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3. Accompanying the plaint, the copies of three documents, entries from the book of accounts dated 17-2-1950, 12-9-1950 and 18-7-1952, were presented to the Court. The inspection of the originals of these three documents was allowed to the defendant's counsel on 3rd September, 1955. It is alleged by the plaintiff that on 24th September, 1955 the book containing these three documents was lost. The plaintiff filed an application on 24th September, 1955 stating the circumstances in which his book of account was lost.

4. When Ramlal (P. W. 1) was being examined on 10th April, 1956, an objection was raised by the defendants in regard to the admissibility of the three copies from the lost book of account on the ground that the original documents were not duly stamped. The trial court determined the duty and penalty payable on these documents on 13th June, 1956 and the plaintiff after paying the duty and penalty proved these copies. When the trial Court reached the stage of judgment it realised that the secondary evidence of documents which were not duly stamped was not admissible an law. Thus, it excluded from consideration the three copies of the 'Khatas' (Exs. 1, 2 and 3) and reached the conclusion that the plaintiff had not succeeded in proving his claim and dismissed the plaintiff's suit. The plaintiff went up in appeal before the learned District Judge, who affirmed the judgment of the trial Court, and the plaintiff has now come up in second appeal to this Court, as already mentioned above.

11. Let us first consider the cases on which the learned counsel for the appellant has relied. In Satyavati's case, AIR 1937 Mad 431, a copy of an award which was originally engrossed on a stamp paper, and which was said to be stolen fraudulently by the defendant, was produced. Objection was raised with regard to its admissibility, but it was overruled. Venkataramana Rao, J., held that Section 36 will also apply even when secondary evidence of an instalment not duly stamped has been wrongly admitted. This view was followed by Satyanarayana Rao, J., in Meera Sahib's case, AIR 1951 Mad 326 and Vishram Arjun's case, (S) AIR 1957 Andh Pra 784. The view taken in Radba Kishan's case of our Court, 1957 Raj LW 603 does not appear to support the learned counsel for the appellant. In this case a document was lost while it was in the custody of the Court. Secondary evidence of its contents was sought to be produced. An objection was raised in regard to its admission in to evidence. Ranawat, J. as he then was, observed that the special feature of this case was that the document in question was lost after its execution had been proved by the plaintiff, and after the plaintiff had closed his evidence. The document had already been admitted into evidence after the payment of penalty and as such the other cases of our High Court (to which we shall persently come to) did not govern this Radha Kishan's case, 1957 Raj LW 603. In Ramchand Gupta's case, AIR 1962 Punj 293, Harbans Singh, J., adopted the view of (S) AIR 1957 Andh Pra 784, AIR 1951 Mad 326 and Mohammad Yusuf v. Abdul Khaliq, AIR 1944 Lah 9. The learned Judge observed that Section 35 of the Stamp Act deal with the instruments which are not duly stamped and therefore inadmissible in evidence but can be admitted into evidence if they are not of certain type on payment of penalty. This section obviously relates to the originals and has no reference to the copy. While dealing with Section 36, however the learned Judge observed that the trend of authorities was that it also applied to copies if admitted. It appears that the number of cases taking a contrary view to the one adopted in AIR 1951 Mad 326 and (S) AIR 1957 Andh Pra 784 were not brought to the notice of the learned Judge. Mohammad Yusuf's case, AIR 1944 Lah 9 does not, as has been noticed by the learned Judge, relate to the interpretation of Section 36 of the Indian Stamp Act but to the general question of admissibility.

"The view of law taken by the lower Court is entirely incorrect. It is settled law that the contents of a document which is required to be executed on a stamp, if not stamped or if insufficiently stamped cannot be proved by secondary evidence.................. It is the original document which, if unstamped or insufficiently stamped, can be validated by payment of stamp duty and penalty under Section 35 of the Stamp Act. If such document is lost, the penalty cannot be levied......