JUDGMENT
Narayan, J.
1. This is an appeal by the defendants, and it arises out of a suit for specific performance of contract. The case put forward by the plaintiff was that defendant 1 entered into a contract with him on 14-5-1944 for settling 1 Bigha 14 dhurs of bakasht land on the nazrana of Rs. 1500 and at the annual rental of 7 annas. Rs. 450 was paid by the plaintiff as the earnest money, and it was agreed that the patta would be executed and registered on 23-5-1944. It was, however, alleged that in spite of demands the patta was not executed and that the plaintiff later came to know that defendant 2 had taken settlement of 1 katha 7 dhurs of land out of the said 1 bigha 14 dhurs in the name of his minor son, defendant 3, on 2-6-1944. The plaintiff therefore prayed for a decree for specific performance of contract on payment by him of the amount of Rs. 1050 which was the balance of the nazrana money. The defendants contested the suit and contended that there had been no contract with the plaintiff for the settlement of any land and that the document put forward by the plaintiff for proving the alleged contract was a fabricated document.
2. The Courts below have accepted the case of the plaintiff that there was a contract entered into between him and defendant 1 for the execution of a mokarrari patta for a consideration of Rs. 1300. The document, Ex. 1, which is called by the name of Mahadanama has been held to be a genuine document and the Courts below have further found that defendant 2, who subsequently took settlement of plot No. 1388, with an area of 1 katha 7 dhurs, which is one of the plots which, under the contract, had to be settled with the plaintiff, took the settlement with full knowledge of the contract that had been entered into between defendant 1 and the plaintiff.
3. The defendants have consequently come up in second appeal, and Mr. Ganesh Sharma appearing on their behalf has urged the contentions (1) that the Mahadanama propounded by the plaintiff is not a valid document and should have been ignored by the Courts below and (2) that the Courts below should have drawn inference adverse to the plaintiff because the scribe was not examined.
4. I shall dispose of the second point first. The Courts below had to consider the entire evidence, and simply because the scribe had not been examined they could not ignore the evidence of the other witnesses who came forward to prove the execution of the Mahadanama. The judgment of the lower appellate Court appears to be a careful one, and after considering the entire evidence and the circumstances it has come to the conclusion that the Mahadanama is a genuine document and that the plaintiff should have, therefore, a decree for the specific performance of the contract.
5. The first point urged by the learned counsel, however raises a question of law. The deed of agreement is not properly stamped. A stamp of 2 annas only has been affixed on it, which is not the proper stamp for a document of this nature. The document was, however, admitted in evidence without any objection on the part of the defendants. The Counsel for the appellants has relied on Section 35, Stamp Act, according to which no instrument chargeable with duty can be admitted in evidence or can be acted upon unless such instrument is duly stamped. The learned Counsel has also referred to a decision of the Judicial Committee in — ‘Ram Rattan v. Parma Nand’, AIR 1946 P C 51 (A) in which it was pointed out that the words “for any purpose” in Section 35 should be given their natural meaning and effect and would include a collateral purpose. Their Lordships in this case relying on Section 35 held that an unstamped partition deed had been rightly rejected by the trial Judge.
This ruling does not consider Section 36, Stamp Act, and their Lordships in this case had no necessity to consider Section 36, inasmuch as the question before their Lordships was as to whether the documents marked C and D for identification had or had not been rightly rejected by the trial Judge. Their Lordships held after considering the effect of Section 35 that the documents had been rightly excluded from evidence. This is not a case in which the document had been admitted in evidence, and in which the question arose at the appellate stage whether the document was rightly admitted or not. If a question arises at the appellate stage as to the admissibility of an improperly stamped instrument which has been admitted in evidence by the trial Court with or without any objection Section 36 will come into play, and this section stringently lays down that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
The question has by now been considered in various decisions including the decisions of this Court and the Calcutta High Court. Rankin C. J. has pointed out in — ‘Nirode Basini v Sital Chandra’, AIR 1930 Cal 577(1) (B) that Section 36, Stamp Act, makes it reasonably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit and that it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection. These stamp matters, as his Lordship says, are really no concern of the parties, and if the objection was taken at the time when the record was made up by the trial Court, there it might be rejected; if not, the matter stopped there. His Lordship’s observation was referred to with approval by a Division Bench of this Court in — ‘Krishna Kumar v. Mt Jagpati Kuer’, AIR 1937 Pat 73 (C). The point raised by the learned Counsel is, therefore, concluded by authorities.
6. In the result, therefore, I hold that this appeal is without any merit, and I would dismiss it with costs.