N.K. Mody, J:

1. Being aggrieved by the order dated 05/01/11 passed by Civil Judge, Class-I, Kannod in Civil Suit No. 11-A/08 whereby upon objection raised by the respondents the document Ex. D/2 was held inadmissible in evidence, present petition has been filed.

2. Short facts of the case are that the respondents filed a suit for possession and mesne profit of an agricultural land alleging that the respondents are owner of the suit property and the suit property was given to the petitioner for one year. The suit was contested by the petitioner on the ground that the father of the petitioner was owner of the suit property who sold the suit property to the respondents in lieu of loan, but actual possession was not given to the respondents. It was further alleged that vide agreement dated 28/07/04 predecessor in title of respondents deceased Lalaram Yadav entered into an agreement to sell the suit property to the petitioner for a consideration of र 1,10,000/- and the petitioners remained throughout in possession of the suit property. It was prayed that the suit be dismissed. After framing of issues at the stage of evidence two documents i.e. agreement and affidavit which were alleged to have been signed by deceased Lala ram tendered in evidence and were marked as Ex. D/1 & Ex. D/2 vide order dated 09/02/09 as documents were admitted in secondary evidence. Thereafter objection was raised by the respondents about the admissibility of the document. By the impugned order learned Court below held that since the document Ex.D/2 which is an agreement is not properly stamped, therefore, the same is inadmissible in evidence, therefore, petitioner cannot be permitted to mark the signature of the deceased Lalaram Yadav on the document Ex. D/2, against which present petition has been filed.

3. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that once document was admitted in evidence and was also exhibited, therefore, learned Court below was having no jurisdiction to pass subsequent order holding that the document is inadmissible in evidence. For this contention reliance is placed on Section 36 of Indian Stamp Act. Further reliance is placed on a decision in the matter of Champat Giri v. Ramdayal, 2010(5) R.C.R.(Civil) 395 : 2009(3) MPLJ, 395 wherein this Court held that as per Section 36 of Indian Stamp Act, 1899 once a document is admitted in evidence, it is not permissible to the Court whether it is a Court of Appeal or trial Court to reject it on the ground that it is not duly stamped. Where agreement to sale has been marked as an exhibit in a case and used by the parties in examination and cross-examination of the witnesses, then Section 36 of the Stamp Act comes into operation and it cannot be excluded. When an unstamped document has been marked as an exhibit and admitted in evidence under the signature of the Court, it cannot be said that the document has been inadvertently admitted. At the time of admission of agreement to sale no objection was raised by the appellant in the trial Court regarding admissibility of the document, its admissibility cannot be questioned at any subsequent stage of proceeding or before the appellate Court. Section 36 of the Indian Stamp Act is quite rigorous in its application and when a document has been admitted in evidence, it can even form the foundation for the decision in the suit and no Court either original, revisional or appellate can call into question of admissibility of the document on the ground of it being unstamped or nor duly stamped. On the strength of this, learned counsel submits that the petition filed by the petitioner be allowed and the impugned order whereby learned Court below has held that the document Ex.D/2 is inadmissible in evidence be set aside.

4. Learned counsel for respondents submit that no illegality has been committed by the learned Court below in holding that the document is inadmissible in evidence. It is submitted that even if the document has exhibited, then too, at the later stage of the suit it can be objected. It is submitted that since the document was not original one and was the copy, which was not duly stamped, therefore, learned Court below was right in holding that the document is inadmissible in evidence. Learned counsel placed reliance on the definition of conveyance as mentioned in Clause 10 of Section 2 of Indian Stamp Act, which reads as under:-

"Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred intervivos and which is not otherwise specifically provided for by Schedule I or by schedule I-A, as the case may be;"

5. Learned counsel further placed reliance on Article-5 of Schedule I-A of Indian Stamp Act which deals with agreement or memorandum of an agreement. Clause (e) of Article 5 of Schedule I-A of Indian Stamp Act reads as under :-

5. Agreement or memorandum of an agreement:-

(a) ............

(b) ............

(c) ............

(d) ............

(e) If relating to sale of immovable property:-

(i) When possession of the property is delivered or is agreed to be delivered without executing the conveyance. The same duty as a conveyance on the market value of the property.

(ii) When possession of the property is not given.One percent of the total consideration of the property set forth in the agreement or memorandum of agreement.

6. Learned counsel placed reliance on a decision in the matter of Vimla Devi (Smt.) v. Dhanraj Singh, 2000(1) MPWN, Note-82 wherein it is held that in a case where possession mentioned to have been handed over to vendee in the agreement to sell, the same is chargeable as conveyance under Article 23 and not as agreement under Article 5. Further reliance is placed on a decision in the matter of Narmada Prasad Agrawal v. Tarun Bhawasar, 2009(1) MPLJ 176 wherein it is held that in a case where concerned instrument is an unregistered agreement of sale which, as per stipulations contained under Section 17 of the Registration Act, requires a compulsory registration and unless the document is compulsory registered the same cannot be taken in evidence in any manner. It was further held that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose, which will include a collateral purpose. Further reliance is placed on a decision in the matter of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 wherein it was held that clause 14 of Section 2 of Indian Stamp Act which lays down the definition of instrument does not cover copy of document for the purpose of Stamp Act. It was further held that in view of Section 35, 36 secondary evidence by way of oral evidence or copy of document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under Evidence Act. It was further held that Section 35 & 36 are not concerned with copy of document. A party can only be allowed to rely on a document which is an instrument for the purposes of these Sections. Section 36 does not apply to secondary evidence adduced in proof of the contents of document unstamped or insufficiently stamped. Lastly reliance is placed on a decision in the matter of Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009(1) R.C.R.(Civil) 615 : 2009(1) Recent Apex Judgments (R.A.J.) 297 : 2009(3) MPLJ 289 wherein Hon'ble Apex Court observed that an unregistered deed of sale requires payment of stamp duty applicable to a deed of conveyance. Adequate stamp duty having not paid on the said instrument, the Court was empowered to pass an order in terms of Section 35 and direct payment of unpaid duty and penalty. It was also observed that instrument not duly stamped inadmissible in evidence. Purpose for which a document is sought to be admitted in evidence not a relevant factor for not invoking the provisions of Section 35. It was also observed that bar against admissibility of an instrument, chargeable with stamp duty and is not stamped, is absolute. On the strength of aforesaid position of law learned counsel submits that the petition filed by the petitioner has no substance and the same deserves to be dismissed. It is submitted that the petition be dismissed.

7. From perusal of the record it is evident that Ex. D/2 which is xerox copy of the agreement dated 28/07/04 which was admitted in evidence on 09/02/09. At that time no objection was raised by the respondents regarding the admissibility of the document. For the first time the objection was raised on 05/01/11.

8. Section 17 of Registration Act is a disabling section. The documents defined in clauses (a) to (e) requires registration compulsorily. Accordingly, sale of immovable property of the value of र 100/- and more requires compulsory registration. Part X of the Registration Act deals with the effects of registration and non-registration.

9. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 of Registration Act reads thus :

"49. Effect of non-registration of documents required to be registered. - No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall -

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such unless it has been registered;

"Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.

10. Section 35 of Indian Stamp Act lays down that no instrument chargeable with duty shall be admissible in evidence for any purpose by any person. Section 36 of Indian Stamp Act puts a rider according to which once the document is admitted in evidence, such evidence shall not except as provided in Section 61, be called in question at any stage of the same proceedings on the ground that the instrument have not been duly stamped. Section 61 of Indian Stamp Act gives right to an aggrieved party to challenge the validity of the order in revision whereby the document has admitted in evidence which was not properly stamped. The procedure and the forum is laid down in this Section which is self contained. Proviso to Section 49 of the Act lays down that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument.

11. In the matter of S. Kaladevi v. V.R. Somasundaram, 2010(2) R.C.R.(Civil) 824 : 2010(3) Recent Apex Judgments (R.A.J.) 132 : (2010)5 SCC 401 wherein the question was with regard to the admissibility of unregistered sale deed in evidence, Hon'ble Apex Court observed that the unregistered sale deed tendered not as evidence of completed sale but as proof of oral agreement of sale, can be received in evidence by making endorsement that it was received only as evidence of oral agreement of sale under the proviso to Section 49. In the matter of Shyamlal Kumar Roy v. Sushil Kumar Agrawal, 2007(1) R.C.R.(Civil) 321 : (2006)11 SCC 331 Hon'ble Apex Court had an occasion to deal with the status of an instrument admitted in evidence but inadequately stamped and it was observed that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefor. If a party to the is intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril.

Objection as regards admissibility of a document, thus, specifically is required to be taken that it was not duly stamped. On such objection only, the question is required to be determined judicially. 12. Keeping in view the position of law since no objection was raised by the respondents at the appropriate stage about the admissibility of the document, this Court is of the view that the learned Court below was not justified in holding that the document Ex. D/2 was not duly stamped hence inadmissible in evidence. So far as the fact that the document was not properly stamped and was not admissible in secondary evidence is concerned, that objection also could not have been taken at the stage when the document was already admitted in evidence because once the document was admitted in evidence without any objection whether the document was properly stamped or not, the validity of the order can only be examined by the revisional authority under Section 61 of Indian Stamp Act. 13. In the facts and circumstances of the case petition filed by the petitioner is allowed. The impugned order passed by the learned Court below is set aside with a liberty to the respondents to challenge the admissibility of the document under Section 61 of Indian Stamp Act. With the aforesaid observations, petition stands disposed of. Petition allowed.