Badri Prasad vs Ram Kripal Sahu on 19 May, 2010

                          WP No.5341/2010


        Badri Prasad                    Ram Kripal and others




 19.5.2010.

       Shri Gopal Shriwas, counsel for the petitioner.
       This petition is directed against an order dated 19.03.2010
by the Civil Judge Class-I, Vijayraghogarh, Dist. Katni by which an
application filed by the petitioner under Section         65 of the
Evidence Act, was rejected.
(2)    The facts of the case are that the petitioner sought
permission of the trial Court to produce secondary evidence in
respect of mutual partition deed. Copy of which is available on
record. It is alleged by the petitioner that it is a forged and
fabricated document and the original is in possession of
defendant no.1. As the defendant no.1 had not produced original
partition deed, the petitioner moved an application on 15.5.2009
to permit the petitioner to adduce secondary evidence in respect
of mutual partition deed. The trial Court rejected the prayer.
(3)    From the perusal of this document which is on record, it
appears that this partition deed relates to partition of various
immovable properties including house property, certain lands and
a well. The document on stamp of Rs.10/- is an unregistered
document. The document was not on proper stamp. A question
whether a document which is not          on proper stamp can be
permitted to be proved by secondary evidence came up for
consideration before the Apex Court in Jupudi Kesava Rao vs.
Pulavarthi Venkata Subbarao and others(1971)1 SCC 545, in
which the apex Court considering the question held thus:
        "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,
                  WP No.5341/2010


Badri Prasad                   Ram Kripal and others




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 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
fulfil 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 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.
                                 WP No.5341/2010


              Badri Prasad                    Ram Kripal and others




               15. 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."
      (4)    In view of the settled position by the Apex Court in Jupudi
      Kesava Rao (supra), there is no iota of doubt that photo copy of
      a document which is on insufficient stamp cannot be impounded
      and secondary evidence of such document cannot be permitted.
      In view of the aforesaid,the trial Court has not committed any error
      of jurisdiction in rejecting the application filed under Section 65 of
      the Evidence Act. This petition is without merit and is dismissed at
      admission stage with no order as to costs.
             Certified copy as per Rules.
      .

(Krishn Kumar Lahoti) (G.S.Solanki)
Judge Judge

JLL