Rajasthan High Court – Jodhpur
Manoj Kumar vs Premsukh on 22 July, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JP:33780]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 10829/2026
CNR: RJHC010480822026
URN: CW / 19738U / 2026
1. Manoj Kumar S/o Shri Madangopal, Aged About 41 Years,
Resident Of Ward No. 4, Kasumbi Alipur, Tehsil Ladnun,
District Nagaur (Now District Didwana-Kuchaman) (Raj.).
2. Vijay Kumar Alias Brajlal S/o Shri Madangopal, Aged
About 40 Years, Resident Of Ward No. 4, Kasumbi Alipur,
Tehsil Ladnun, District Nagaur (Now District Didwana-
Kuchaman) (Raj.).
3. Munni W/o Shri Madangopal, Aged About 60 Years,
Resident Of Ward No. 4, Kasumbi Alipur, Tehsil Ladnun,
District Nagaur (Now District Didwana-Kuchaman) (Raj.).
----Petitioners
Versus
1. Premsukh S/o Shri Ramkumar, Resident Of Alipur, Tehsil
Ladnun, District Nagaur (Now District Didwana-
Kuchaman) (Raj.).
2. Sonu Alias Baby D/o Shri Madangopal Wife Of Shri
Laxminarayan Son Of Shri Kanhaiyalal Rewadiya, Resident
Of Bus Stand, Dariba, Beedasar, District Churu (Raj.).
3. Reshmi D/o Shri Madangopal Wife Of Shri Devkishan Son
Of Shri Kanhaiyalal Rewadiya, Resident Of Bus Stand,
Dariba, Beedasar, District Churu (Raj.).
4. Tehsildar / Sub-Registrar, Ladnun, District Nagaur (Now
District Didwana-Kuchaman).
----Respondents
For Petitioner(s) : Mr. N.R. Choudhary
For Respondent(s) : -
HON'BLE MR. JUSTICE FARJAND ALI
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Order
22/07/2026
1. The instant writ petition has been preferred assailing the
order dated 17.03.2026 passed by the learned Civil Judge,
Ladnun, in Civil Original Case No.68/2022, whereby the
application preferred at the instance of the petitioner under
Sections 39 of the Rajasthan Stamp Act, 1998 (hereinafter to be
referred as “the Act of 1998”) read with Section 151 of the Code
of Civil Procedure (in short “CPC“) came to be rejected.
2. Bereft of unnecessary details, the facts requisite for
adjudication of the present petition are that the respondent-
plaintiff instituted a suit seeking specific performance of an
agreement to sell. During the pendency of the suit, the petitioner-
defendant moved an application contending that the agreement to
sell, which constitutes the very foundation of the suit, is neither
registered nor duly stamped and, therefore, the same cannot be
admitted in evidence or exhibited unless the mandatory
requirements of law are first complied with. The said application
having been rejected by the learned trial Court, the petitioner has
invoked the writ jurisdiction of this Court.
3. Heard learned counsel for the parties. Perused the order
impugned, the material available on record and the statutory
provisions governing the controversy.
4. The principal question which falls for consideration is whether
an unregistered and allegedly insufficiently stamped agreement to
sell, forming the basis of a suit for specific performance, can be
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tendered in evidence without first complying with the mandate of
the Registration Act, 1908 (hereinafter to be referred as “the Act
of 1908”) and the Act of 1998.
4.1 Before adverting, it is apposite to reproduce the relevant
provision of the Act of 1908. For ready reference, Section 49 of
the Act of 1908 is reproduced herein below:-
“49. Effect of non-registration of documents required
to be registered.–No document required by section 17
1[or by any provision of the Transfer of Property Act, 1882
(4 of 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
property or conferring such power,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 (4 of 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 (3 of 1877), or as
evidence of any collateral transaction not required to
be effected by registered instrument.]4.2 Insofar as the objection regarding non-registration is
concerned, Section 49 of the Act of 1908 provides that a
document which is compulsorily registrable under Section 17
thereof cannot affect the immovable property comprised therein
nor can it be received in evidence of any transaction affecting such
property unless it has been registered. However, the proviso
appended to Section 49 of the Act of 1908 carves out a well-
recognised exception by permitting an unregistered document to
be received in evidence as proof of a contract in a suit for specific
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performance or for any collateral purpose which is not required by
law to be effected through a registered instrument. Thus, in a suit
founded upon an agreement to sell, the mere fact that the
agreement is unregistered would not, by itself, render the
document wholly inadmissible in evidence, provided that it is
sought to be relied upon only for the limited purpose
contemplated under the proviso to Section 49 of the Act of 1908.
5. As far as the question of Section 39 of the Act of 1998 is
concerned, it unequivocally provides that no instrument
chargeable with stamp duty under the Act shall be admitted in
evidence, acted upon, registered or authenticated by any Court or
authority competent to receive evidence unless such instrument is
duly stamped. For the ease of reference, Section 39 of the Act of
1998 is reproduced herein below:-
“39. Instruments not duly stamped inadmissible in
evidence, etc. –
No instrument chargeable with duty under this Act 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 shall, subject to all just exceptions,
be admitted in evidence on payment of, –
(i) 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, and(Uploaded on 27/07/2026 at 06:08:35 PM)
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[2026:RJ-JP:33780] (5 of 7) [CW-10829/2026][(ii) a penalty at the rate of two percent of the amount
of the deficient duty per month or part thereof for the
period during which the instrument remained
insufficiently stamped or twenty five percent of the
deficient stamp duty, whichever is higher, but such
penalty shall not exceed to two times of the deficient
stamp duty.]
(b) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any
one of the letters bears the proper stamp; the contract of
agreement shall be deemed to be duly stamped.
(c) nothing herein contained shall prevent the admission of
any instrument as evidence in any proceeding in a criminal
court, other than a proceedings under chapter IX or Part D
of Chapter X of the Code of Criminal Procedure, 1973 (Act
No. 2 of 1974).
(d) nothing herein contained shall prevent the admission of
any instrument in any court when such instrument has been
executed by or on behalf of the Government or where it
bears the certificate of the Collector as provided by section
36 or any other provision of this Act.
(e) nothing herein contained shall prevent the admission of
a copy of any instrument or of an oral account of the
contents of any instrument, if the stamp duty or a deficient
portion of the stamp duty and penalty as specified in clause
(a) is paid.
(f) nothing herein contained shall prevent the admission of
any instrument in evidence in any court when stamp duty
on such instrument has already been paid in advance in the
form of a consolidated lump sum.
(g) nothing herein contained shall prevent the admission of
any instrument in any court when such document has been
executed by or on behalf of the Government or where it
bears the Certificate of the Collector as provided by section
36 or any other provision of this Act.”
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5.1 The legislative mandate embodied in the provision leaves no
manner of doubt that an instrument which is not duly stamped
cannot be received in evidence in its existing form. The proviso
appended to Section 39, however, carves out an exception to the
aforesaid embargo by providing that an instrument which is
insufficiently stamped does not become altogether inadmissible.
The defect is curable upon payment of the requisite stamp duty or
the deficient portion thereof together with the penalty as
contemplated under the statute. Thus, the legislative intent is not
to exclude such document from consideration permanently, but to
ensure compliance with the fiscal requirement prescribed under
the Act before the document is admitted in evidence or acted upon
by the Court. Viewed from the aforesaid perspective, if the
agreement sought to be tendered in evidence is found to be
insufficiently stamped, the learned trial Court shall ensure
compliance with the mandate of Section 39 of the Act of 1998
before the document is received in evidence or exhibited, if
otherwise admissible in law.
6. In view of the aforesaid legal position, this Court is of the
considered opinion that though the agreement to sell cannot be
excluded from consideration merely on the ground of non-
registration in a suit for specific performance, its admissibility in
evidence shall nevertheless remain subject to strict compliance
with the provisions of Section 39 of the Act of 1998, if it is found
to be insufficiently stamped.
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7. Accordingly, the writ petition stands disposed of with the
direction that, in the event the respondent-plaintiff seeks to
tender the agreement dated 12.11.2002 in evidence, the learned
trial Court shall first examine whether the document is duly
stamped. If it is found to be insufficiently stamped, the same shall
be impounded and forwarded to the Collector (Stamps) or the
competent authority for determination of the deficiency in
accordance with Section 39 of the Act of 1998.
7.1 Upon payment of the requisite stamp duty, deficit duty and
other charges, if any, as determined in accordance with law, the
document may thereafter be admitted in evidence and exhibited,
if otherwise admissible under the provisions of the Act of 1908 and
the law governing the field.
8. The writ petition stands disposed of in the above terms.
9. Stay petition and all pending applications stands disposed of.
(FARJAND ALI),J
424/Pooja Tak/700
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