescribes
the proper stamp duty payable in case of an instrument of
partition. Section 33 provides for the impounding of the instrument not
duly stamped and for examination of the instrument for ascertaining
whether the instrument is duly stamped or not. Section 35 provides that
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. Section 40 (b) provides for payment of the proper duty, if the
instrument impounded is not duly stamped. Section 42 (1) provides for
certifying that proper duty has been paid on the impounded instrument.
Sub-section (2) provides that after such certification the instrument shall
be admissible in evidence, and may be registered, acted upon and
authenticated as if it had been duly stamped.

Source: Indian Kanoon

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