Rahim Paray vs Mst. Janti

Shahmiri, J.—The only point that really falls for determination in this revision application directed against an interlocutory order of Munsiff,

Anantnag, is whether the document produced by the Plaintiff applicant in this case is a will or a deed of adoption and whether the trial Court was

right in admitting it in evidence only on payment of Rs. 20/-as duty and Rs. 200/- as penalty under proviso (1) to Section 35 of the Jammu and

Kashmir Stamp Act, 1977.

I have heard counsel for the parties. A preliminary objection was raised by the learned Counsel for the non-applicant that the revision was not

the proper remedy for the applicant and that u/s 39 of the Stamp Act the Plaintiff could approach the Collector and obtain refund of the whole

penalty if his objection was well-founded. I am not clear if Section 39 would apply in this case as the document has not, in fact, been impounded

by the trial Court.

The next point taken by counsel for the non-applicant is that u/s 61 of the Stamp Act the Court to which appeals lie from or references are made

by, trial court can take such order into consideration and, therefore, the applicant should move the District Court. I, however, do not see anything

in Section 61 of the Stamp Act which could prevent this Court from exercising its revisional jurisdiction in the matter. I am supported in this

conclusion by AIR 1943 169 (Oudh) to which my attention has been drawn by the learned Counsel for the applicant.

The relevant provision in Section 61 of the Stamp act was considered by the Oudh Chief Court and it was held that there was no reason to think

that the word 'Court' as used in Chapter VI of the Stamp Act in which Section 61 is included has any meaning other than that which the same

word bears in Section 115, Civil Procedure Code. The heading of the Chapter, namely, Reference and Revision, supports the conclusion that the

power of the High Court in this respect, which it has u/s 115, C.P. Code, remains unaffected. The preliminary objection is, therefore, overruled.

3.On the merits I have gone through the document with care. It clearly defines the person executing the document as testator and it leaves the

property to tire Plaintiff after the testator's death. Assigning the reason for this testamentary disposition of property the testator has recited in the

will that the Plaintiff, who lives with him and whom he has brought up as an adopted son, has been rendering him loyal and faithful service.

(His Lordship considered the document and concluded:)

For these reasons I hold that the document in question is a will and not a deed of adoption and I accept this revision application. The trial Court

shall treat the document as directed above and shall proceed to determine the case according to law. Costs shall abide the event.