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TMI Blog2023 (11) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Can a copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party? - 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? - HELD THAT:- 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. In relation to secondary evidence of unstamped/insufficiently stamped documents, the position has been succinctly explained by this Court in Jupudi Kesava Rao wherein it dealt with an issue, i.e., whether reception of seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When Defendant denied the existence of such an agreement, Plaintiff filed a suit for specific performance of contract. In the said suit, Plaintiff moved an application to file 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 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 filed 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defined Under Section 3 of the Act, which denotes that every instrument mentioned in the Schedule, subject to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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 Haryana (2012) 1 SCC 656 in considering the scope of an agreement to sell observed thus: 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 clarificatory 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. ITO (1976) 1 SCC 906, this Court has observed that: 11. Now it is a well-settled Rule of interpretation hallowed by time and sanctified 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 and If the enactment is expressed in language which is fairly capable of either interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter 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; (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 offering evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the admissibility of secondary evidence: 33.1 Law requires the best evidence to be given first, that is, primary evidence. Neeraj Dutta v. State (NCT of Delhi) (5-Judge Bench) 2022:INSC:1280 : (2023) 4 SCC 731; Yashoda v. K. Shobha Rani (2-Judge Bench) (2007) 5 SCC 730 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.8 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. Yashoda (supra) 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 when a party is genuinely unable to produce the original through no fault of that party. M. Chandra v. M. Thangamuthu (2-Judges Bench) (2010) 9 SCC 712 33.5 When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed. Neeraj Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va 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 difference, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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