Jitendra Nath Sachhar S/O Sri Sai Dass … vs Yodjraj S/O Shri Sai Dass Sachhar … on 21 April, 2026

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    Rajasthan High Court – Jaipur

    Jitendra Nath Sachhar S/O Sri Sai Dass … vs Yodjraj S/O Shri Sai Dass Sachhar … on 21 April, 2026

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               HIGH COURT OF JUDICATURE FOR RAJASTHAN
                              BENCH AT JAIPUR
                     S.B. Civil Writ Petition No. 1991/2026
       1        Jitendra Nath Sachhar S/o Sri Sai Dass Sachhar, R/o
                Jhalrapatan   District Jhalawar   (Rajasthan) (Since
                Deceased) Through His Legal Heirs
       1.1      Nirmala Kumari W/o Shri Jitendra Nath Sachhar, R/o
                Swaran Kutti, Behind Surya Mandir, Jhalarapatan.
       1.2      Arvind Kumar S/o Shri Jitendra Nath Sachhar, R/o
                Jitendra Collection, Behind Surya Mandir, Jhalarapatan.
       1.3      Dharmendra Kumar S/o Shri Jitendra Nath Sachhar, R/o
                New Swaran General Store, Opposite Jhalawar Kendriya
                Sahakari Bank, Jhalarapatan.
       1.4      Smt. Anita D./o Shri Jitendra Nath Sachhar, W/o Shri
                Murari Lal Adalakha, Advocate, Khedliganj, Atru, District
                Baran (Raj.)
                                                           ---Defendants-Petitioners
                                           Versus
       Yodjraj S/o Shri Sai Dass Sachhar, R/o Jhalarapatan, District
       Jhalawar (Raj.)
                                                                ---Plaintiff-Respondent
       For Petitioner(s)          :    Mr. Mahesh Gupta
       For Respondent(s)          :    Mr. Narendra Kumar
    
    
                       HON'BLE MR. JUSTICE BIPIN GUPTA
                                  Judgment
    Reportable
    
       21/04/2026
    
    

    1. The present civil writ petition has been filed assailing the

    order dated 19.01.2026, passed by learned District Judge,

    SPONSORED

    Jhalawar, in Civil Suit No.121/2024, whereby the application filed

    by the plaintiff-respondent under Section 35 of the Indian Stamp

    Act, 1899 (hereinafter referred to as “the Act of 1899”)

    corresponding to Section 39 of the Rajasthan Stamps Act, 1998

    (hereinafter referred to as “the Act of 1998”) read with Section

    49(c) of the Registration Act, 1908 (hereinafter referred to as “the

    Act of 1908”) has been allowed. The learned trial Court, while

    holding that the partition agreement in question is unregistered

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    and, therefore, inadmissible in evidence, directed that the said

    document be impounded and placed in record in “Part D” of the

    case file.

    2. The brief facts of the case are that the plaintiff-respondent

    instituted a suit for partition and possession of joint family

    property. In response, the defendant-petitioner filed a written

    statement denying the averments made in the plaint.

    2.1 During the course of proceedings, the plaintiff-respondent

    filed an application under Section 35 of the Act of 1899 read with

    Section 49(c) of the Act of 1908, contending that the defendant

    had produced a document during the plaintiff’s evidence and

    sought to rely upon it in cross-examination. It was submitted that

    the said document, being a partition agreement, was neither duly

    stamped nor registered and, therefore, was inadmissible in

    evidence. Accordingly, a prayer was made that the document

    should not be exhibited until compliance with the statutory

    requirements under the aforesaid provisions.

    2.2 The defendant-petitioner filed a reply to the said application.

    The learned trial Court, vide order dated 17.12.2016, disposed of

    the application observing that mere confrontation of the document

    during cross-examination does not amount to proof of its

    contents, and that the burden to prove the document lies upon the

    defendant, which is to be discharged at the stage of his evidence.

    2.3 Aggrieved thereby, the defendant-petitioner preferred a writ

    petition before this Court bearing number S.B. Civil Writ Petition

    No. 1447/2017, which was disposed of vide order dated

    16.12.2025, directing that the application filed by the plaintiff-

    respondent be restored to its original position and reconsidered

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    afresh in light of the provisions of the Act of 1998. It was further

    directed that, if upon such reconsideration the trial Court finds the

    document to be insufficiently stamped, it shall follow the

    procedure prescribed under law for impounding the same.

    2.4 However, thereafter, the learned trial Court, vide order dated

    19.01.2026, allowed the application and held that the partition

    agreement in question, being unregistered, is inadmissible in

    evidence. The Court further directed that the document be

    impounded and placed in record in “Part D” of the case file.

    Notwithstanding the same, the trial Court did not forward the

    document to the competent authority, i.e., Collector (Stamps), for

    proper recovering the stamp duty in accordance with law.

    2.5 Aggrieved by the order dated 19.01.2026, the defendant-

    petitioner has preferred the present writ petition.

    3. Learned counsel for the petitioners submits that this Court

    had issued a specific direction that, in the event the learned trial

    Court finds the document to be insufficiently stamped, it shall

    follow the procedure prescribed under law for impounding the

    same. He further submits that the learned trial Court has failed to

    comply with the said direction and has merely ordered that the

    document be impounded and kept in record, without adhering to

    the statutory procedure.

    3.1 Learned counsel for the petitioners contends that such non-

    compliance has caused prejudice to the State, as it would be

    deprived of the stamp duty and penalty lawfully payable on the

    document. Learned counsel emphasizes that, under the provisions

    of the Act of 1899, it is incumbent upon every authority, including

    a Court, to either levy the requisite stamp duty along with penalty

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    on an insufficiently stamped document or to refer the same to the

    competent authority for appropriate action.

    3.2 Learned counsel for the petitioners, therefore, urges that

    despite the clear directions issued by this Court, the learned trial

    Court has failed to act in accordance therewith and has passed the

    impugned order in disregard of both the statutory mandate and

    the binding directions of this Court.

    4. Per contra, learned counsel for the respondent supports the

    impugned order and submits that where a Court finds a document

    to be inadmissible in evidence on account of non-registration, it is

    not obligatory for the trial Court to refer the document to the

    competent authority for adjudication on the issue of insufficient

    stamp duty. It is contended that once the document is held to be

    inadmissible for want of registration, no further exercise under the

    Act of 1899 is warranted.

    5. Heard learned counsel for both the parties and perused the

    material available on record.

    5.1 Before adverting to the consideration of issues as raised by

    the learned counsel for the parties, it is apposite to state that this

    Court shall deal in accordance with the scheme of provisions of the

    Rajasthan Stamp Act, 1998 which is pari materia to the Indian

    Stamps Act, 1899.

    6. Pursuant to the order dated 16.12.2025 passed in S.B. Civil

    Writ Petition No. 1447/2017, this Court directed that the

    application filed by the plaintiff-respondent be restored to its

    original position and reconsidered afresh in light of the provisions

    of the Act of 1998. It was further directed that, upon such

    reconsideration, if the trial Court finds the document to be

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    insufficiently stamped, it shall follow the procedure prescribed

    under law for impounding the same.

    6.1 A perusal of the impugned order dated 19.01.2026 reveals

    that the trial Court has recorded a categorical finding that the

    document in question is insufficiently stamped. Therefore, there

    remains no dispute regarding the insufficiency of stamp duty on

    the said document under the applicable provisions of the Act of

    1998.

    6.2 In this backdrop, the question that arises for consideration

    before this Court is whether, upon impounding a document, it is

    incumbent upon the Court to transmit the instrument to the

    competent authority for determination of the proper stamp duty

    and imposition and collection of the requisite penalty. For the sake

    of reference, it is apposite to reproduce the relevant sections for

    adjudication of the issues involved in the present matter.

    Section 37 of the Act of 1998 corresponding to the Section 33 of

    the Act of 1899 is reproduced hereinbelow:

    “37. Examination and impounding of instruments.- (1)
    Every person having by law or consent of parties authority
    to receive evidence, and every person incharge of a public
    office, except an officer of a 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:

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    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 under Chapter IX or Part D of Chapter X
    of the Code of Criminal Procedure, 1973 (Act No. 2 of
    1974);

    (b) In the case of a Judge of a High Court, the duty of
    examining and impounding any instrument under this
    section may be delegated to such officer as the Court
    appoints in this behalf.

    (3) For the purposes of this section in cases of doubt –

    (a) The State Government may determine what offices shall
    be deemed to be public offices; and

    (b) The State Government may determine who shall be
    deemed to be persons incharge of public offices.
    (4) When a person incharge of a public office, during the
    course of inspection or otherwise, detects from an
    instrument or copy thereof or when it appears therefrom to
    the person referred to in sub-section (1) that the instrument
    is not duly stamped, such person shall forthwith make a
    reference to the Collector in that matter.
    (5) The Collector may, suo-moto or on such reference, call
    for the original instrument for ascertaining whether it is duly
    stamped and the instrument so produced shall be deemed
    to have been produced or come before him in the
    performance of his functions and in case the original
    instrument is not produced within the period specified by
    the Collector, he may require the payment of the proper
    duty or the amount required to make up the same together
    with the penalty under section 44.”

    Section 39 of the Act of 1998 corresponding to the Section 35 of

    the Act of 1899 is reproduced hereinbelow:

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    “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 (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

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    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.”

    Section 42 of the Act of 1998 corresponding to the Section 38 of

    the Act of 1899 is reproduced hereinbelow:

    “42. Instruments impounded how dealt with – (1)
    When the person impounding an instrument under
    section 37 has by law or consent of parties authority to
    receive evidence and admits such instrument in
    evidence upon payment of a penalty as provided by
    section 39 or of duty as provided by section 41, he shall
    sent to the Collector an authenticated copy of such
    instrument, together with a certificate in writing, stating
    the amount of duty and penalty levied in respect
    thereof, and shall sent such amount to the Collector, or
    to such person as he may appoint in this behalf.

    (2) In every other case, the person so impounding an
    instrument shall send it in original to the Collector:

    Provided that where the person who produced the
    instrument, or any party interested, is prepared to pay
    the cost of preparing a copy of the instrument, then:-

    (a) an authenticated copy of the instrument shall be got
    prepared by the person impounding the instrument;

    (b) only the authenticated copy shall be sent to the
    Collector;

    (c) the Collector shall take action on the authenticated
    copy as if it were the instrument in original; and

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    (d) any certificate to be endorsed with reference to the
    instrument by the Collector under clause (a) of sub-

    section (1) of section 44 or under sub-section (1) of
    section 46 shall be endorsed on the authenticated copy,
    ordinarily within 30 days of receipt of the instrument by
    the Collector and when that copy is received back by the
    person impounding the instrument that person shall
    copy the certificate on the original instrument and also
    authenticate such copy of the certificate.”
    6.3 In this regard, it is pertinent to note that the scheme of the

    Act of 1998 contemplates a structured procedure once an

    instrument is found to be insufficiently stamped. The act of

    impounding is not an end in itself but triggers a statutory process

    for proper adjudication of stamp duty and penalty. The rationale

    behind requiring transmission to the Collector lies in the fact that

    such authority is specifically vested with the jurisdiction and

    expertise to determine the correct duty payable and to impose

    penalties in accordance with the statutory framework. This

    ensures uniformity, prevents arbitrary assessment, and protects

    the revenue interests of the State.

    6.4 Accordingly, once a document is impounded, the Court is

    ordinarily expected to act in consonance with the prescribed

    statutory mechanism, which generally includes forwarding the

    instrument to the competent authority. This interpretation aligns

    with the legislative intent of maintaining procedural consistency

    and safeguarding fiscal compliance under the Act of 1998.

    6.5 In the case of Seetharama Shetty vs Monappa Shetty; 2024

    AIR(SC) 5327, the Hon’ble Apex Court elaborately explained the

    manner in which impounded instruments are to be dealt with

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    while interpreting the relevant statutory provisions. The relevant

    paragraph is reproduced hereinbelow for ready reference:

    “17.4. Section 37 of the Act stipulates the procedure on
    how the instrument impounded is dealt with. The plain
    reading of Section 37(1) of the Act discloses that the
    person impounding the instrument under Section 33 of
    the Act and after receiving the penalty under Section
    34
    of the Act or duty under Section 36 of the Act, shall
    send to the Deputy Commissioner an authenticated
    copy of such instrument together with the amount of
    duty and penalty so levied and collected. Section 37(2)
    of the Act deals with an instrument not subjected to
    the procedure of Sections 34 or 36 of the Act.
    According to Section 37(2) of the Act, the instrument is
    sent to the Deputy Commissioner for enquiry and
    decision at his end. The Deputy Commissioner gets
    jurisdiction under Section 39 of the Act and then
    decides the duty and also the penalty leviable on the
    insufficiently stamped instrument. In this background,
    we take note of the principle laid down on the
    distinction in the discretion available to Every
    Person/Court and the discretionary jurisdiction
    conferred on the District Registrar. See, United
    Precision Engineers (supra) and Gangappa (supra). The
    settled distinction and discretion available under
    Sections 34 and 39 of the Act is no more res integra.”

    6.6 In the case of Mungi Devi vs. Ramlal, S.B. Civil Writ Petition

    No. 25010/2025, decided on 19.01.2026, a Co-ordinate Bench of

    this Court at Jodhpur, while placing reliance on the earlier

    judgment of the Division Bench of this Court in Sanjeev

    Bhardwaj and Ors. vs. Yogeshwar Swaroop Bhatnagar and

    Ors.; 2020 (3) RLW 2574 (Raj.), elaborately explained the

    manner in which an impounded instrument is to be dealt with.

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    The relevant paragraph is reproduced hereinbelow for ready

    reference:

    15. The reliance placed by the petitioner upon the
    judgment passed in the case of Sanjeev Bhardwaj
    (supra) is very much relevant, where upon a reference
    made by the learned Single Judge, a specific Issue
    No.3 was framed and decided by the Hon’ble Division
    Bench of this Court. For ready reference, the Issue
    No.3 as framed is quoted below:-

    “Whether on production of unstamped document,
    Court is duty bound to determine the stamp fee
    along with penalty, as per Section 35(1) of the
    Act or to impound the same under Section 33 of
    the Act and send the same to the Collector for
    determination of stamp duty and penalty in order
    to make the document admissible?”

    16. The said issue has been answered by the learned
    Division Bench in affirmative. The relevant Para Nos.
    30 to 37 reads as under:-

    “30. Adverting now to the third question whether
    the Court is bound to follow the procedure
    provided in Sections 33 and 35 of the Stamp Act,
    1899, we shall presently deal with the scheme of
    the legislation with reference to provisions of the
    Rajasthan Stamp Act, 1998. Section 39 of the
    Rajasthan Stamp Act is corresponding to Section
    35
    of the Indian Stamp Act, 1899, which
    mandates that no instrument chargeable with
    duty under the 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

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    such instrument is duly stamped. Significantly,
    neither Section 37 of the Rajasthan Stamp Act
    (Section 33 of the Stamp Act, 1899), nor Section
    39
    of the Rajasthan Stamp Act (Section 35 of the
    Stamp Act, 1899), contain a proviso like Section
    49
    of the Registration Act enabling the Court to
    use an instrument for collateral purpose, which
    though is chargeable to stamp duty, but is
    unstamped or insufficiently stamped. Language of
    both these provisions is peremptory in nature and
    mandates that the Court cannot use such
    document for any purpose whatsoever.The Stamp
    Act
    casts a duty upon every Court, i.e., a person
    having by law authority to receive evidence, to
    examine the instrument in order to ascertain
    whether it is duly stamped, and if the Court
    comes to the conclusion that the instrument is not
    duly stamped, it has to mandatorily impound the
    same and deal with it as provided under the Act.
    The mandatory nature of the Act is evident from
    the use of the word “shall” both in Section 37 and
    39 of the Rajasthan Stamp Act, which are
    analogous to Sections 33 and 35 of the Stamp
    Act, 1899.

    31. The Supreme Court in Government of A.P. vs.
    P. Laxmi Devi
    (2008) 4 SCC 720 held that it is
    incumbent upon the Court to impound the
    document unstamped or insufficiently stamped.
    Para 16 of the report, which is relevant, is
    reproduced hereinunder:

    “16. A perusal of the said provision shows
    that when a document is produced (or
    comes in the performance of his functions)
    before a person who is authorized to
    receive evidence, and a person who is in

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    charge of a public office (except a police
    officer), before whom any instrument
    chargeable with duty is produced or comes
    in the performance of his functions, it is the
    duty of such person before whom the said
    instrument is produced to impound the
    document if it is not duly stamped. The use
    of the word ‘shall’ in Section 33(1) shows
    that there is no discretion in the authority
    mentioned in Section 33(1) to impound a
    document or not to do so. In our opinion,
    the word ‘shall’ in Section 33(1) does not
    mean ‘may’ but means ‘shall’. In other
    words, it is mandatory to impound a
    document produced before him or which
    comes before him in the performance of his
    functions. Hence, the view taken by the
    High Court that the document can be
    returned if the party does not want to get it
    stamped is not correct.”

    32. Another significant question of law which
    arises for consideration is whether on impounding
    the instrument, the court should on its own
    collect the deficient stamp duty and penalty as
    envisaged in Section 39 of the Rajasthan Stamp
    Act or after impounding such instrument, send
    the same to the Collector for the needful. Clause

    (a) of proviso to Section 39 stipulates that the
    impounded 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 (ii) a penalty at the rate
    of two percent of the amount of the deficient duty

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    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. Clause (e) of the proviso to Section
    39
    further clarifies it by providing that 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. In
    contrast, Section 37(1) of the Rajasthan Stamp
    Act provides that if a document is produced
    before a person or a public office having authority
    in law to receive evidence, which in his opinion is
    chargeable to stamp duty and is not duly
    stamped, shall impound the same. Section 37(4)
    provides that such person shall forthwith make a
    reference in that matter to the Collector. Sub-
    section (5) of Section 37 then provides that
    Collector may suo-moto or on such reference, call
    for the original instrument for ascertaining
    whether it is duly stamped and the instrument so
    produced shall be deemed to have been produced
    or come before him in the performance of his
    functions and in case the original instrument is
    not produced within the period specified by the
    Collector, he may require the payment of the
    proper duty or the amount required to make up
    the same together with the penalty under section

    44. Sub-section (1) of Section 42 of the
    Rajasthan Stamp Act provides that when the
    person having authority of law or consent of the
    parties to receive evidence, impounds an
    instrument under Section 37 and admits such

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    instrument in evidence upon payment of a
    penalty as provided by Section 39 or of duty as
    provided by Section 41, shall sent to the Collector
    an authenticated copy of such instrument,
    together with a certificate in writing, stating the
    amount of duty and penalty levied in respect
    thereof, and shall sent such amount to the
    Collector, or to such person as he appoints in this
    behalf. Sub-section (2) of Section 42 further
    provides that in every other case, the person so
    impounding an instrument shall send it in original
    to the Collector.

    33. The important aspect which is required to be
    considered also at this juncture is whether the
    Court impounding the document has any
    discretion to charge lesser penalty than what has
    been provided for by Section 39 of the Rajasthan
    Stamp Act. In this connection, reference may be
    made to Section 44 of the Rajasthan Stamp Act,
    which provides for power of the Collector to
    stamp the impounded instrument. Section 44(1)

    (b) provides that when the Collector receives an
    instrument sent to him under sub-section (2) of
    Section 42, chargeable with a duty under this
    Act, he shall, if in his opinion, such instrument is
    duly stamped or is not chargeable with duty,
    certify so by endorsement on such document or if
    he is of opinion that such instrument is
    chargeable with duty and is not duly stamped, he
    shall require the payment of proper duty or the
    amount required to make up the same, together
    with 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 unstamped or insufficiently

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    stamped or twenty five percent of the deficient
    stamp duty, whichever is higher, but not
    exceeding two times the deficient stamp duty.
    Sub-section (2) of Section 44 then provides that
    every certificate under clause (a) of sub-section
    (1), shall for the purpose of this Act, be
    conclusive evidence of matters stated therein.
    Sub-section (3) of Section 44 further provides
    that where an instrument has been sent to the
    Collector under sub-section (2) of Section 42, the
    Collector shall, when he has dealt with it as
    provided by this section, return it to the
    impounding officer. But the Collector under
    Section 43 of the Act has been conferred with a
    discretion to refund whole of the penalty paid in
    respect of an instrument, which has been
    impounded and sent to him under sub-section (1)
    of Section 42 only because it has been written in
    contravention of Section 13 or Section 14. No
    such discretion, however, has been conferred on
    the Court.

    34. The Supreme Court in a recent judgement in
    Gangappa & Anr. vs. Fakkirappa-(2019) 3 SCC
    788 in the scope of Section 34 of the Karnataka
    Stamp Act 1957 (analogous to Section 39 of the
    Rajasthan Stamp Act) was considering the
    question whether the trial court while admitting
    an insufficiently stamp document, could have
    exercised its discretion in imposing penalty 2
    times of deficient amount of stamp duty or it was
    obligatory for the trial court to impose the
    penalty at the rate of 10 times. Analysing the
    provision of Section 38 of the Karnataka Stamp
    Act (which is analogous to Section 43 of the
    Rajasthan Stamp Act), the Supreme Court held

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    that the Deputy Commissioner under that
    provision is empowered to refund any portion of
    the penalty in excess of five rupees, which has
    been paid in respect of such instrument. Since
    sub- section (1) of Section 38 uses the
    expression “if he thinks fit”, he also has the
    discretion to impose penalty of 10 times in the
    facts of the particular case. Affirming the view of
    division bench of the Karnataka High Court in
    earlier judgement of Digambar warty and Ors.
    vs. District Registrar, Bangalore Urban District
    and Anr., ILR 2013 KAR 2099 that there is no
    discretion vested with the authority impounding
    the document in the matter of collecting duty
    under Section 33 and 34, the Supreme Court
    held that the word “shall” used in those
    provisions has rightly been interpreted by the
    High Court. Analogous provisions to these
    Sections are Section 37 and 39 of the Rajasthan
    Stamp Act, which also uses the word “shall”,
    leaving no discretion to the Court to impose a
    penalty other than the one prescribed
    thereunder.

    35. It shall be in this connection apposite to refer
    to the judgement of Supreme Court in Peteti
    Subba Rao vs. Anumala S. Narendra-(2002) 10
    SCC 427 wherein it was held that the Court can
    admit such instrument only on payment of deficit
    stamp duty with 10 times of the penalty
    suggested as a way out. It was further held that
    when a person is not willing or cannot afford to
    pay the same, the only available course open for
    the Court to adopt is the one envisaged in
    Section 38 of the Stamp Act (analogous to
    Section 42 of the Rajasthan Stamp Act). The

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    following discussion made by the Supreme Court
    in para 6 of the report is worth quoting:

    “6.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
    xxxxxxxxxxx
    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

    We find some force in the said plea. In a
    case where the party fails to pay the penalty
    suggested by the Court, the document
    impounded has to be sent to the Collector
    for the purpose of taking further steps in
    respect of that document as provided in
    Section 40 of the Act. The Collector has the
    power to require the person concerned to
    pay the proper duty together with a penalty
    amount, which the Collector has to fix in
    consideration of all aspects involved. The
    restriction imposed on the Collector in
    imposing the penalty amount is that, under
    no circumstances, the penalty amount shall
    go beyond ten times the duty or the
    deficient portion thereof. That is the farthest
    limit, which means only in very extreme
    situations the penalty need be imposed up
    to that limit. It is unnecessary for us to say
    that the Collector is not required by law to
    impose the maximum rate of penalty as a
    matter of course whenever an impounded
    document is sent to him. He has to take into
    account various aspects, including the
    financial position of the person concerned.”

    36. The Supreme in Chila Kuri Gangulappa vs.
    Revenue Divisional Officer-(2001) 4 SCC 197
    also similarly held that if the appellant agrees to
    remit the amount of stamp duty and the penalty,
    the Court can proceed with the trial after

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    admitting the document in evidence. If, however,
    he is unwilling to do so, the Court shall forward
    original of the document itself to the Collector for
    the purpose of adjudicating the question of
    deficiency of the stamp duty. The following
    observation in para 13 of the report, are worth
    quoting:

    “13. In the present case, the trial court
    should have asked the appellant, if it finds
    that the instrument is insufficiently
    stamped, as to whether he would remit the
    deficient portion of the stamp duty together
    with a penalty amounting to ten times the
    deficiency. If the appellant agrees to remit
    the said amount, the Court has to proceed
    with the trial after admitting the document
    in evidence. In the meanwhile, the Court
    has to forward a copy of the document to
    the Collector for the purpose of adjudicating
    on the question of deficiency of the stamp
    duty, as provided in Section 40(1)(b) of the
    Act. Only if the appellant is unwilling to
    remit the amount, the Court is to forward
    the original of the document itself to the
    Collector for the purpose of adjudicating on
    the question of deficiency of the stamp
    duty. The penalty of ten times indicated
    therein is the upper limit, and the Collector
    shall take into account all factors concerned
    in deciding as to what should be the proper
    amount of penalty to be imposed.”

    37. In the light of the discussion aforesaid, the third
    question whether on production of unstamped
    document, the Court is duty bound to determine the
    stamp fee along with penalty, as per Section 35(1) of

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    the Act or to impound the same under Section 33 of
    the Act and send the same to the Collector for
    determination of stamp duty and penalty in order to
    make the document admissible, is answered in the
    terms that if any instrument is presented before the
    Court, which is not duly stamped or insufficiently
    stamped, the Court is duty bound to impound the
    same and; (i) if the party who produces such
    instrument in evidence is willing to pay the stamp duty
    or deficit stamp duty together with amount of penalty,
    to determine the same and upon deposit of the
    amount, so determined, with the Court, it shall be
    open for the Court to admit the instrument in
    evidence, or; (ii) in the event, however, the party
    which produces such instrument does not agree or is
    unable to remit the amount of stamp duty/deficit
    stamp duty and the penalty, the Court shall send the
    impounded instrument to Collector for determination of
    stamp duty and penalty, which shall be, only upon
    production/receipt of the certificate/endorsement of
    deposit thereof, received in evidence.”

    (Emphasis Supplied)

    6.8 This Court finds that the above reproduced provisions and

    judgments squarely explains the question in consideration to the

    facts of the present case. Therefore, this Court opinions that

    learned trial Court has committed a gross illegality in passing the

    impugned order. This Court also finds that the learned District and

    Sessions Judge, Jhalawar has not followed the judgment passed

    by this Court on 16.12.2025, resulting in filing of the present writ

    petition. It is a settled principle of law that whenever an

    insufficiently stamped document comes before any authority,

    including a Court, it is incumbent upon such authority either to

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    impose the requisite stamp duty along with a penalty if party

    agrees or to refer the document to the competent authority, if the

    party do not agree. Merely stating that the document is

    impounded and to be kept in record does not satisfy the

    requirements of the Act of 1998.

    6.9 Therefore, this Court finds that the impugned order is liable to

    be quashed and set aside. Accordingly, the present writ petition is

    hereby allowed and the impugned order dated 19.01.2026 stands

    quashed and set aside.

    6.10 Furthermore, the learned District Judge is directed to follow

    the procedure prescribed under the Act of 1998 after impounding

    an insufficiently stamped document.

    6.11 As regards the issue of inadmissibility of the document on

    the ground of non-registration, the same is left open to be

    considered and decided by the learned Trial Court at the stage of

    final judgment. It is, however, clarified that the learned Trial Court

    shall consider the document in accordance with the settled legal

    position governing, if the document is sought for collateral

    purposes then it shall be read in evidence but if the substantive

    claim has been made on the basis of the document, the same

    shall be ignored.

    6.12 Pending application(s), if any, stands disposed of.

    (BIPIN GUPTA),J

    Sudha/68

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