If the instrument was not needed to be stamped under Section 35, there could be no bar imposed for improper stamping
Fact and issue of the case
The issues that arise for consideration of this Court in the present appeal are:
Whether the bar of admissibility created by Section 35 of the Indian Stamp Act 18991 applies to the agreement(s) to sell dated 04.02.1988 executed by the parties?
Can a copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party?
Plaintiff and Defendant entered into an agreement to sell on 04.02.1998, and pursuant to that, Plaintiff was allegedly put in possession by Defendant. 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.
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).
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.
Learned Senior Counsel Dr. Menaka Guruswamy, for the Appellant-Plaintiff, submits that the prohibition of Section 35 of the Stamp Act is not applicable as there was no requirement for either party to have paid stamp duty at the time of execution (before the 1989 Amendment) of the agreement to sell. Thus, the Plaintiff ought to have been permitted to lead a copy of the agreement to sell as secondary evidence under Section 65 of the Evidence Act.
Respondent no.2/Defendant, in its counter affidavit, has stated that a copy of an original document that is unstamped or deficiently stamped can neither be impounded nor validated or admitted as secondary evidence. Once the original document is inadmissible under the Stamp Act, the photocopy or any other copy cannot be allowed as secondary evidence.
Observation of the court
The Trial Court and the High Court have relied on Jupadi Kesava Rao (supra) to hold that the Plaintiffs cannot lead secondary evidence as the document sought to be produced needed to be duly stamped. However, we find that Jupadi Kesava 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.
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.
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 Evidence Act.
The issues raised in this instant dispute are adjudicated in the following terms:
The first issue is answered negatively as the documents in question were not required to be stamped at the relevant period to attract the bar of Section 35 of the Stamp Act.
The second issue is answered in the affirmative. A copy of a document can be adduced as secondary evidence if other legal requirements are met.
As discussed above, the third issue is answered negatively.
The appeal is allowed accordingly. Consequently, the order dated 16.12.2003 passed by the 19th Additional District Judge in Civil Suit No. 46/A/03 titled as Shri Vijay v. Dr. Mrs. Mrinalini Devi Pour as affirmed by the High Court vide order dated 30.11.2009 in W.P. No. 741/2004 titled as Vijay Choudhary v. Union of India & Ors. are quashed and set aside. The order dated 17.07.2001 passed by 4th Additional District Judge is restored.
No order as to costs.
Read the full order from here
Vijay-Vs-Union-of-India-Ors.-Supreme-Court-of-India-29.11.20232
You must be logged in to post a comment.