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TMI Blog1971 (1) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the expiry of the said lease. According to the lessees there were negotiations for a new lease. Respondents I and 2 demanded enhanced rent and an agreement was ultimately arrived at on January 6, 1957 between the appellant and respondent No. 5 for themselves and on behalf of respondents 3 and 4 on the one hand and respondents I and 2 on the other for grant of a new lease for a period of thirty years commencing on January 1, 1957. The rent was fixed at ₹ 5401- per annum payable every two months. There was an option given to the lessors to purchase the rice mill It a price to be fixed by the President of the Rice Mills Association but in case the said option was not exercised, the lessees were entitled to remove the structures of the mill. The lessees were to continue in possession and a deed of lease was to be executed and registered within a short time. The agreement was written on two stamp papers of ₹ 0-12-0 each and signed by the appellant and the 5th respondent on the one hand and respondent No. I on his own behalf and on behalf of respondent No. 2. The document was delivered to the respondent No. I after execution. The appellant s further case is that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to appreciate the case put forward by the plaintiffs in the absence of the agreement to lease oral evidence has been recorded to determine whether the plaintiffs are entitled to specific performance as the full facts must be before the court. Examining the evidence the learned Munsif recorded his finding that : The plaintiffs on whom the burden lies have not proved by evidence of P.Ws., I to 5 and 7 which is interested and developed that the agreement to lease dated 6-1-1957 is true and valid. O.S. No. 92 of 1958 was therefore dismissed. O.S. No. 81 of 1957 was decreed against the appellant and others and they were directed to deliver vacant and peaceful possession after removing the constructions and the mill thereon on or before 9th July 1960. Suit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for ₹ 117-2-10. The Subordinate Judge, Narsapur who heard the appeals from the judgment and decrees of the learned Munsif set them aside. The suit for specific performance of the contract of agreement to lease was decreed and defendants 1 and 2 in that suit were directed to execute and register a lease deed from 1st January, 1957. Ile accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the party seeking to rely upon the execution of the document and the terms thereof offered to pay the penalty in terms of S. 35 of the Stamp Act. According to Mr. Sen s. 35 raised a bar only in cases which were expressly excluded by proviso, (a) to s. 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with the penalty in terms of the said proviso. Mr. Sen further argued that the whole object of s. 35 of the Stamp Act was that the Government revenue due by way of stamp should be protected. But even then s. 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage. It was not reasonable, according to counsel to limit the operation of s. 36 only to cases where the original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infirmity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uire 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. Section 33(1) of this Act provides that : Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except and officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. The relevant portion of s. 35 is as below:-- 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 officer, unless such instrument is duly stamped Provided that- (a) any such instrument not being an instrument chargeable with a duty not exceeding ten paise only, or a bill of exchange or promissory note, shall, subject to all just exception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of S. 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 s. 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped. 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. One of the earliest decisions is the judgment of the Judicial Committee of the Privy Council in Raja of Bobbili v. Imuganti China Sitaramaswami Garu(23 Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be unable to maintain his claim for the estate unless he was permitted to prove the copy of the deed and use it as secondary evidence either on due payment of a penalty in court, or upon its endorsement by the Collector. He based his right to that remedy on the provisions of the Stamp Act of 1879. The Judicial Committee held on the construction of the said Act that the judgment appealed from was correct observing : These clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents which, at the time of their execution, were not stamped at all, or were insufficiently stamped. It is only upon production of the original writ, that the Collector has the power given him or the duty imposed upon him, of assessing and charging tie penalty, a duty which he must, in that case, perform by writing an indorsement upon the writ submitted to him, which then, and not till then, becomes probative in law. Reference was made to, s. 33 of the Act of 1879 which is in pari materia with S. 33 of the Act of 1899. S. 34 of the Act of 1879 was on the same lines as the present S. 35. The Board further held that the effect of granting the remedy which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts plea that the plaintiffs ancestors had sold away the lands. On appeal the District Judge upheld the decision on the ground that the trial court ought not to have received secondary evidence of the mortgage. The High Court dismissed the Second Appeal on the same ground. The question as to whether it was open to. the plaintiff to rely on the oral evidence of the alleged execution of the instrument and the alleged passing of possession of the property under that instrument in order to show that that possession operated to create by prescription only the title of a mortgage in the defendants, was answered in the negative by observing : To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessary connect the possession with the contents of the document relating thereto; and that would be contrary to the express provisions of section 35 of the Stamp Act which lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be acted upon by any such person unless duly stamped. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he had lost the original. On a consideration of the entire evidence the District Judge found that the original deed of gift was insufficiently stamped. This decision was not questioned before the High Court but the appellant claimed that it could not be admissible in evidence and was riot to be considered for any purpose. Referring to the decision of the Judicial Committee and the passage which we have quoted already the Judges of the Rangoon High Court remarked that their Lordships observation (quoted by us earlier) that Those clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents, which , at the time of their execution, were not stamped at all, or were insufficiently stamped. did not intend to go as far as their words suggested. According to the Rangoon Judges: . . . section 35 of the present Act, read with the provisions of the Evidence Act, excludes both the original instrument itself and secondary evidence of its contents. Similarly, under section 36, when either 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 legally admitted in evidence, nevertheless it 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 of 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 a decree on the failure of the defendant 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 mean 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 cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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