Madhya Pradesh High Court
Sugreeva Prasad Dubey And Ors. vs Sitaram Dubey on 27 November, 2003
Equivalent citations: 2004(1)MPHT488
ORDER K.K. Lahoti, J.
1. The question raised in this petition is whether in secondary evidence, photo copy of the document, original of which is lost and was inadmissible in evidence, can be permitted ?
2. The short facts of the case are that the petitioners are defendants in Civil Suit No. 69-A/1997 pending before Civil Judge Class-I, Sehora. Both the parties are real brothers and dispute is in respect of partition of family property. It is alleged that the father of parties Mooratlal executed a deed in the nature of family settlement on 7-6-1994. The photo-copy of the aforesaid document is filed in the record. It is alleged that the original document was obtained by plaintiff Sitaram from defendant No. 1 Sugreeva Prasad on the pretext that after consultation with his sons, he will settle the matter. Thereafter Sitaram has not returned the document to the defendants. The defendants have also issued a notice to the plaintiff to produce the document, but the plaintiff has not produced the original document. Now he has taken a stand that the original document is not in his possession. In the circumstances, the document of family settlement, photo-copy of which is on record be permitted to be adduced in secondary evidence. The plaintiff contested the aforesaid application on the ground that there was no family settlement between the parties. The plaintiff did not ask for original deed, nor he was given the deed by the defendant Sugreeva Prasad, the document is not in possession of the plaintiff. In fact the document is forged and can not be permitted in evidence by way of secondary evidence. The Trial Court by the impugned order (Annexure P-8), dated 6-7-2003 rejected the application filed by the petitioners, aggrieved by which this petition has been filed by the defendants.
3. Learned Counsel for petitioners submits that the document is admissible in evidence and secondary evidence of the document may be adduced. The aforesaid document may be received in secondary evidence for collateral purpose. If the Trial-Court is of the view that the document is insufficiently stamped, petitioners are ready to pay the deficit stamp duty. This petition may be allowed and the impugned order be quashed.
4. Contrary to the aforesaid, respondent has supported the order passed by the Trial Court and contended that the aforesaid prayer has been rightly rejected by the Trial Court and this petition is without any merit and may be dismissed.
5. To appreciate the rival contention of the parties, it is necessary to look into the following provisions which are relevant for the decision in this case. Section 35 of the Indian Stamp Act, 1899 (hereinafter referred to as 'Act' for short) provides that the instrument not duly stamped is inadmissible in evidence. Section 35 reads as under:--
"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 authorised to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that--
(a) any such instrument not being [a receipt], a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence or payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, 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 times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act;
(f) any such instrument not being a bill of exchange or promissory note shall, subject to all just exceptions, be registered or authenticated on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty."
6. In this case it is not in dispute that the alleged original document of family settlement is on insufficient stamps. The document which is not duly stamped is inadmissible in evidence. Section 37 of the Act provides admission of improperly stamped instruments, which reads as under :--
"37. Admission of improperly stamped instruments.-- The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution."
The aforesaid Section 37 provides that the State Government by making rules provide that an instrument insufficiently stamped may on payment of the duty chargeable be certified to be duly stamped. Section 38 of the Act provides impounding of instruments which is unstamped or improperly stamped. The document may be impounded and may be dealt with provision of Section 37. The State Government may certify on payment of deficit stamp duty the document to be duly stamped, but for all this purpose, it is necessary that the original document should be produced before the authorities. In case the aforesaid document is not produced before the authority, the document can not be rectified or impounded. The aforesaid procedure is not applicable for the photo-copy of document, original of which is lost.
7. Now the question arises whether a document which is inadmissible, photo-copy of document may be received in secondary evidence or not ?
8. From the perusal of Sections 35 and 37 of the Act, it is apparent that the aforesaid provisions are not applicable with the copy of document. A party can only be allowed to rely on a document, which is an instrument for the purpose of Sections 35 and 37 of the Act. Section 35 and 37 does not apply to the copy of documents unstamped or insufficient stamp. The aforesaid document if is a copy of a document, original of which is insufficiently stamped, then in absence of rectification or impounding, said document can not be admitted and secondary evidence of it can not be permitted under Section 65 of the Evidence Act. The Apex Court in the case of Jupudi Kesava v. Pulavarthi Venkata Subbarao and Ors. (AIR 1971 SC1070), considered this question, held :--
"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 can not 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 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 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 Inter stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."
9. In view of aforesaid settled law by the Apex Court, secondary evidence of inadmissible document is not admissible under Sections 63 and 65 of the Evidence Act. The photo-copy of document, which has been filed by the petitioner, original of which was insufficiently stamped does not fall within the purview of Sections 35, 36 and 37 of the Act and can not be received in secondary evidence and the Trial Court has rightly rejected the aforesaid application. In the order passed by the Trial Court. I do not find any jurisdictional error, warranting interference of this Court, This petition is dismissed with no order as to costs.