Case: Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao And Others

the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same 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 considered23. 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 Section 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.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and 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 intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.25. For the same reason we must hold that the dictum in Satyavati v. Pallayya, AIR l937 Mad 431 at p. 432 that"Section 36 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted". is not good law.26. Learned counsel for the appellant also relied on the decision in Ponnuswami v. Kailasam, AIR 1947 Mad 422 . In this case a suit was filed for recovery of two loans which 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 the footing that they were bonds. 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 the exact nature of the two documents to determine whether they were admissible in evidence but he went on to add:"Assuming that these two documents should not have been legally, admitted in evidence, nevertheless 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 another promissory note and a partial discharge towards it there was no necessity for the plaintiff 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 make out the plea set up by him in defence".We do not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant 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 Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 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 defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for any purpose. In Alimane Sahibas case, AIR 1932 Mad 693 (supra) the learned Judge stated in clear terms that:"Under the provisions of Section 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):"How when once this document has been admitted in evidence and marked as an exhibit then having regard to the provisions of Section 36, Stamp Act, its admissibility could not be re-opened on the ground of the document not having been duly stamped. That position being clear under the provisions of Section 30, 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 Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. 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 samped original document.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. The first limb of Section 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 instrument, for allowing such evidence to be let in when the original admittedly chargeable with 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 Section 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. Section 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 Section 35. Instrument is defined in Section 2 (14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where 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 reception 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 the applicability of Sec. 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.15. The above is our view on the question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res integra, It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.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 Section 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.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and 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 intending to prove it and yet it was held that the Stamp Act ruled out its admissibility indo not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant 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 Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 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 defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for anywas wholly unnecessary, as was pointed out by the learned judge himself, to consider the question of admissibility under Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. 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 samped original document.We find ourselves unable to accept the submissions made on behalf of the appellant. The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evidence. By various Chapters it deals with matters as to how facts are to be proved and which facts need not be proved. Section 59 of the Act lays down that all facts except the contents of documents may be proved by oral evidence. Documentary evidence is dealt with in Chapter V and Section 61 provides that thecontents of the document may be proved either by primary evidence or secondary evidence. Under Section 62 primary evidence means the document itself produced for inspection of the Court. Section 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in(1) to (3) of the section, counterparts of documents as against the parties who did not execute them in terms of Clause (4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of Clause (5). Under Section 64 documents 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 Clauses (a) to (g) thereof. Under Section 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 of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.11. As the first Court of appeal recorded the finding that it was the defendants who were responsible for suppression of the original 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 provisions of the Indian Evidence Act.12. 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 ain a statute of 1879. Chapter IV of the Stamp Act deals with instruments not duly stamped.