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the very purported partition deed, the necessity of its
registration under Section 17 of the Indian Registration Act,
1908 can hardly be contested. It could not also be disputed that
the purported partition deed is scribed on a stamp paper of
Rs.100/- denomination only. Incontrovertibly, the stamp-duty
on the deed of partition as envisaged by Article 46 of the
Schedule I of Maharashtra Stamp Act, 1958 has not been paid.
As the purported partition deed was insufficiently stamped, the
bar to its admissibility under Section 34 of the Maharashtra
Stamp Act, 1958 came into play. An instrument which is
insufficiently stamped cannot at all be admitted in evidence,
until the deficit stamp-duty and penalty, if any, is paid.
13. At this juncture, it is necessary to note that there is a
subtle yet significant difference in a document which is
unregistered and the one which is not sufficiently stamped. If
the document is unregistered in view of the proviso contained in
Section 49 of the Indian Registration Act, 1908, the document
may still be received as evidence of any collateral transaction not
required to be effected by a registered instrument. On the
contrary, if a document is not or insufficiently stamped, such
document cannot be admitted in evidence for any purpose. It
implies that till the defect is cured by paying deficit stamp-duty
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and penalty, if any, the document cannot at all be looked into by
the Court.
14. Keeping this distinction in view, the rival submissions
canvassed across the bar deserve to be appreciated. The thrust
of the submissions of Mr. Koregave was that the veracity, legality
and validity of the purported partition deed could not have been
gone into at the stage of the consideration of admissibility of
secondary evidence. Those questions, according to Mr. Koregave,
could be legitimately examined after the parties adduce
evidence. The trial court could not have thus foreclosed the
opportunity to lead evidence.
15. In the case of Nawab Singh (supra) on which reliance was
placed by Mr. Koregave, the trial court had rejected the
permission to lead secondary evidence on the premise that the
copy of the rent note sought to be produced by the appellant
was of doubtful veracity. In that context, the Supreme Court
observed that, the trial court was not justified in forming that
opinion without affording the appellant an opportunity of
adducing secondary evidence. Since the appellant had alleged
that the original rent note was in possession of the respondent,
the case was covered by clause (a) of Section 65 of the Indian
Evidence Act, 1872.
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16. In the case of Ameer Minhaj (supra), a Three-Judge Bench
of the Supreme Court, considered the aspect of admissibility of
unregistered instruments and allegedly insufficiently stamped
Power of Attorney and observed that, the genuineness and
validity and binding nature of the document or the fact that it is
hit by the provisions of the Transfer of Property Act, 1882 or the
Stamp Act, 1899, as the case may be, will have to be adjudicated
at the appropriate stage after the parties adduced oral and the
documentary evidence.
17. The aforesaid decisions, in my considered view, do not
govern the controversy at hand. The core issue that arises for
consideration in this petition is whether a party can be
permitted to adduce secondary evidence of a document, which
is in itself inadmissible on account of statutory bar?
18. On a plain construct, in the facts of the case, the
requirements to adduce secondary evidence can be said to have
been fulfilled. The defendants asserted in the written statement
that there was a partition deed. The plaintiffs were in the
custody of the said partition deed. The plaintiffs were called
upon to produce the said partition deed by giving notice as
envisaged by Section 66 of the Indian Evidence Act and by filing
an application under Order XI Rule 14. The plaintiffs denied the
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custody of the documents. However, the question is of the
admissibility of a copy of the document, which itself is
inadmissible in evidence.
19. Under Section 34 of the Maharashtra Stamp Act, if a
document chargeable with duty is not so stamped, such
document shall not 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, unless such document
is duly stamped. Resultantly, an unstamped or insufficiently
stamped instrument cannot be acted upon until payment of
duty and penalty, if any, thereon. Section 33 of the Maharashtra
Stamp Act, thus, contains provisions for impounding of
insufficiently stamped instrument. However, what can be
impounded is the original instrument and not a copy thereof.
20. In the case of Hariom Agrawal (supra) the Supreme Court
has ruled in no uncertain terms that a plain reading of Sections
33, 35 and 2(14) of the Stamp Act, 1899 indicates 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 the
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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.
21. In the case of Jupudi Desava Rao vs. Pulavarthi Venkata
Subbarao and others6 the Supreme Court was confronted with
the following question:
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 Indian Stamp Act.
And answered it as under:
"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 a
fore-runner in a statute of 1 879. Chapter IV of the
Stamp Act deals with instruments not duly
stamped. ......
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
6 1971(1) Supreme Court Cases 545.
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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 fulfill 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 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 the 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 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 later
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."
(emphasis supplied)
22. The aforesaid pronouncement was followed by the
Supreme Court, in the case of Vijay (supra). On the aspect of
the admissibility of a copy of a document, by way of a secondary
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evidence, when the original itself is not admissible in evidence,
the Supreme Court observed as under:
"37. 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
sufficiently 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.
38. In relation to secondary evidence of unstamped/
insufficiently 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 affirmative.
.......
40. Thus, if a document that is required to be stamped is not
sufficiently 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, differ."
(emphasis supplied)
23. The legal position which thus emerges is that a copy of a
document cannot be construed as an instrument for the
purpose of the Stamp Act. Secondary evidence either by way of
oral evidence of the contents of unstamped document or copy of
it covered by Section 63 of the Evidence Act would not fall
within the ambit of the term "instrument" so as to cure the
defect of deficiency in payment of stamp-duty. Allowing such
evidence to be let in, when the original itself is not admissible,
would amount to the document being acted upon by the person
having, by law or consent, authority to receive evidence. Thus,
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if the original document is itself not admissible for want of or
insufficient stamp-duty, secondary evidence thereof is equally
inadmissible.
24. In view of the aforesaid exposition of law, reverting to the
facts of the case, it is necessary to note that, the permission to
adduce secondary evidence of the purported partition deed was
declined on both the grounds i.e. the document is unregistered
as well as insufficiently stamped. Even if the submission of Mr.
Koregave that, the legality and validity of the unregistered
partition deed and its evidentiary value could be considered at
the trial is taken at par, yet, the said submission does not
advance the cause of the defendants as the purported partition
deed is also insufficiently stamped. Resultantly, the purported
partition deed cannot at all be taken into account by the Court.
Since a copy of the purported partition deed cannot be
impounded, the avenue of curing the defect and removing the
taint of invalidity by paying the deficit stamp-duty and penalty
is also not available.
25. The upshot of the aforesaid consideration is that a copy of
the document which is insufficiently stamped cannot be
permitted to be tendered in evidence by way of secondary
evidence. Thus, there is no infirmity in the impugned order.
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26. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
No costs.
[N. J. JAMADAR, J.]
