# JUPUDI KESAVA RAO v. PULAVARTHI VENKATA SUBBARAO AND OTHERS

- **Citation:** [1971] 3 S.C.R. 590
- **Court:** Supreme Court of India
- **Decided:** 1971-01-29
- **Case number:** Civil Appeals Nos. 2535 to 2537 of 1966
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jupudi-kesava-rao-v-pulavarthi-venkata-subbarao-and-others-5205
- **Pages:** 14

## Headnote

Stamp Acl• (2 of 1899)-Section 35,
36-Evldence-Reception of
secondary evidence Of document insufficient:ly stamped-"Jnstrument" in
ss. 35 and 36, if includes copy of document.
On the question whether reception of secopdary evidence of a written
agr~ement to grant a lease, insufficiently stamped, is barred by the provisions of sections 35 and 36 G: the Stamp Act,
HELD :the first limb of Section 35 clearly shuts out from evidence
any instrument chargeable with duty unless it is duly stamped. The second
liml> of !hq seC'tion which relates to acting upon the instrument will obviousl r shut out any secondary evidence of such instrument, for, allowing
such evidence to be let in when .the original admittedly chargeable with
duty was not stamped or insufficiently stamped, would have the effect of
the document being "acted upon" by the person having by law or authority
to receive evidenee, Proviso (a) is applicable only when the original instru!llent is actually before the court of law and the deficiency in stamp
with penalty is paid by the party seeking to rely· upon the document.
Clearly, secondary evidence either by way of oral evidence of the contents
of the unstamped document or the copy of it covered by section 63 of
the Indian Evidence Act would not fulfil the requirements of the proviso
wbich enjoins upon the authority to receive nothing in evidence except the
inst~ument itself. There is no scope for inclusion of a copy of a do-:ument
as an instrument for the purpose of the Stamp Act. [596 DJ
If Section 35 only deals with original instruments and not copies, section 36 cannot be so interpreted so as to allow secondary evidence of an
instrurrient to have its benefit.
The words "an instrument" in Section 36
must have. the same meaning as in Section 35. The legislature only relented from the st'rict provisions of Section 35 .in cases where the original
instrument was admitted in evidence without objection at the initial stage
of a suit or proceeding. [596 HJ
Stflle nf Bihar v. Karam Chand Thapar & Bros. Ltd. [1962J 1 S.C.R.
827; Raja of Bobbili v. Inuganti China Sitaramaswami Garn, 23 Madras
49, Thaiji Reebi v. Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram v. Mayyappan, A.I.R. 1946 Madras 298, referred to.
Observations in Maung Po Htoo and three v. Ma Ma Gyi and one,
LL.R. 4 Rangoon 363 and Saf!/IG·vati v. Pal/ayya, AJ.R. 1937 Madras 431
at 432, disapproved.
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Ponnuswami v, Kailasar!1,,A.l.R. 1947 Madras 422, and A/imana
Sahiba v. Subbarayudu, A.LR. 1932 Madras 69'3, explamed..
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CML APPELLATE JURISDICTION: Civil Appeals Nos. 2535 to
2537 of 1966.
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J. K. RAO v. P. v. SUBBARAO (Mitter, J.)
591
Appeals by special \eave from the judgment and decree dated
September 22, 1966 of the Andhra Pradesh High Court in Second
Appeals Nos, 875 of 1961, 488 and 516 of 1962.
A. K. Sen, A. V. Rangam and T. Raman, for the appellant
(in all the appeals) :
B. V. Subramanyam and B. Parthasarathy, for respondents
"'los. 1 and 2 (in all the appeals).

## Text

590
JUPUDI KESAVA RAO
v.
PULAVARTHI VENKATA SUBBARAO AND OTHERS.
January 29, 1971
[G. K. MITTER AND A. N. RAY, JJ.]
Stamp Acl• (2 of 1899)-Section 35,
36-Evldence-Reception of
secondary evidence Of document insufficient:ly stamped-"Jnstrument" in
ss. 35 and 36, if includes copy of document.
On the question whether reception of secopdary evidence of a written
agr~ement to grant a lease, insufficiently stamped, is barred by the provisions of sections 35 and 36 G: the Stamp Act,
HELD :the first limb of Section 35 clearly shuts out from evidence
any instrument chargeable with duty unless it is duly stamped. The second
liml> of !hq seC'tion which relates to acting upon the instrument will obviousl r shut out any secondary evidence of such instrument, for, allowing
such evidence to be let in when .the original admittedly chargeable with
duty was not stamped or insufficiently stamped, would have the effect of
the document being "acted upon" by the person having by law or authority
to receive evidenee, Proviso (a) is applicable only when the original instru!llent is actually before the court of law and the deficiency in stamp
with penalty is paid by the party seeking to rely· upon the document.
Clearly, secondary evidence either by way of oral evidence of the contents
of the unstamped document or the copy of it covered by section 63 of
the Indian Evidence Act would not fulfil the requirements of the proviso
wbich enjoins upon the authority to receive nothing in evidence except the
inst~ument itself. There is no scope for inclusion of a copy of a do-:ument
as an instrument for the purpose of the Stamp Act. [596 DJ
If Section 35 only deals with original instruments and not copies, section 36 cannot be so interpreted so as to allow secondary evidence of an
instrurrient to have its benefit.
The words "an instrument" in Section 36
must have. the same meaning as in Section 35. The legislature only relented from the st'rict provisions of Section 35 .in cases where the original
instrument was admitted in evidence without objection at the initial stage
of a suit or proceeding. [596 HJ
Stflle nf Bihar v. Karam Chand Thapar & Bros. Ltd. [1962J 1 S.C.R.
827; Raja of Bobbili v. Inuganti China Sitaramaswami Garn, 23 Madras
49, Thaiji Reebi v. Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram v. Mayyappan, A.I.R. 1946 Madras 298, referred to.
Observations in Maung Po Htoo and three v. Ma Ma Gyi and one,
LL.R. 4 Rangoon 363 and Saf!/IG·vati v. Pal/ayya, AJ.R. 1937 Madras 431
at 432, disapproved.
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Ponnuswami v, Kailasar!1,,A.l.R. 1947 Madras 422, and A/imana
Sahiba v. Subbarayudu, A.LR. 1932 Madras 69'3, explamed..
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CML APPELLATE JURISDICTION: Civil Appeals Nos. 2535 to
2537 of 1966.
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J. K. RAO v. P. v. SUBBARAO (Mitter, J.)
591
Appeals by special \eave from the judgment and decree dated
September 22, 1966 of the Andhra Pradesh High Court in Second
Appeals Nos, 875 of 1961, 488 and 516 of 1962.
A. K. Sen, A. V. Rangam and T. Raman, for the appellant
(in all the appeals) :
B. V. Subramanyam and B. Parthasarathy, for respondents
"'los. 1 and 2 (in all the appeals).
The Judgment of the Court was delivered by
Mitter, J. The maip. question in these three appeals is, whe.
ther reception of secondary evidence of a written agreement to
grant a lease is barred by the provisions of ss. 3 5 and 3 6 of the
Indian Stamp Act.
·
The relevant facts are as follows.
There is a rice nlill in
Bhimavaram, West Godavari Distrj.ct, which was formerly owned
by the appellant along with respondents 3, 4 and 5. The mill was
built on a site with an area of Ac. 1-75 by one K. N. Raju who
had obtained a lease thereof from the guardian of respondents 1
and·2. It was executed on 21st December 1941 and was to expire
on 17th July 1956. The appellant and respondents 3, 4 and 5
were successors-in-interest of the said leasehold rights. Respondents 1 and 2 served notice of ejectment on the lessees to quit the
site and deliver possession on the expiry of the said lease.
According to the lessees there were negotiations for a new
lease.
Respondents 1 and 2 demanded enhanced rent and an
agreement was ultimately arrived at on January 6, 1957 between
the appellant and respondent No. 5 for themselves and on behalf
of respondents 3 and 4 on the one hand and respondents 1 and
2 on the other for grant of a new lease for a period of thfoty years
commencing on January
1, 1957. The rent was
fixed at
Rs. 540/- per annum payable every two months. There was an
option given to the lessors to purchase the rice mill at a price to
be fixed by the President of the Rice Mills' Association but in case
the said option was not exercised, the lessees were entitled to remove the structures of the mill. The lessees were to continue in
possession and a deed of lease was to be executed and registered
within a short time.
The agreement was written on two sremp
papers of Rs. 0-12-0 each and signed by the appellant and the 5th
respondent on the one hand and respondent No. 1 on his own
behalf and on behalf of respondent No. 2.
The document was
delivered to the respondent No. 1 aftX:r execution.
The appellant's further case is that thereafter he effected considerable improvements to the mill costing about Rs. 30,000/-
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SUPREME COURT REPORTS
(1971} 3 S.C.R.
and purchased the shares of respondents 3 and 4 in the said mill
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but respondent No. 5 who had originally joined the appellant in
the suit for specific performance of the said agreement sold his
share in or about September 1965 to respondent No. 6 herein.
On March 12, 1957 respondents 1. and 2 instituted a suit
O.S. No. 81 of 1957 in the court of the Distriot Munsif of Bhimavaram against the appellant and responde!lts 3, 4 and 5 besides
certain other persons who were in occupation of the site, for re•
covery of possession after removinz the rice mill and structures
standing thereon on the basis that on the expiry of the old lease
they had be'Come entitled to possession.
Respondents 1 and 2
instituted another suvt O.S. No. 100 of 1957 on 4th April, 1957
in the same court claiming damages from the appellant and respondent No. 5 for failure to deliver 'Ille site from 1st January, 1957
till dare of delivery of possession. In paragraph 6 of the plaint in
this sui~ they expressly stated that they would file a separate suit
to recover the future mesne profits. The total claim in this suit
was computed at Rs, 4,700/- being the amount due for 94 days
from 1st January, 1957 to 4th Apiil, 1957 at the rate of Rs. SO/-
per day. On April 5, 1958 the appellant and respondent! No. 5
instituted O.S. No. 92 of 1958 against respondents 1 to 4 praying
for specific performance of the agreement to lease mentioned above
with a direotion that the respondents 1 and 2 should execute the
lease deed. By their written statement filed in O.S. No. 92 of 1958
respondents 1 and 2 denied the execution of the agreement to lease
while in the two suits for recovery of possession and damages for
illegal occupation the appellant and respondent No. 5 pleaded the
aforesaid agreement for lease in defence and submitted that they
were entitled to remain in possession without any liability as to
damages.
The three suits were tried together. As respondents 1 .ihl.d 2
did not produce the original agreement which according to the appellant had remained with them, oral evidence was called by the
appellant to prove the execution of the said document. In his
judgment the learned Munsif held:
"The plaintiffs have no right to lead any oral evidence
in respect of the suit agreement to lease dated 6-1-1057.
However, in order to appreeiate the case put forward
by the plaintiffs in the absence of the agreement to.lease
oral evidence has been recorded to determine whel!her
the plaihtiffs are entitled to specific eerformance as the
full facts must be before the court. '
Examining the evidence the learned Munsif recorded his finding
that;
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J. K. RAO v. P. v. SUBBARAO (Mitter, I.)
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"The plaintiffs on whom the burden lies have not
proved by evidence of P.Ws. 1 to 5 and 7 which is interested and developed that the
agreement to lease
dated 6-1-1957 is true and valid."
O.S. No. 92 of 1958 was therefore dismissed. O.S. No. 81 of
1957 was decreed against the appellant and others and they were
directed to deliver vacant and peaceful possession after re)lloving
the constructions and the mill thereon on or before 9th July 1960.
Suit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for Rs. 117-2-10.
The Subordinate Judge, Narsapur who heard the appeals from
the judgment and decrees of the learned Munsif set them aside.
The suit for specific performance of the contract of agreement to
lease was decreed and defendants 1 and 2 in that suit were directed
to execute and register a lease deed from 1st January, 1957. He
accepted the oral evidence tendered on behalf of the plaintiffs in
that suit and recorded that the objectio11-c.regarding the admissi•
bility of the oral evidence was raised only at the time of the arguments on the ground that the agreement was written on a stamp
paper of Rs. 1-8-0 when it should have been written on a paper
with a stamp of Rs. 60/-. According to the learned Subordinate
Judge the defendants had suppressed the agreement to lease whereby the plaintiffs were deprived of the opportunity of making good
the deficiency of the stamp. The learned appellate Judge held
further that the conditions mentioned in s. 'l.7-A of the Specific
Relief Act had been fulfilled. He also found that the parties were
contemplating the execution of a deed of lease subsequent to the
agreement and the mere fact that plaintiffs continued their possession aftler thtNlXpiry of the period of the previous lease did n6t
take the case out of the purview of s. 27-A of the Specific Relief
Act.
The High Court in Second Appeal went elaborately into the
question of the admissibility of the oral evidence regarding the
agreement to lease and held that.
"although the objection was raised by defendants 1
and 2 in the trial court at the time of the final agruments
and not before the oral evidence was received in regard
to the admissibility of oral evidence, even then since sec-
- ti on 3 6 is not attracted to such an objection, the oral
evidence cannot be acted upon. It is inadmissible in evidence and it cannot be received for any purpose."
The appellant before us challenges this finding of the High Court.
Learned counsel for the appellant Mr. Sen argued that die
admissibility of secondary evidence, be it oral or in writing, must
594
SUPREME COURT REPORTS
[ 1971] 3 S.C.R.
be primarily decided in tenns of the Indian Evidence Act. Inasmuch as the original document which was insufficiently stamped
was suppressed by the defendants in the suit for specific performance, secondary evidenee of the contents of the document could
be Jed in terms of s. 65(a) of the Evidence Act. The Evidence
Act imposed no bar to the reception of oral evidence by way of
secondary evidence to prove the terms of the agreement to lease
which was in writing and duly executed. According to counsel
the Stamp Act did not create a bar with respect to the reception
of secondary evidence to prove a document which was unstamped
or insufficiently stamped in any case where the party seeking tlo
rely upon the execution of the document and the tenns thereof
offered to pay the peniilty in terms of s. 35 of the Stamp Act.
According to Mr. Sen s. 35 raised a bar only in cases which were
expressly excluded by proviso (a) to s. 35 and in others where the
party seeking to rely on the document was not agreeable to pay
the deficiency in the stamp together with tl\e penalty in terms of
the said proviso. l\fr. Sen further argued that the whole object
of s. 35 of the Stamp Act was that the Government revenue due
by way of stamp should be protected. But even then s. 36 carved
out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted
without objection at the initial stage. It was not reasonable, according to counsel to limit the operation of s. 3 6 only to cases
where rthe original instrument was admitted in evidence without
objection and logically oral evidence to prove the contents of a
document which was insufficiently stamped should be subject to
the same but no further infinnity and once such oral evidence was
recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non-1mxluction of the document, it should be acted
upon by courts of law if the party tendering oral evidence was
agreeable to make up the deficiency in the stamp and pay the
penalty in tenns of s. 35.
We find ourselves unable to accept the submissions made on
behalf of the appallant.
The Indian Evidence Act which was
enacted in 1872 consolidates, defines and amends the law of evi•
dence. By various Chapters it deals with matters as to how facts
are to be proved and w!Jich facts need, not be proved. S. 59 of
the Act lays down that aU facts except the contents of documents
may be proved by oral evidence. Documentary evidence is dealt
With in Chapter V ands. 61 provides that the contents of the document may be proved either by primary evidence or secondary
evidence. Under s. 62 primary evidence means the document itself produced for inspection of the court. S. 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in sub-els.
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(1) to (3} of the section, counterparts of documents as against the
parties who did not execute them in terms of cl. ( 4) and oral accounts
of the contents of a document given by some person who has
himself seen it in terms of cl. (5). Under s. 64 dbcuments must
be proved by primary evidence except in cases mentioned thereafter.
Section 65 allows secondary evidence to be given of the existence,
condition or contents of a document in circumstances specified in
els. (a) to (g) thereof.
Under s. 91 when the relevant portion of
a contract or of a grant or of any other disposition of property has
been reduced to the form of a document, no evidence shall be given
in proof of the terms except the document itself or secondary
evidence ol its contents in cases in which secondary evidence is
admissible under the provisions hereinbefore contained .
, As the first court of appeal recorded the finding that it was
the defendants who were responsible for suppression of the orig!!lal
agreement to lease, a finding which was accepted by the High
Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the pro·
visions of the Indian Evidence Act.
The Indian Evidence Act however does not purport to deal
with the admissibility of documents in evidence which require to
be stamped under the provisions of the Indian Stamp Act. The
Stamp Act which is now in force is an Act of 1899 but it had a
fore-runner in a statute of 1879. Chapter IV of the Stamp Act
deals with instrume!l'ts not duly stamped. Section 33 (1) of this
Act provides that :
"Eyery pers<?n ha~ing by law or consent of parties
authority to receive evidence, and every person in charge
of a public office, except and officer of police, before
whom any instrument, chargeable, in his opinion, with
duty, is produced or comes in the performance of "his
functions, shall, if i1 appears to him that such instrument
is not duly stamped, impound the same."
The relevant portion of s. 3 5 is as below :-
."No ~nstrument chargeable with duty shall be admitt·
ed m 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
!111Y such ~rson or by any public officer, unless such
mstrument 1s duly stamped :-
Provided that-
(a) any ~ch instrument not being an instrument
chargeable with a duty not exceeding ten paise only, or
596
SUPREME COURT REPORTS
[1971] 3 s.c.R.
a bill of exchange or promissory note, sball, subject to
all just exceptions, be admitted in evidence on payment of
the duty with which the same is chargeable, or, in the
case of ah instrument, insufficiently stamped, of the
amount required to make up such duty, together with a
penalty of five rupees,. or, when ten times the amount of
the proper duty or deficient portion thereof exceeds five
rupees, of a sum equal to ten ftimes such duty or portion.
"
Section 36 lays down that :
"Where an instrument has been admitted in evidence,
such admission shall not, except as provided ii;! section
61, be called in qllestion at any stage of the same suit
or proceeding on the ground that the instrument has not!
been duly stamped."
The first limb of s. 35 clearly shuts out.from evidence any instrument chargeable with duty unless it is duly stamped. The
· second limb of it which relates to acting upon the instrument will
obviously shut out any secondary evidence of such mstrument, for
allowing such evidence to be let in when the original admittedly
chargeable wrth duty was not stamped or insufficiently stamped.
would be tantamount to the document being acted upon by the
person having by law or authority to receive evidence. Proviso
(a) is only applicable when the original instrument is actually
before the court of law and the deficiency in stamp with penalty
is paid by the party seeking to rely upon the document. Clearly
secondary evidence either by way of oral evidence of the contents·
of the unstamped document or the copy of it covered by s. 63 of
the Indian Evidence Act would not fulfil the requirements of the
proviso which enjoins upon the authority to receive nothing in
evidence except the instrument itself. S. 35 is not concerned with
any copy of an instrument and a party can only be allowed to rely
on a document which is an instrument for the purpose of s. 35.
'Instrument' is defined in s. 2(14) as including every document by
which any right or liability is, or purports to be created, transferA.
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red, limited, extended, extinguished or recorded. There is no · G
scope for inclusion of a copy of a document as an instrument for
the purpose of the Stamp Act.
If s. 35 only deals with original instruments and not copies
s. 36 cannot be so interpreted as to allow secondary evidence of
an instrument to have its benefit. The words "an instrilment" in
s. 36 must have the same meaning as that in s. 35.
The legislature only relented from the strict provisions of s. 35
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in cases where the original instrument was admitted in evidence
without objection at the. initial stage of a suit or proceeding. In
other words, although the objection is based on the insufficiency
of the stamp affixed to the document, a party who has a right to
object to the recept:ion of it must do so when the document is first
tendered. Once the time for raising objection to the admission of
the documentary evidence is passed, no objection based on the
same ground can be raised at a later stage. But this in no way
extends t;he applicability of s. 3 6 to secondary evidence adduced
or sought to be adduced in proof of the contents of a document
which is unstamped or iJJ.sufficiently stamped.
The above is our view on the_ fJ.Uestion of admissibility of
secondary evidence of a document which is unstamped or insl!fficiently stamped, as if the matter were res integra. It may be
noted however that the course of decisions m India in the Indian
High Curts, barring one or two exceptions, have consistently taken
the same view.
One of the earliest decismns is the judgment of the Judicial
Committee of the Privy Council in Raia of Bobbili v. ln11ganti
China Sitaramaswami Garu (1). In this case a suit was brought
by the Raja of Bobbili to obtain the proprietary possession of an
estate orice belonging to the family. The original defendant was
the widow of a son of the sister of the plaintiff's paternal grandfather, a former Raja of Bobbili, by whom the estate, the subject
of dispute was granted by a deed of April 5, 1848 to a cousin
who had then married the then Raja's sister. The donee died in
1872, and his widow thereupon r.:stored the estate to the Raja on
tile footing that the grant had been only for her husband's life.
The Raja then granted the estate to another cousin who died in
the same year. This was the husband of the original defendant.
It was necessary for the Raja to show that the grant of 1848 was
absolute and unconditional. The deed of grant was however not
forthcoming haVIng been lost. The question was whether the draft
or a copy, of the instrument tendered as secondary evidence of i~
contents when the original instrument was shown to have been
insufficiently stamped, could be subjected to the penalty prescribed
by section 34 of the Indian Stamp Act, 1879 as a preliminary to
its being admissible in evidence. The respondent denied that such
a deed was ever execu~d and averred that the gift consisted in
transfer~ing the estate. to the donee's name in the register, upon
the footmg that the estate was to revert to the donor, in the event
of !11~ donee lea~ing ~o heir male of his body. At the trial the
~lamtiff offered m evidence what pμrported to be an unauthenticated copy and the defendant objected to the admission of the
(I) 23 Madras 49
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[1971] 3 s.c.R.
same on the ground that it was the copy of a document w~ch
was insufficiently stamped. The District Judge refused to receive
the document or allow it to be proved and dismissed the suit. The
appeal to the High Court of Madras was also unsuccessful, the
.learned Judges of the High Court holding 'that :
"The copy should not be admi~ed on payment of a
penalty, for the provision of the Stamp Act regarding
penalty (section 39 of Act I of 1879) prescribes that such
·payment shall be endorsed on the document and presupposes that the <!.ocument is forthcoming."
Before the Judicial Committee counsel for the appellant admitted
that he was not in a position to dispute that the original deed of
gift dated 1848 had not been sufficiently stamped in terms of the
Madras Regulation XIII of 1816 and that he would be unable to
maintain his claim for the estate unless he was permitted to prove
the copy·of..the deed and use it as secondary evidence either on due
payment of a penalty in court, or upon its endorsement by the
Collector. He based his right to that remedy on the provisions
of the Stamp Act ()f 1879. The Judicial Committee held on,the
construction of the said Act that the judgment appealed from
was correct observing :
"These clauses throughout deal with, and exclusively
refer to, the admission as evidence of original documents
. which, at the time ()f their execution, were not stamped
at all, or were insufficiently stamped. It is only upon
production of the original writ, that the Collector has
the power given him, or the duty imposed upon hiin,
of assessing and charging the penalty, a duty which he
must, in that case, perform by writing an indorsement
upon the writ submitted to him, which then, and not tjll
then, becomes probative in law."
Reference was made to s. 33 of the Act of 1879 which is in pari
materia withs. 33 of the Act of 1899. S. 34 of the Act of 1879
was on the sallle Jines as the present s. 35. The Board further
held that the effect of granting the remedy which th.e appellant
maintained he was entitled to would be to add to the Act of 1879,
a provision which it did noti contain, and which the Legislature
of India, if the matter had been brou~bt under their notice, might
possibly have declined to enact.
More than sixty years after the above deci~ion this Court observed that the:: law laid down 1jhere was well settled and that a
copy of an instrument could not be validated : The State of Bihar
v.Karam Chand Thapar & Bros Ltd.(1). It is not necessary to
(I) [1962] l S.C.R. 827.
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examine the facts of that case except to note that the contenti~n
put forward was whether an instrument i.e. an award received; m
court which had been pr~pared in triplicate, the other two havmg
been sent to the parties, was an original instrument which could
]le used by the payment of stamp duty under s. 35 of the Stamp
Act and validated. This Court held that although the document
sent to the court was marked as a certifi.~d copy, it was in reality
an original instrument for the purpose of the Stamp Act
The above judgment shows that if the document tendered in
court was not an original instrument but a copy the decision would
have been otherwise. However we may point out that the passage
which oi:curs at page 835 of the report (reproduced hereinafter in
part) as being quoted from the decision. of the Judicial Committee
is not to be found in their Lordships' judgment. The latter por-
- tion of the passage occurs in the judgment of the Madras High
Court in- Thaji Beebi v. Tirumalappa Pil/ai(1), but this does not
in any way detract from the weight of the opinion expressed by a
Bench of five Judges of this Court.
In Thaji Bee bi'~ case (supra) the plaintiff sued upon a "cadjan" mortgage which was said to be in possession of the first defendant whose . ancestors were alleged to have . created the mortg~
age in favour of the plaintiffs' ancestors. 'The first defendant denied
the existence of any such deed. The plaintiff examined two witnesses to prove the mortgage one of whom stated that he had
attested the document which was unstamped. Plaintiffs led oral
evidence to prove the mortgage and also put in a petition by the
first defendant's ancestor in which the mortgage was admitted.
No oojection was taken by the defendants to the reception of the
secondary evidence. The trial court found the mortgage proved
but dismissed the suit on the defendants' plea that the plaintjffs'
ancestors had sold away the lands. On appeal the District Judge
upheld the ~ecision on the gr~mnd that the trial coura ought not
to have received secondary eVIdence of the mortgage. The High
Cour~ dismissed the Second Appeal on the same ground. ·The
questto~ as to whether it was open. to the plaintiff ~o rely on the
oral evidence of the alleged execut10n of the instrument and the
alleged passing of possession of the property under that instrument
in. o~der to show t~at that possession operated to create by prescnpt10n only the title of a mortgage in the defendants was answered in the negative by observing :
'
"To hold otherwise would be to give some effect to
the unstamped instrument inasmuch as it would necessary
conn.ect the possession with the contents of the document
relatmg th~~eto; and th~t would be contrary to the express proVIs1ons of sect10n 35 of the Stamp Act which
(1) 30 Madras 336 at 337.
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SUPREME COURT REPORTS
[1971] 3 S.C.R.
lays down that an instrument chargeable with duty shall
not only not be admitted in evidence for any purpose by
any person having by law or consent of parties authority
to receive evidence, but also that it shall not be "acted
upon" by any such person unless duly stamped."
The decision~ of different High Courts make it quite clear
that the cause of the non-production of the original instrument is
immaterial i.e. whether it was lost or whether it was destroyed or
even if it was the allegation of the party seeking to prove its contents by alleging 11hat the document was suppressed by his
-Opponent
In Chidambaram v. Meyyappan(') rthe plaintiffs produced an
unstamped document as the basis of their claim. Before the trial
commenced a mob invaded the court and set fire to it with the
result that records of many cases including the record of the above
case were destroyed.
When the trial commenced the plaintiff
sought to put in a copy of the document and it was objected to
on the ground that the copy could not be stamped even on payment of penalty. The Subordinate Judge without admitting the
document but leaving the question of its admissibility open until
he had heard the arg;uments of counsel, marked it as an exhibit.
In rejecting the plaintiff's appeal the learned Judges of the Madras
High Court referred to the decision of the Privy Council in Raja
of Bobbili's case(') and observed that the destruction by the
mob's action put the plaintiffs in no better position.
Numerous decisions on the point had been referred to by the
learned Judge hearing the Second Appeal in the High Court but
we do not think it necessary to take note of them in any detail.
Mr. Sen relied strongly on certain observations in a judgment of
the Rangoon High Court in Maung Po Htoo and three v. Ma Ma
Gyi and onti1(3 ). This arose ou1 of a suit for administration of
the estate of one Daw Thet San and for a declaration that a deed
of gift executed by him was void. The District Court found that
the deed of gift was void as being a testamentary disposition and
granted a: declaration to that effect. In appeal to the High Court
the decision that the deed of gift was void was not contested and
the only question for decision was whther the adoptions mentioned
therein were proved. The appellants wished to use a certain part
of the deed as evidence to prove that the plaintiff and one Tun
Sein were not adopted while the respondents claimed that it could
not be admitted in evidence for any purpose. The deed itself was
not produced which admittedly had been in possession of Po Htoo
who put in a certified copy alleging that he had lost the original.
On a consideration of the entire evidence the District Judge found
(I) A.l.R. 1946 Madras 298 (2) 23 Madras 49. (3) I.LR. 4 Rangoon 363.
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601
that the original deed of gift was insufficiently stamped.
This
decision was not questioned before the High Court but the appellant claimed that it could not be admissible in evidence and was
not to be considered for any puipose. Referring to the decision
of the Judicial Committee and the passage which we have quoted
already the Judges of the Rangoon High Court remarked that their
Lordship's observation (quoted by us earlier) that:
"Those clauses throughout· deal with, and exclusively refer to, the admission as evidence of original docu~
ments, which , at the time of their execution, were not
stamped at all, or were insufficiently stamped."
did not intend to go as far as their words suggested. According
to the Rangoon Judges :
". . . section 35 of the present Act, read with the
provisions of the Evidence Act, excludes both the original instrwnent itself and secondary evidence of its con·
tents. Similarly, under section 36, when either the original instrument itself or secondary eyidence of its contents has in fact been admitted, that admission may not
be called in question in the $ame suit, on the ground
that the instrument was not duly stamped."
In this view, they held that the terms of the deed of gift could be
considered.
With all respect to the learned Judges it appears to us that
both the premises of the last sentence of the above quotation and
the conclusion based on the same are incorrect. Neither under the
decision of the Judicial Committee nor the express words of s.
34 of the Stamp Act of 1879 mentioned in that judgment (present
section 36) allow the leading of secondary evidence of the contents
of an insufficiently stamped document.
As we have expressed our view already s. 35 imposed a bar
on the reception of any but the original instrument a11d forbade
the reception of secondary evidence. Section 36 only lifted that
bar in the case of an original unstamped or insufficiently stamped
document to which no exception as to admissibility was taken at
the first stage. It did not create any exemption in the case of
secondary evidence which a copy would undoubtedly be. In the
case before the Judicial Committee the copy was one other than
the final draft of the original document which had been lost through
no fault on the part of the person intendlng to P.rove it and yet it
was held that the Stamp Act ruled out its admissibility in evidence.
For the same reason we must hold that the dictunt
in Satyavati v. Pallayya(1) that
(I
A.l.R. 1937 Madras 431 a1 432.
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SUPREME COURT REPORTS
[ 1971] 3 S.C.R.
"S. 35 will also apply when secondary evidence of
an instrument not duly stamped had been wrongly admitted."
is not good law.
Learned counsel for the appellant also relied on the decision in
Ponnuswami v. Kai/a.fam('1). In this case a suit as filed for recovery of the loans whic.h were evidenced as two documents described as hand letters which were admittedly unstamped. Before
the trial stamp duty and penalty was levied by the court on th!l
footing that they were b()nds. The defendant admitted the execution of the two documents but pleaded that in substitution of his
liability under them he had executed a promissory note and had
made payments towards the. same leaving a balance of Rs. 40/-
. only,payable on the loan. Neither party let in any .evidence. The
defendant raised the only contention that the suit was not sustainable on the two documents because they are inadmissible in evidence for any pUrpose.
The learned Judge in revision took the
view that it was not necessary for him to decide as to tjhe. exact
nature of 1the twO documents to determine whether they were admissible in evidence but he went on to add :
"Assuming that these two
documents should not
have legally admitted in evidence, nevertheless it is contended for the petitioner . . . . . that as the defendant
had admitted the execution of the documents and had
only pleaded a substitution of liability by the execution
of another promissory note and a partial discharge towards it there was no necessity for the plain~iff to adduce
proof of his claim by seeking to get the two documents
admitted in evidence. In other words the plaintiff will
be entitled to a decree on the failure of the defendan~
fo make out the plea set up by him in defence."
We do not think this iudgment helps the appellant. If a suit is
based on a document whic:h is admittedly unst;amped the insufficiency of the stlalllp is cured by the payment of penalty.
The
learned Judge never mean to lay down, as is contended for by
Mr. Sen, that the defect of insufficiency of stamp is cured by the
admission of execution of- the document. The learned Judge of
the Madras High Court relied on an earlier decision of that court
in Alimdna Sahiba v. Subbarayudu~•) wherein. a suit had been
filed on a promissory note which_ bore a stamp paper but the same
was· not cancelled. The defendant admitted the execution of the
promissory note sued on but pleaded discharge. Subsequently at
the stage of the argument the d~fendant raised a legal objection
(I) A.LR. 1947 Madras 422.
(2) A.I.R. 1932 Madras 693.
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to the maintainability of the suit on the ground that the st'!ffiP
affixed to the promissory note had not been cancelled as required
by s. 12 of the Stamp Act and contended that the promissory note
should accordingly be treated as unstamped for any purpose. In
Alimana Sahiba's case (supra) the learned Judge stated in clear
terms that:
"Under the provisions of s. 12 (of the Stamp Act)
therefore it must be taken that this promissory note was
not duly stamped and accordingly if any question arose
as to its admissibility in evidence the same may have to
be held to be inadmissible."
The learned Judge however took the view that as facts admitted
need not be proved the circumstance that the promissory note
was not admissible in evidence is immaterial for the purpose of
this case. No doubt the learned Judge added (see at p. 696) :
"Now when once this document has been admitted
in evidence and marked as an exhibit then having regard
to the provisions of s. 36, Stamp Act, its admissibility
could not be re-opened on the ground of 1he docU!Ilent
not having been duly stamped. That position being
clear under the provisions of s. 36, Stamp Act, the whole
discussion would thus seem to be entirely unnecessary
and for no purpose, so far as the facts of this case are
concerned."
It was wholly unnecessary, as was pointed out by the learned Judge
himself, to consider the question of admissibility under s. 36 of
the Act. His decision really rested on the conclusion that a fact
which is admitted did not require proof.
The case is not an authority for the proposition that secondary
evidence of a document is to be treated on the same footing . as
an unstamped or insufficiently stamped original document.
In the result the appeal is dismissed with cbsts.
The respondents m.QVed an applicatidn C.M.P. No .. 87 of 1971
under Order 4 7 Rule 5 o{ the Rl]les of this Court for a direction
that a relief for future mesne profits from the date of the suit be
added to the decree. On the factt of this case we cannot allow
the application. The respondents in their own plaint had stated
that they would file a suit for future mesne profits and it was because of this that the courts below did not grant any such relief,
R.K.P.S.
9-918 Sup. C.I./71
Appeal dismissed.