VIJAY versus UNION OF INDIA & ORS.
[2023] 15 S.C.R. 293, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2023] 15 S.C.R. 293 : 2023 INSC 1030
293
CASE DETAILS
VIJAY
v. 
UNION OF INDIA & ORS.
(Civil Appeal No. 4910 of 2023) 
NOVEMBER 29, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: Whether the bar of admissibility created by 
s.35, Stamp Act 1899 applies to the agreement(s) to sell dtd. 04.02.1988 
executed by the parties; can a copy of a document be adduced as secondary 
evidence when the original instrument is not in possession of the party; and 
whether, in the facts of the present case, would the decision of this Court 
in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao be binding as held 
by both the Courts below?
Stamp Act, 1899 – s.35 – Applicability – Article 23 of Schedule 
1A of the Stamp Act – “conveyance” – Stamp (Madhya Pradesh 
Amendment) Act, 1989 – Stamp (Madhya Pradesh Second Amendment) 
Act, 1990 – Explanation added in Article 23 – Agreement to sell handing 
over possession prior to the amendment brought in the year 1989 or 
1990, if a conveyance so as to be covered u/Article 23 as existing on the 
date of execution of the agreement(s) – Further, the Explanation added 
vide M.P. Act 22 of 1990, if can be read retrospectively so as to apply 
to an agreement to sell executed on 04.02.1988:
Held: The causal amendment was brought in only in 1990, i.e., 
prior to the transaction in question – The amendments that create rights 
and obligations are generally prospective in nature – Clariﬁ cation or 
Explanation must not have the eﬀ
ect of imposing an unanticipated 
duty or depriving a party of an anticipated beneﬁ t – The Explanation 
inserted in Article 23 of Schedule I-A contained in the Act creates a new 
obligation for the party and, therefore, cannot be given retrospective
294 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
application – Thus, it will not aﬀ ect the agreement(s) executed prior to 
such amendments – Further, to impose the bar of admissibility provided 
u/s.35, the twin conditions required to be fulﬁ lled are instrument must 
be chargeable with duty and it is not duly stamped – If the documents 
sought to be admitted are not chargeable with duty, s.35 has no application 
– Thus, in the present case, since the document was dtd.04.02.1988, the 
instrument was not chargeable with duty – Thus, when such document(s) 
are not required to be stamped, then no bar could be imposed due to it 
being not duly stamped – Further, in the present case, the exact status of 
the documents in question could not be ascertained as one party claimed 
that the other had the said documents and the other party allegedly 
stated that it was with her counsel – However, as per records, the said 
documents could not be recovered from the said counsel – In such a 
situation, therefore, the presentation of secondary evidence could be 
allowed, if other requirements are complied with – Plaintiﬀ ’s prayer 
for leading the secondary evidence ought to be allowed in so far as the 
documents sought to be introduced as secondary evidence be taken by 
the concerned Court and exhibited, with its admissibility being decided 
independently, in accordance with law under the Evidence Act – Also, 
Jupadi Kesava Rao is distinguishable on facts – Impugned order of the 
High Court
set aside – Order passed by the Additional District Judge 
allowing the application of the Plaintiﬀ  to ﬁ le a copy of the agreement to 
sell, as secondary evidence, restored – Constitution of India – Entry 44 
of List III – Entry 63 of List II – Evidence Act, 1872 – ss.61, 63, 65(a) 
– Interpretation of Statutes. [Paras 25, 26, 36, 40, 44]
Stamp Act, 1899 – s.35 – Evidence Act, 1872 – ss.61, 63, 65 – 
Secondary evidence in proof of its contents forbidden – Plaintiﬀ  and 
Defendant entered into an agreement to sell – Defendant denied the 
existence of the agreement – Plaintiﬀ  ﬁ led suit for speciﬁ c performance 
of contract, moved an application to ﬁ le a copy of the agreement to 
sell, among other documents, as secondary evidence – Plaintiﬀ  claimed 
that after executing the document, Defendant kept the original copy, 
and a photocopy of the same was given to Plaintiﬀ  – However, as per 
the averments made in the application, the Defendant had stated in an 
aﬃ  davit that the documents were not with her but with her counsel – 
Trial Court and the High Court relied on Jupadi Kesava Rao to hold
295
that the Plaintiﬀ s cannot lead secondary evidence as the document 
sought to be produced needed to be duly stamped:
Held: s.35 of the Stamp Act forbids the letting of secondary evidence in 
proof of its contents – The section excludes both the original instrument and 
secondary evidence of its contents if it needs to be stamped or suﬃ  ciently 
stamped – This bar as to the admissibility of documents is absolute – Where 
a document cannot be received in evidence on the ground that it is not 
duly stamped, the secondary evidence thereof is equally inadmissible in 
evidence – Jupadi Kesava Rao is distinguishable on facts as the document 
which the Court was concerned with therein was one which was chargeable 
with duty, but in the present case, such is not the case as the document to 
be produced is not one which was chargeable with duty at the time of its 
execution i.e., 04.02.1988 – This being a material diﬀ erence, the principle 
of law held in this case, correct as it may be, shall not apply to the instant 
case. [Paras 36, 40]
Stamp Act, 1899 – ss.35, 2(6):
Held: s.35 prohibits admission in evidence of instruments that are 
chargeable with duty unless they are “duly stamped – The word ‘chargeable,’ 
as deﬁ ned u/s.2(6), means chargeable under the Act in force at the date of 
the execution of the instrument – The crucial date which determines the 
law in force is the date of execution of the instrument, and the stamp duty 
is to be charged with reference to the date
of execution – For stamp duty, 
the relevant date is the date of execution and not the date of adjudication 
or the date of presentation and registration of the document. [Paras 9, 11]
Interpretation of Statutes – Role of a clariﬁ cation/explanation 
to a statute and how the same is identiﬁ ed and distinguished from a 
substantive amendment – Discussed.
Stamp/Stamp Duty – Question as to whether the document is liable 
to stamp duty and penalty, to be decided at the threshold:
Held: It is a settled position of law that where the question is whether 
the document is liable to stamp duty and penalty, it has to be decided at 
the threshold even before marking a document – In the present case, the 
document in question was not liable to stamp duty – Deeds and Documents. 
[Para 41]
VIJAY v. UNION OF INDIA & ORS.
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SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Evidence Act, 1872 – ss.61, 63, 65 – Principles relevant for 
examining the admissibility of secondary evidence, deduced. [Para 33]
Words and Phrases – Primary and Secondary Evidence – Discussed 
– Evidence Act, 1872 – ss.61, 63, 65. [Para 31]
LIST OF CITATIONS AND OTHER REFERENCES
CIT v. Vatika Township (P) Ltd. [2014] 12 SCR 1037 : (2015) 1 SCC 
1; Cement Corpn. of India Ltd. v. Purya (2004) 8 SCC 270 – followed.
Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao [1971] 3 SCR 
590 : (1971) 1 SCC 545  – distinguished.
Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi, 
[2007] 2 SCR 289 : (2007) 9 SCC 665; Govind Das v. ITO [1976] 3 SCR 
44 : (1976) 1 SCC 906; Neeraj Dutta v. State (NCT of Delhi) (2023) 4 SCC 
731; Yashoda v. K. Shobha Rani [2007] 5 SCR 367 : (2007) 5 SCC 730; 
M. Chandra v. M. Thangamuthu [2010] 11 SCR 38 : (2010) 9 SCC 712; 
Surendra Krishna Roy v. Muhammad Syed Ali Matwali Mirza 1935 SCC 
OnLine PC 56; H. Siddiqui v. A. Ramalingam [2011] 5 SCR 587 : (2011) 
4 SCC 240 – relied on.
Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana [2011] 11 SCR 
848 : (2012) 1 SCC 656; G.T. Girish v. Y. Subba Raju [2022] 12 SCC 321 : 
(2022) 12 SCC 321; Ghanshyam Sarda v. J.K. Jute Mills Co. Ltd (2017) 1 
SCC 599; Munishamappa v M.Rama Reddy & Ors., Civil Appeal No. 10327 
of 2011; Hariom Agrawal v. Prakash Chand Malviya [2007] 10 SCR 772 
: (2007) 8SCC 514  – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4910 of 2023.
From the Judgment and Order dated 30.11.2009 of the High Court of 
M.P. Principal Seat at Jabalpur in WP No.741 of 2004.
Appearances:
Dr. Menaka Guruswamy, Sr. Adv., Gautam Awasthi, Utkarsh Pratap, 
Lavkesh Bhambhani, Harshwardhan Thakur, Advs. for the Appellant.
297
Akshay Amritanshu, Pranay Ranjan, Arkaj Kumar, Ms. Khushboo 
Kapur, Pratyush Srivastava, Arvind Kumar Sharma, Sunny Choudhary, Ms. 
Archana Sharma, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL J.
1. The issues that arise for consideration of this Court in the present 
appeal are:
1.1 Whether the bar of admissibility created by Section 35 of the 
Indian Stamp Act 18991 applies to the agreement(s) to sell dated 
04.02.1988 executed by the parties?
1.2 Can a copy of a document be adduced as secondary evidence 
when the original instrument is not in possession of the party?
1.3 Whether, in the facts of the present case, would the decision of 
this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha 
Rao2 be binding as held by both the Courts below?
FACTUAL MATRIX
2. Plaintiff and Defendant entered into an agreement to sell on 
04.02.1998, and pursuant to that, Plaintiﬀ  was allegedly put in possession 
by Defendant. When Defendant denied the existence of such an agreement, 
Plaintiﬀ  ﬁ led a suit for speciﬁ c performance of contract. In the said suit, 
Plaintiﬀ  moved an application to ﬁ le a copy of the agreement to sell,among 
other documents, as secondary evidence. 
3. Initially, the said application was allowed by the 4th Additional 
District Judge vide order dated 17.07.2001. But when Defendant sought 
review of this order, the Court vide its order dated 16.12.2003 reviewed 
it and held that secondary evidence of an agreement
to sell could not be 
allowed as it was not executed on a proper stamp, thus barred under section 
1 
Hereinafter referred to as ‘Stamp Act’
2 
(1971) 1 SCC 545 (2-Judge Bench)
VIJAY v. UNION OF INDIA & ORS.
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SUPREME COURT REPORTS 
[2023] 15 S.C.R.
35 of the Stamp Act. While holding so, it relied on the decision of this Court 
in Jupadi Kesava Rao (supra).
4. Subsequently, the Plaintiﬀ  ﬁ led a writ petition before the High Court 
of Madhya Pradesh challenging the review order and the constitutional 
validity of Section 35 of the Stamp Act. The High Court, vide the impugned 
order dated 30.11.2009 in W.P. No. 741/2004, upheld the validity of the said 
section and the order of the Review Court.
5. The present appeal is preferred against this order of the High Court.
6. Learned Senior Counsel Dr. Menaka Guruswamy, for the Appellant-
Plaintiﬀ , submits that the prohibition of Section 35 of the Stamp Act is 
not applicable as there was no requirement for either party to have paid 
stamp duty at the time of execution (before the 1989 Amendment) of the 
agreement to sell. Thus, the Plaintiﬀ  ought to have been permitted to lead 
a copy of the agreement to sell as secondary evidence under Section 65 of 
the Evidence Act.
7. Respondent no.2/Defendant, in its counter aﬃ  davit, has stated that a 
copy of an original document that is unstamped or deﬁ ciently stamped can 
neither be impounded nor validated or admitted as secondary evidence. Once 
the original document is inadmissible under the Stamp Act, the photocopy 
or any other copy cannot be allowed as secondary evidence.
ISSUE 1
8. To adjudicate this issue, it is pertinent to reproduce Section 35 of 
the Stamp Act:
“Section 35-
Instruments not duly stamped inadmissible in evidence, 
etc.- No instrument chargeable with duty 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 oﬃ  cer, unless such 
instruments are duly stamped: Provided that-
(a) any such instrument (shall] be admitted in evidenceon payment 
of the duty with which the same is chargeable or, in the case of an 
instrument insuﬃ  ciently stamped, of the amount required to make up 
such duty, together with a penalty of ﬁ ve rupees, or, when ten times
299
the amount of the proper duty or deﬁ cient portion thereof exceeds ﬁ ve 
rupees, of a sum equal to ten times such duty or portion;
××××”
9. It is evident from a bare perusal of the section that it prohibits 
admission in evidence of instruments that are chargeable with duty unless 
they are “duly stamped.” Duly stamped as deﬁ ned under Section 2(11) of 
theStamp Act means that the instrument bears a stamp and that such stamp 
has been aﬃ  xed or used in accordance with law for the time being in force 
in India. 
10. Further, it is required to consider when the document becomes 
chargeable with duty—during its execution or when it is produced before 
the Court. 
11. The word ‘chargeable,’ as deﬁ ned under Section 2(6), means 
chargeable under the Act in force at the date of the execution of the 
instrument. The crucial date which determines the law in force is the date 
of execution of the instrument, and the stamp duty is to be charged with 
reference to the date of execution. For stamp duty, the relevant date is the 
date of execution and not the date of adjudication or the date of presentation 
and registration of the document.
12. Entry 44 of List III of the Constitution of India is Stamp duties other 
than duties or fees collected by means of judicial stamps, but not including 
rates of stamp duty. Under Entry 44 of List III, the power to levy stamp 
duty on all documents is concurrent. But the power to prescribe “the rate” 
of such levy is with the Parliament and
subjected to the same with the State 
Legislature. The State Legislature is competent to levy the stamp duty under 
Entry 44 of List III and prescribe rates of duty under Entry 63 of List II. 
13. However, if the instrument falls under the categories mentioned 
in Entry 91 of List I, the power to prescribe the rate would be only with the 
Parliament, and for all other instruments or documents, such power would 
be with the State legislature under Entry 63 of List II. 
14. Instruments chargeable with duty is deﬁ ned under Section 3of the 
Act, which denotes that every instrument mentioned in the Schedule, subject 
to exceptions or exemptions, shall be chargeable with duty of the amount 
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
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SUPREME COURT REPORTS 
[2023] 15 S.C.R.
which is indicated in that Schedule as the proper duty thereof. From time 
to time, amendments have been carried out in the Stamp Act, and Schedule 
I-A, as applicable to the State of Madhya Pradesh, was inserted.3 This 
Schedule speciﬁ es the stamp duty that must be paid on speciﬁ c instruments. 
Importantly, instruments not mentioned in the Schedule are not subject to 
duty.
15. Article 23 of Schedule 1A of the Stamp Act deals with conveyances. 
The deﬁ nition of “conveyance” is contained in Section 2(10) of the Stamp 
Act which reads as under:
“(10) ‘Conveyance.’—’Conveyance’ includes a conveyance 
on sale and every instrument by which property, whether movable 
or immovable, is transferred inter vivos and which is not otherwise 
speciﬁ cally provided for by Schedule I;”
At the time of execution of an agreement to sell (1988), the conveyance 
was subjected to stamp duty and Article 23 stood as:
“23. Conveyance, not being a transfer charges or exempted under Article 
No.62: Where market of the property which is the subject matter of 
conveyance-
does not exceed Rs. 50
Four percent of such market value 
subject to a minimum of One Rupee
does not exceed Rs. 10,000
Seven percent of such market value
exceed Rs. 10,000
Seven and half percent of such market 
value.
Provided that if the total amount of 
the duty payable is not a multiple of 
ﬁ fty paisa it shall be rounded oﬀ  to the 
nearest rupee half of a rupee or over 
being
counted as one rupee and less than 
half a rupee being disregarded.”
3 
The Central Provinces and Berar Indian Stamp (Amendment) Act, 1939
301
16. Article 23 was substituted vide M.P. Amendment Act No. 19 of 
19894 and stood as:
“Article 23. Conveyance, 
not being a transfer charged 
or exempted under No.62 
irrespective of the market value 
of the property which is the 
subject matter of conveyance
Seven and half percent of such market 
value:
Provided that if the total amount of the 
duty payable is not a multiple of ﬁ fty 
paise, nearest rupee half of a rupee 
or over being counted as one rupee 
and less than half of a rupee being 
disregarded.
Exemptions
×××”
17. Further, an Explanation was inserted into this Article vide M.P. 
Amendment Act No. 22 of 19905, 
“Explanation.-For the purpose of this Article, where in the case 
of agreement to sell immovable property, the possession of any 
immovable property is transferred to the purchaser before execution or 
after execution of such agreement without executing the conveyance 
in respect thereof, then such agreement to sell shall be deemed to be 
a conveyance and stamp duty thereon shall be levied accordingly:
xxx”
18. The sub-issue that the Court is confronting is whether an agreement 
to sell, handing over possession prior to the amendment brought in the 
year 1989 or 1990, is a conveyance so as to be covered under Article 23 
as existing on the date of execution of the agreement(s). On this aspect we 
may only observe that the causal amendment was brought in only in 1990, 
i.e., prior to the transaction in question. And a three-judge Bench of this 
Court in
Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana6 in 
considering the scope of an agreement to sell observed thus:
4 
The Indian Stamp (Madhya Pradesh Amendment) Act, 1989
5 
The Indian Stamp (Madhya Pradesh Second Amendment) Act, 1990
6 
(2012) 1 SCC 656
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
302 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
“18. It is thus clear that a transfer of immovable property by way of 
sale can only be by a deed of conveyance (sale deed). In the absence 
of a deed of conveyance (duly stamped and registered as required 
by law), no right, title, or interest in an immovable property can be 
transferred.
19. Any contract of sale (agreement to sell) which is not a registered 
deed of conveyance (deed of sale) would fall short of the requirements 
of Sections 54 and 55 of the T.P. Act and will not confer any title nor 
transfer any interest in an immovable property (except to the limited 
right granted under Section 53-A of the T.P. Act). According to the 
T.P. Act, an agreement of sale, whether with possession or without 
possession, is not a conveyance. Section 54 of the T.P. Act enacts 
that sale of immovable property can be made only by a registered 
instrument and an agreement of sale does not create any interest or 
charge on its subject-matter.”
 (Emphasis supplied)
19. The decision stand considered in G.T. Girish v. Y. Subba Raju7, 
and relied upon in Ghanshyam Sarda v. J.K. Jute Mills Co. Ltd.8, without 
any change. This principle was recently restated in Munishamappa v 
M.Rama Reddy & Ors.9
20. It be observed that now, in many states, amendments were brought 
in whereby agreements of sale acknowledging delivery of possession are 
charged with the same duty as leviable on conveyance.
21. Now the question arises if we can retrospectively
read the 
Explanation added vide M.P. Act 22 of 1990 so as to apply to an agreement 
to sell executed on 04.02.1988.
22. A Two-Judge bench of this Court10 while culling out the principles 
on the role of a clariﬁ cation/explanation to a statute and how the same is 
identiﬁ ed and distinguished from a substantive amendment, observed that 
7 
(2022) 12 SCC 321
8 
(2017) 1 SCC 599
9 
Civil Appeal No. 10327 Of 2011
10 2023 SCC OnLine SC 640
303
only because a provision is described as a clariﬁ cation or explanation, the 
Court is not bound by the said statement, but must analyze the nature of 
the amendment so as to conclude whether it is, indeed, a clariﬁ catory or 
declaratory provision or whether it is a substantive amendment which is 
intended to change the law and which would apply prospectively.
23. The mere description of a provision as an “Explanation” or 
“clariﬁ cation” does not determine its actual eﬀ ect.On this aspect, this Court 
in Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi11 
observed as follows:
“Even if the statute does contain a statement to the eﬀ ect that the 
amendment is declaratory or clariﬁ catory, that is not the end of the 
matter. The Court will not regard itself as being bound by the said 
statement in the statute itself, but will proceed to analyse the nature of 
the amendment and then conclude whether it is in reality a clariﬁ catory 
or declaratory provision or whether it is an amendment which is 
intended to change the law and which applies to future periods.” 
24. In Govind Das v. ITO12,this Court has observed that:
“11. Now it is a well-settled rule of interpretation hallowed by time 
and sanctiﬁ ed by judicial decisions that, unless the terms of a statute 
expressly so provide or necessarily require it, retrospective operation 
should not be given to a statute so as to take away or impair an 
existing right or create a new obligation or impose a new
liability 
otherwise than as regards matters of procedure. The general rule, 
as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) 
and reiterated in several decisions of this Court as well as English 
courts, is that
“all statutes other than those which are merely declaratory or which 
relate only to matters of procedure or of evidence are prima facie 
prospective”
11 (2007) 9 SCC 665
12 (1976) 1 SCC 906
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
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SUPREME COURT REPORTS 
[2023] 15 S.C.R.
and If the enactment is expressed in language which is fairly capable 
of either interpretation, it ought to be construed as prospective only.”
(Emphasis supplied)
25. A Constitution Bench of this Court in CIT v. Vatika Township 
(P) Ltd.13 reiterated this principle that the amendments that create rights 
and obligations are generally prospective in nature. It is a well-established 
principle of law that clariﬁ cation or Explanation must not have the eﬀ ect 
of imposing an unanticipated duty or depriving a party of an anticipated 
beneﬁ t. 
26. Hence, in our considered view, the Explanation inserted in Article 
23 of Schedule I-A contained in the Act creates a new obligation for the 
party and, therefore, cannot be given retrospective application. Thus, it will 
not aﬀ ect the agreement(s) executed prior to such amendments.
27. The object of the Stamp Act is to collect proper stamp duty 
on an instrument or conveyance on which such stamp duty is payable. 
Section 35 is a provision to cater for the instruments not being properly 
stamped and, as such, not being admissible in evidence. A document not 
duly stamped cannot be admitted for any purposes. To impose the bar of 
admissibility provided under this section, the following twin conditions 
are required to be fulﬁ lled:
(i) 
Instrument must be chargeable with duty;
(ii) It is not duly stamped.
28. If the documents sought to be admitted are not chargeable with 
duty, Section 35
has no application. Thus, in the present case, since the 
document was dated 04.02.1988, the instrument was not chargeable with 
duty. It follows therefrom that when such document(s) are not required to 
be stamped, then no bar could be imposed due to it being not duly stamped. 
ISSUE II& III
29. Plaintiﬀ  claims in the application that after executing the document, 
Defendant kept the original copy, and a photocopy of the same was given 
13 (2015) 1 SCC 1
305
to Plaintiﬀ . However, as per the averments made in the application, the 
Defendant had stated in an aﬃ  davit that the documents were not with her 
but with her counsel. 
30. Before proceeding with the discussion, it is imperative to reproduce 
the relevant provisions of the Evidence Act and discuss the law relating to 
secondary evidence:
“Section 61- Proof of contents of documents- The contents of 
documents may be proved either by primary or by secondary evidence.
Section 63-Secondary evidence.-Secondary evidence means and 
includes-
(1) certiﬁ ed copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which 
in themselves insure the accuracy of the copy, and copies compared 
with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute 
them; (5) oral accounts of the contents of a document given by some 
person who has himself seen it.
Section 65- Cases in which secondary evidence relating to documents 
may be given.-Secondary evidence may be given of the existence, 
condition, or contents of a document in the following cases-
(a) When the original is shown or appears to be in the possession 
or power-
of the person against whom the document is sought to be proved, 
or of any person out of reach of, or not subject to, the process of 
the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in
Section 66, such a person 
does not produce it;
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
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SUPREME COURT REPORTS 
[2023] 15 S.C.R.
(b) when the existence, condition or contents of the original have 
been proved to be admitted in writing by the person against whom it 
is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party 
oﬀ ering evidence of its contents cannot, for any other reason not 
arising from his own default or neglect, produce it in reasonable 
time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of 
Section 74;
(f) when the original is a document of which a certiﬁ ed copy is 
permitted by this Act, or by any other law in force in 91[India], to be 
given in evidence;92
(g) when the originals consist of numerous accounts or other documents 
which cannot conveniently be examined in Court, and the fact to be 
proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the 
document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certiﬁ ed copy of the document, but no other kind 
of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the 
documents by any person who has examined them, and who is skilled 
in the examination of such documents.”
31. Primary and Secondary Evidence stands explained by a 
Constitutional Bench of this Court in Cement Corpn. of India Ltd.
v. 
Purya,14 (5-Judge Bench) as the former being evidence that the law requires 
to be given ﬁ rst, the latter being evidence that may be given in the absence 
of that original evidence when a proper explanation of its absence has been 
14 (2004) 8 SCC 270
307
given. The terms “primary and secondary evidence” apply to the kinds of 
proof that may be given to the contents of a document, irrespective of the 
purpose for which such contents, when proved, may be received.
32. Section 63 of the Evidence Act gives an exhaustive deﬁ nition 
declaring that secondary evidence “means and includes” the ﬁ ve kinds 
of evidence mentioned therein. Section 65 of the Evidence Act allows 
secondary evidence to be given of the existence, condition, or contents of 
documents under the circumstances therein mentioned. It provides for the 
circumstances in which secondary evidence can be used when the original 
document is unavailable or inaccessible. It is imperative to adhere to the 
principles outlined in these sections, including the proper documentation 
and authentication, to successfully produce secondary evidence in legal 
proceedings.
33. After perusing various judgments of this Court, we can deduce the 
following principles relevant for examining the admissibility of secondary 
evidence:
33.1 
Law requires the best evidence to be given ﬁ rst, that is, primary 
evidence.15
33.2 
Section 63 of the Evidence Act provides a list of the kinds of 
documents that can be produced as secondary evidence, which 
is admissible only in the absence of primary evidence.16
33.3 
If the original document is available, it has to be produced and 
proved in the manner prescribed for primary evidence. So long 
as the best evidence is within the possession or
can be produced 
or can be reached, no inferior proof could be given.17
33.4 
A party must endeavor to adduce primary evidence of the 
contents, and only in exceptional cases will secondary evidence 
be admissible. The exceptions are designed to provide relief 
15 Neeraj Dutta v. State (NCT of Delhi) (5-Judge Bench) (2023) 4 SCC 731;Yashoda v. 
K. Shobha Rani (2-Judge Bench)(2007) 5 SCC 730
16 Yashoda (supra)
17 Yashoda (supra)
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
308 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
when a party is genuinely unable to produce the original 
through no fault of that party.18
33.5 
When the non-availability of a document is suﬃ  ciently and 
properly explained, then the secondary evidence can be 
allowed.19
33.6 
Secondary evidence could be given when the party cannot 
produce the original document for any reason not arising from 
his default or neglect.20
33.7 
When the copies are produced in the absence of the original 
document, they become good secondary evidence. Still, there 
must be foundational evidence that the alleged copy is a true 
copy of the original.21
33.8 
Before producing secondary evidence of the contents of 
a document, the non-production of the original must be 
accounted for in a manner that can bring it within one or other 
of the cases provided for in the section.22
33.9 
Mere production and marking of a document as an exhibit by 
the Court cannot be held to be due proof of its contents.23It 
has to be proved in accordance with the law.24
34. A reading of Section 65(a) of the Evidence Act displays the 
following: 
a. 
Secondary evidence can be presented as a substitute when the 
original document/ primary evidence is in the possession of the 
opposing party or held by a third party;
18 M. Chandra v. M. Thangamuthu (2-Judges Bench) (2010) 9 SCC 712
19 Neeraj Dutta (supra)
20 Surendra Krishna Roy v. Muhammad Syed Ali Matwali Mirza 1935 SCC OnLine PC 
56
21 H. Siddiqui v. A. Ramalingam,
(2-Judge Bench) (2011) 4 SCC 240
22 H. Siddiqui v. A. Ramalingam (2-Judges Bench)(2011) 4 SCC 240
23 Neeraj Dutta (supra)
24 H. Siddiqui (supra)
309
b. 
Such a person refuses to produce the document even after due 
notice,
c. 
It must be ensured that the alleged copy is a true copy of the 
original.
35. Applying the constituents of Section 65 (a) of the Evidence Act to 
the present facts, in reference to the averments made, we ﬁ nd that the exact 
status of the documents in question could not be ascertained as one party 
claims that the other has the said documents and the other has allegedly 
stated that it was with her counsel. However, the said documents could 
not be recovered from the said counsel, as per records. In such a situation, 
therefore, the presentation of secondary evidence could be allowed, if other 
requirements are complied with.
36. We may now consider Section 35 of the Stamp Act which forbids the 
letting of secondary evidence in proof of its contents. The section excludes 
both the original instrument and secondary evidence of its contents if it needs 
to be stamped or suﬃ  ciently stamped. This bar as to the admissibility of 
documents is absolute. Where a document cannot be received in evidence 
on the ground that it is not duly stamped, the secondary evidence thereof is 
equally inadmissible in evidence. 
37. In relation to secondary evidence of unstamped/insuﬃ  ciently 
stamped documents, the position has been succinctly explained by this 
Court in Jupudi Kesava Rao (supra) wherein it dealt with an issue, i.e., 
whether reception of secondary evidence of a written agreement to grant 
a lease
is barred by the provisions of Sections 35 and 36 of the Stamp Act 
and answered it in aﬃ  rmative. It observed:
“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.
……
13. The ﬁ rst 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 
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
310 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
such evidence to be let in when the original admittedly chargeable 
with duty was not stamped or insuﬃ  ciently 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 deﬁ ciency 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 fulﬁ l the requirements of the proviso which enjoins upon 
the authority to receive nothing in evidence except the instrument 
itself. Section 25 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 deﬁ ned 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 the inclusion of a 
copy of a document as an instrument for the purpose of the Stamp 
Act.
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 beneﬁ t.”
(Emphasis supplied)
38. This Court, in Hariom Agrawal v.
Prakash Chand Malviya25, 
reiterated the principle laid down in Judupi Kesava Rao (supra) and 
observed that:
“10. It is clear from the decisions of this Court and a plain reading of 
Sections 33, 35 and 2(14) of the Act that an instrument which is not 
duly stamped can be impounded and when the required fee and penalty 
has been paid for such instrument it can be taken in evidence under 
Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with 
any copy of the instrument and party can only be allowed to rely on 
25 (2007) 8 SCC 514
311
the document which is an instrument within the meaning of Section 
2(14). There is no scope for the inclusion of the copy of the document 
for the purposes of the Stamp Act. Law is now no doubt well settled 
that copy of the instrument cannot be validated by impounding and this 
cannot be admitted as secondary evidence under the Stamp Act, 1899.”
39. Thus, if a document that is required to be stamped is not suﬃ  ciently 
stamped, then the position of law is well settled that a copy of such document 
as secondary evidence cannot be adduced. The present facts, however, diﬀ er. 
40. The Trial Court and the High Court have relied on Jupadi Kesava 
Rao (supra) to hold that the Plaintiﬀ s cannot lead secondary evidence as 
the document sought to be produced needed to be duly stamped. However, 
we ﬁ nd that Jupadi Kesava Rao (supra) is distinguishable on facts as the 
document which the Court was concerned with therein was one which was 
chargeable with duty, but in the case at hand, such is not the case, that is, 
the document to be produced is not one which was chargeable with duty at 
the time of its execution i.e., 04.02.1988. This being a material diﬀ erence, 
the principle of law held in this case, correct as it may be, shall not apply 
to the instant case.
41. It is a settled position of law that where the question is whether 
the document is liable to stamp duty and penalty, it has to be decided at the 
threshold even before marking a document. In the present case, in
view of 
the discussions above, the document in question was not liable to stamp duty.
42. Thus, keeping in view the above-stated principle as well as the 
above-discussed case law and facts of the case, we are of the opinion that 
in the instant case, the Plaintiﬀ ’s prayer for leading the secondary evidence 
ought to be allowed in so far as the documents sought to be introduced as 
secondary evidence be taken by the concerned Court and exhibited, with its 
admissibility being decided independently, in accordance with law under 
the Evidence Act.
43. The issues raised in this instant dispute are adjudicated in the 
following terms:
43.1 
The ﬁ rst issue is answered negatively as the documents in 
question were not required to be stamped at the relevant period 
to attract the bar of Section 35 of the Stamp Act.
VIJAY v. UNION OF INDIA & ORS.
[SANJAY KAROL, J.]
312 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
43.2 
The second issue is answered in the aﬃ  rmative. A copy of a 
document can be adduced as secondary evidence if other legal 
requirements are met.
43.3 
As discussed above, the third issue is answered negatively.
44. The appeal is allowed accordingly. Consequently, the order dated 
16.12.2003 passed by the 19th Additional District Judge in Civil Suit No. 
46/A/03 titled as Shri Vijay v. Dr. Mrs. Mrinalini Devi Pour as aﬃ  rmed by 
the High Court vide order dated 30.11.2009 in W.P. No. 741/2004 titled as 
Vijay Choudhary v. Union of India &Ors. are quashed and set aside. The 
order dated 17.07.2001 passed by 4th Additional District Judge is restored.
45. No order as to costs.
Headnotes prepared by:  
Appeal allowed.
Divya Pandey