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E. Venkat Reddy And Another v. E. Yadgir Reddy And Others
Structured Summary of the Opinion
Factual and Procedural Background
The suit was instituted by three brothers against their cousins following a family partition. The plaintiffs' case was that land originally bearing Survey No. 236 was divided into two portions: the defendants obtained one moiety (later recorded as S.No. 236A) and the plaintiffs' father obtained the other moiety (later recorded as S.No. 236/AA). In 1965-66 the defendants were admitted into possession of the land as lessees; they defaulted in payment of rent and denied the plaintiffs' title. The plaintiffs sued for recovery of amounts due under the lease, recovery of arrears of rent, and for possession.
The defendants' pleaded defence was that in a partition in Fasli 1352 one moiety of S.No. 236 was allotted to them and that there was a subsequent exchange whereby they surrendered certain land (S.No. 28) in exchange for a moiety in S.No. 236 allotted to the plaintiffs and other land; the patwari did not make entries reflecting that exchange.
At trial the defendants sought to tender a copy of a document described as the Faisali Salisi dated 10th Maher, 1352 Fasli. The defendants claimed the original had been filed in the Tahsil Office (File No. 55/13/1953) but the Tahsil Office stated the document was "not traceable." The defendants therefore tendered a copy as secondary evidence.
The plaintiffs objected that the original Faisali Salisi was unstamped and unregistered, and therefore a copy offered as secondary evidence was inadmissible. The Trial Court refused to receive the copy, holding that Section 35 of the Indian Stamp Act barred reception of secondary evidence of an unstamped or insufficiently stamped instrument. A revision petition was filed challenging the Trial Court's order; the matter was referred by Parthasarathi J. to a Division Bench and is the subject of the present opinion.
Legal Issues Presented
- Whether secondary evidence (a copy) of an original document that is unstamped or insufficiently stamped is admissible in evidence under Section 35 of the Indian Stamp Act when the original is not traceable.
- Whether the Full Bench decision in Venkataratnam v. Chelamayya (FB) is inconsistent with the established line of authority that disallows secondary evidence of unstamped documents, and if so, whether that decision requires reconsideration or constitutes a contrary precedent.
Arguments of the Parties
Defendants' Position
- The defendants relied on a copy of the Faisali Salisi (dated 10th Maher, 1352 Fasli) as secondary evidence because the original allegedly filed in the Tahsil Office could not be traced and was therefore unavailable.
- The defendants asserted facts of partition/exchange which, if proved by the copy, would defeat the plaintiffs' claim to title.
Plaintiffs' Position
- The plaintiffs objected that the original Faisali Salisi was unstamped and unregistered; consequently, any copy as secondary evidence was inadmissible under Section 35 of the Indian Stamp Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chidambaram Chettiar v. Meyyappan Ambalam (ILR 1946 Mad 672 = AIR 1946 Mad 298) | Held that even if destruction of the original deed was caused by the wrongful act of the party objecting, secondary evidence is not admissible if the original was unstamped or insufficiently stamped; parties are under a duty to ensure proper stamping. | The Court relied on this authority as supporting the proposition that copies of unstamped instruments cannot be received as secondary evidence; it forms part of the settled line of decisions followed by the Court. |
| Lachmareddy v. Sham Row (1966-2 Andh LT 230) | Observed that it would amount to deliberately circumventing Section 35 to adduce secondary evidence of an unstamped document to establish title. | The Court cited this decision to reinforce the rule that secondary evidence of unstamped documents cannot be admitted to establish rights in immovable property. |
| Venkata Subba Rao v. Kesava Rao (1968-1 Andh LT 14) | Held that when an agreement is insufficiently stamped and not before the Court, and no application to cure the defect by payment of deficit/penalty is possible, parol or secondary evidence is inadmissible. | The Court relied on this ruling as part of the consistent authority establishing inadmissibility of secondary evidence where the original is unstamped/insufficiently stamped. |
| Jupudi v. Pulavarathi (Supreme Court) — appeal from the above matter | Confirmed that secondary evidence (oral or copy under Section 63 Evidence Act) of an unstamped document will not satisfy Section 35 of the Stamp Act; Section 35 permits reception of the instrument itself only, and a copy is not an 'instrument' within Section 2(14) for Stamp Act purposes. | The Court treated this Supreme Court confirmation as authoritative, reinforcing that copies cannot be validated; it used it to support the Trial Court's exclusion of the copy. |
| State of Bihar v. Karam Chand & Bros. (Supreme Court) | Held that under Section 35 validation can only operate in respect of the original; a copy of an instrument cannot be validated. Followed earlier precedent (Rajah of Bobbilli v. Inuganti ...). | The Court cited this Supreme Court decision to show settled law that only the original can be validated and copies cannot be admitted where the original is unstamped/insufficiently stamped. |
| Rajah of Bobbilli v. Inuganti China Sitaramasami Garu ((1899) 26 Ind App 262 (PC)) | Earlier authority on which State of Bihar v. Karam Chand & Bros. relied concerning the non-validity of copies for stamp purposes. | The Court noted that higher authority follows this older precedent; it forms part of the chain of authority denying admissibility/validation of copies where the instrument is unstamped. |
| Ramalinga Prasad v. Sivarama Prasad (1968-2 Andh LT 212) | Supreme Court reiterated that there is a bar against admission of any instrument chargeable with duty if it is not duly stamped, and that the document admissible on payment of penalty must be the original and not a copy. | The Court relied on this decision to underline the settled position that only originals may be admitted after payment of penalty; copies remain inadmissible. |
| Rikhabdass v. Ballabhdas (passages extracted by the Full Bench) | Passages were cited by the Full Bench (in Venkataratnam v. Chelamayya) to preclude the argument that a stamped copy of an award can be received in evidence and acted upon under Section 17 of the Stamp Act. | The Court noted that the Full Bench extracted these passages but observed that the Full Bench's conclusion was founded on the particular facts of that case rather than a general rule contrary to the settled line of authorities. |
| Srinivasa Rao v. V. Narasimha Rao | Held that a stamped copy of an award cannot be made a rule of the Court under Section 17 of the Arbitration Act, 1940. | The Court referenced this decision to show consistent authority that stamped copies of awards do not substitute for duly stamped originals for the purposes of admissibility; used to explain the Full Bench's limited scope. |
| Venkataratnam v. Chelamayya (Full Bench) | Full Bench considered an arbitration award situation where the original award was not duly stamped but a copy had stamp and penalty paid; the Full Bench treated the stamp on the copy as intended to serve as payment of duty and penalty under proviso (a) to Section 35 so as to enable the original award (filed in Court) to be admitted in evidence. The Full Bench also found the document did not evidence partition of immovable property but created a charge. | The Court considered this Full Bench decision, concluded it did not conflict with the settled line of authority because (a) the facts were different (original was filed in court so no secondary evidence issue arose), and (b) on those facts the Full Bench admitted the original after treating stamp+penalty on the copy as validating the original under proviso (a). The present Court therefore did not treat the Full Bench as overruling or contradicting the established rule. |
| M. Chelamayya v. M. Venkataratnam (Supreme Court) | The Supreme Court upheld the Full Bench judgment (Venkataratnam v. Chelamayya). | The Court noted that the Supreme Court's upholding of the Full Bench did not render that decision a general authority to admit copies where originals are unstamped; instead the present Court treated the Full Bench as a factspecific decision consistent with the larger body of precedent. |
Court's Reasoning and Analysis
The Court undertook a focused comparison of the authorities bearing on the admissibility of secondary evidence of documents that are unstamped or insufficiently stamped under Section 35 of the Indian Stamp Act. The Court's analysis proceeded in the following steps (as recorded in the opinion):
- Survey of precedent: The Court reviewed a consistent line of decisions of the Madras and Andhra courts and the Supreme Court which hold that if an original document is unstamped or insufficiently stamped, secondary evidence (including copies or oral evidence of its contents) is inadmissible. Authorities cited include Chidambaram Chettiar v. Meyyappan Ambalam, Lachmareddy v. Sham Row, Venkata Subba Rao v. Kesava Rao, Jupudi v. Pulavarathi (confirmed by the Supreme Court), State of Bihar v. Karam Chand & Bros., Ramalinga Prasad v. Sivarama Prasad, and earlier precedents such as Rajah of Bobbilli.
- Principle distilled: From these authorities the Court treated the settled principle as that Section 35 of the Stamp Act bars reception of secondary evidence of an instrument chargeable with duty if the original document is unstamped or insufficiently stamped, and that where payment of duty and penalty can validate a document the validation relates to the original instrument only and not to a copy.
- Consideration of the Full Bench decision (Venkataratnam v. Chelamayya): The Court examined the Full Bench's reasoning and its reliance on Rikhabdass v. Ballabhdas and Srinivasa Rao v. V. Narasimha Rao. The Full Bench had held that, on the facts before it (an original award filed in court but not duly stamped, while a copy bore stamp and penalty), the stamp on the copy could be treated as payment of stamp duty and penalty under proviso (a) to Section 35 so as to enable the original award to be admitted. The present Court observed that the Full Bench's conclusion was founded on the facts of that case (not on a general principle allowing copies to substitute for originals) and that in that case no question of receiving secondary evidence arose because the original award had been filed in court.
- Distinguishing rather than overruling: The Court concluded that the Full Bench decision does not strike a discordant note with the higher authorities because it addressed a materially different factual situation and did not hold that copies of unstamped instruments generally become admissible. The Court noted that the Full Bench was upheld by the Supreme Court in M. Chelamayya v. M. Venkataratnam, but treated that affirmation as applying to the facts of the Full Bench matter.
- Application to present facts: Applying the settled principle to the facts before it — an original Faisali Salisi alleged to be filed in the Tahsil Office but not traceable and alleged to be unstamped/unregistered — the Court held that the Trial Court was right to refuse the copy as secondary evidence under Section 35. The Court concluded that the copy could not be received in evidence where the original was unstamped or insufficiently stamped and unavailable.
Holding and Implications
Holding: The Division Bench dismissed the revision petition and upheld the Trial Court's ruling that a copy of an original instrument which is unstamped or insufficiently stamped cannot be received as secondary evidence under Section 35 of the Indian Stamp Act. The revision was dismissed with costs.
Implications:
- The direct effect is that the Trial Court's exclusion of the copy of the Faisali Salisi stands and the defendants cannot rely on that copy as secondary evidence to establish title or benefit from the contents of the document.
- The Court treated the outcome as in accordance with settled law from the Supreme Court and this Court; it did not purport to set a new precedent or to depart from existing authorities. The Full Bench decision in Venkataratnam v. Chelamayya was distinguished on its facts and not treated as authorising the general admission of copies where originals are unstamped.
- No broader change to the legal rule on admission of secondary evidence of unstamped/insufficiently stamped instruments was announced; the decision enforces the established bar contained in Section 35 of the Indian Stamp Act as applied to the facts before the Court.
Disposition: Revision dismissed.
1. This revision petition has come to us on a reference made by our learned brother, Parthasarathi J. In his order of reference dated 6.7.1971.
2. The facts in brief are, that a suit was instituted by three brothers against their cousins. There was a partition, effected among the members of the family. The plaintiffs' case was that the land bearing S.No. 236 was divided into two portions and the defendants got one moiety and the father of the plaintiffs, the other half. The filed was sub-divided into two survey numbers. The plaintiffs' father got a new S.No. 236/AA while the defendants got S.No. 236A. In 1965-66, the defendants were admitted into possession of the land as lessees. They defaulted in payment of rent. They also denied the title of the plaintiffs. The suit was, therefore, laid for recovery of the amount due under the lease, as also for recovery of arrears of rent and for possession.
3. The defence set up by the defendants was that in the partition which took place in Fasli 1352, one moiety of the land in S.No. 236 was allotted to them. There was subsequently an exchange, as a result of which the defendants surrendered their land in the field bearing S.No. 28 in exchange for a moiety in S.No. 236 allotted to the plaintiffs, as also some other land. The patwari, however, did not carry out the entries according to the exchange.
4. At the trial, the defendants sought to file a copy of the document described as Faisali Salisi dated 10th Maher, 1352 Fasli. It was claimed that the original deed a Faisali Salisi which effected a partition was filed in Tahsil Office in File No. 55/13/1953. The application made by the defendants to Tahsil Office for return of the original document proved ineffective, as the Tahsil Office stated that the document is not traceable. A copy of the Faisali Salisi was therefore tendered as secondary evidence.
5. The plaintiffs took an objection that the original document of Faisali Salisi effecting a partition was unstamped and unregistered. The copy, therefore, being secondary evidence, is inadmissible in evidence.
6. The Trial Court refused to receive the copy for any purpose. It held that Section 35 of the Indian Stamp Act presents a bar for receiving any secondary evidence. It was to challenge this order of the Trial Court, that the present revision petition has been filed.
7. The learned Judge thought that the decisions in Chidambaram Chettiar v. Meyyappan Ambalam, ILR (1946) Mad 672 = (AIR 1946 Mad 298); Venkata Subba Rao v. Kesava Rao, 1968-1 Andh LT 14 and Lachmareddy v. Sham Row, 1966-2 Andh LT 230 required reconsideration in the light of the Full Bench decision of this Court in Venkataratnam v. Chelamayya, (FB). In that view of his, he has referred the matter to a Division Bench. That is how the matter has come before us.
8. In ILR (1946) Mad 672 = (AIR 1946 Mad 298); Leach, C.J. who spoke for the Division Bench, held that where the destruction of the original deed was caused by the wrongful act of the party objecting to the reception of the copy as evidence at the trial, even then secondary evidence is not admissible, if the original was not stamped or was insufficiently stamped. The learned Judge observed:
"It was the duty of the parties to an agreement to take care that, when it was executed, it was properly stamped; and it was one of the risks attendant upon an omission to do this that, if an accident happened to the document before the stamp was affixed, there was no remedy".
9. In (1966) 2 Andh LT 230, Gopalakrishnan Nair, J. Observed that it would be deliberately circumventing Section 35 of the Act to seek to adduce secondary evidence of the contents of unstamped document and try to establish right and title to property on foot of such evidence.
10. In 1968-1 Andh LT 14 (One of us, Gopal Rao Ekbote, J.) it was held as follows:
"When the agreement was insufficiently stamped and was not before the Court and when no question of curing its defect by payment of deficit court-fee and penalty could arise, no parole secondary evidence was admissible".
11. The same judgment was carried in appeal to the Supreme Court in Jupudi v. Pulavarathi, and the said judgment was confirmed. It was held therein as follows:-
"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 requirement of the provision which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a documents 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".
12. The same view was earlier held by the Supreme Court in State of Bihar v. Karam Chand & Bros., . It was stated that under Section 35 of the Stamp Act, there can be validation only of the original, when it is unstamped or insufficiently stamped. It is now well steeled that the copy of an instrument cannot be validated. Their Lordships followed the decision in Rajah of Bobbilli v. Inuganti China Sitaramasami Garu, (1899) 26 Ind App 262 (PC).
13. The same view was reiterated in Ramalinga Prasad v. Sivarama Prasad, 1968-2 Andh LT 212 by the Supreme Court, their Lordships observed (at Page 218):-
"There is therefore a bar against the admission of evidence of any instrument which is chargeable with duty if it has not been duly stamped. It is now settled law that the document which may be admitted in evidence on payment of penalty is the original document and not a copy thereof".
14. Similarly, their Lordships stated (at page 219) as follows:-
"The documents being inadmissible, both on the ground that a certified copy is not admissible unless the original is proved to have been lost or destroyed or is otherwise not available and also on the ground that the original being unstamped, secondary evidence thereof is inadmissible in evidence even on payment of penalty".
15. This being now the settled position of law, let us see whether (FB) (Supra) in any manner strikes a discordant note.
16. The relevant facts of that case were, that the arbitrators gave the original award the pronounced it on 10-11-1955. The arbitrators, however, engrossed a copy of the award on a stamp of Rs. 2865/- on 6-3-1956. It was argued on the basis of these facts that the award was not duly stamped and was not therefore admissible in evidence, in view of Section 35 of the Indian Stamp Act. It was further contended that under Sec. 17 of the Stamp Act, all instruments chargeable with duty by any person executed in India shall be stamped before or at the time of the execution.
17. The Supreme Court decision above referred to in (FB) (supra) referred to Rikhabdass v. Ballabhdas, and extracted two passages from the said judgment and then observed:
"This decision seems to preclude the argument that a stamped copy of an award can be received in evidence and acted upon by the Court under Section 17 of the Act". Their Lordships also referred to the decision in Srinivasa Rao v. V. Narasimha Rao, in which it was held that a stamped copy of an award cannot be made a rule of the Court under Section 17 of the Arbitration Act, 1940. It will thus be seen that even in that case the Full Bench held that a stamped copy of an award which was not stamped properly, cannot be received in evidence and acted upon. That part of the decision therefore is perfectly in accord with the several decisions of the Supreme Court and of this Court referred to above.
18. In that case, however, in view of the facts, the Full Bench held:
"Although we cannot regard the original award to have been duly stamped, we do not find any serious objection in the circumstances of the case to treat the stamp on the copy of the award as intended to serve as payment of stamp duty and penalty under proviso (a) to Section 35 of the Stamp Act, so as to enable the original award to be admitted in evidence".
19. The Full Bench also held that the document in question was not a document evidencing or embodying a partition of immovable property and it only created a charge on immovable properties for certain specified amounts. Thus, it was found that since the stamp duty and penalty payable under proviso (a0 to Section 35 of the Stamp Act was paid, the original award was admissible in evidence.
20. It will immediately be plain that there the original award was filed in the court. No question of any secondary evidence therefore could have arisen. The original award was not stamped. The stamp however with penalty was paid on the copy of the award. The Full Bench held that on the facts and in the circumstances of that case, the original award can be said to have been admitted in evidence under the proviso (a) to Sec. 35 of the Stamp Act, inasmuch as the required stamp was paid along with the penalty.
21. We fail to see how the Full Bench can be said to strike a different note. In fact the question before the Full Bench was entirely different. The argument advanced before the Full Bench, although may have some relevance, was rejected on the facts of that case. That decision, therefore, cannot be said to be an authority for taking a contrary view to what has been held by the above referred decision of this Court as well as the Supreme Court.
22. It is also pertinent to note that the above said Full Bench decision was taken appeal to the Supreme Court. The Supreme Court in M.Chelamayya v. M. Venkataratnam, upheld the said Full Bench judgment.
23. For the reasons which we have given, the trial Court, in our, view, was right in holding that when the original deed was unstamped or insufficiently stamped, no copy of it by way of secondary evidence is admissible in evidence, in view of Section 35 of the Stamp Act. The said decision of the Trial Court is perfectly in accord with what we have stated above. The revision, therefore, is accordingly dismissed with costs.
24. Revision dismissed.
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