Pulavarthi Venkata Subba Rao And Another v. J. Kesavarao And Others

(1) These three appeals raise common questions of fact and law. They can therefore be conveniently disposed of by a common judgment. O. S. No. 81 of 1957 was filed by pulavarthi venkata subbarao and pulavarthi venka anjanaganaramakrishna anandarao for the recovery of possession of the suit site after removing the construction and mill materials thereon. This suit was instituted on 12th march, 1957. S. A. No. 488 of 1962 arises out of that suit, another o. S. No. 100 of 1957 was filed by the same persons on 5th april, 1957, for recovery of rs. 4,700 as damages for use and occupation of the suit site for a period commencing from 1st january, 1957 to 4th april, 1957 at the rate of rs. 50 per day, in all for 94 days. S. A. No. 516 of 1962 arises out of that suit. The third suit, o. S. No. 92 of 1958 was filed by defendants i and 2 in the abovesaid two suits against the plaintiffs in those two suits. Defendants 3 and 4 who were once partners of the rice mill along with the plaintiff, were also made parties to the suit. That suit was instituted for specific performance of an agreement of lease dated 6th january, 1957. S. A. No. 875 of 1961 arises out of that suit. The trial court gave facts in o. S. No. 92 of 1958. The learned subordinate judge in appeal also made' that suit as the basis for reference to facts and i will also for the purpose of appreciating the contentions raised in all the three appeals refer to the facts as they appear in o. S. No. 92 of 1958. Defendants 1 and 2 are the owners of the suit site admeasuring ac. 1. 57 cents situated in bhimavaram. It was alleged that the site was taken on lease by kanumuri narasimharaju from the guardian of minor defendants i and 2 on their behalf on 21st december, 1941, by means of a registered lease for a period of 15, years. The said k. Narasimharaju founded a mill on the suit site. After working the mill for some time he sold his rights in, the mill to others and finally the plaintiffs and defendants 3 and 4 became the successors - in - title in respect of the lease - hold right of k. Narasimharaju. Defendants 1 and 2 accepted the plaintiffs and defendants 3 and 4 as lessees and treated them as such. The 1st and and defendants however gave notice on 17th july, 1956, that the lease period was expiring by 31st december, 1956. The plaintiffs and defendants 3 and 4 therefore should vacate the premises after the term of the lease was over. It was contended that upon the receipt of this notice and plaintifis met defendants 1 and 2 and requested them to extend the period of lease. The 1st and 2nd defendants demanded enhanced rent. After some negotiations the plaintiffs and defendants 1 and 2 entered into an agreement of lease during the first week of january, 1957. According to that lease, which would be in continuation of the old, one, the defendants 1 and 2 would lease the site to the plaintiffs for 30 years commencing from 1st january, 1957. The plaintiffs agreed not only on their behalf but on behalf of defendants 3 and 4. It was also agreed that after the expiry of the said period if defendants 1 and 2 desired to purchase the said mill it should be sold by the plaintiffs and defendants 3 and 4 to defendants 1 and 2 at the price that may be fixed by the president of the bhimavaram rice millers' association. In case such a purchase was not made, the lessees would remove the superstructure and the building and the materials of the mill and deliver vacant possession of the site to defendants 1 and 2. The rent was fixed at rs. 540 per year the rent being payable every two months. It was also agreed that a lease deed would be executed. A stamped agreement of lease was written and signed by the plaintiffs and the 1st defendant and the lease deed was delivered to the 1st defendant.

(2) The plaintiff, therefore continued in possession in pursuance of that lease and effected improvements investing a huge sum of rs. 30,000. Subsequent to the lease agreement, the 1st plaintiff purchased the shares of the 3rd and 4th defendants in the said mill. Since the plaintiffs were always ready and willing to fulfil their part of the lease agreement, the 1st and 2nd defendants are going back upon their contract in executing a formal lease deed and contrary to this contract on account of some illwill the 1st and 2nd defendants have instituted the two suits for recovery of possession and for damages. Upon these facts relief of specific performance was sought.

(3) In their written statement, defendants 1 and 2 stated that according to the original lease deed dated 21st december, 1941 (exhibit a - 22) the term was for 15 years which was to expire on 3ist december, 1956. The rent fixed was rs. 90 per year. The lease deed also contained a term that if after the expiry of the said term vacant possession was not handed over to the defendants 1 and 2, the plaintiffs would be liable to pay rs. 50 per day as damages. In spite of the notice dated 17th july, 1956, calling upon them to hand over vacant possession of the suit site after the expiry of the term, the plaintifis did not vacate nor did they give any reply. There were certain negotiations between the plaintiffs and the said defendants, but there was no concluded contract or any agreement. They denied the execution of any agreement. They did not accept the contention of the plaintiffs that an agreement of lease was executed and kept with the defendants which was for 30 years with an increased rent containing the terms alleged by the plaintiffs. It was further contended that no specific performance can be decreed in favour of the plaintifts, because there was no proper contract, even assuming that the facts mentioned by the plaintifts are correct. These defendants therefore had to institute one suit for recovery of possession and another for damages at the rate of rs. 50 per day for a certain period.

(4) With the consent of the parties, all the three suits were tried together and evidence was recorded in accordance with the consent of the parties in o. S. No. 92 of 1958.

(5) The trial court in the light of the pleadings framed appropriate issues in the three suits separately. The plaintifts examined several witnesses on their behalf and marked in all 39 documents. The defendants examined 18 witnesses and marked 37 documents. Upon this material, the trial court decreed o. S. No. 81 of 1957 and also granted a decree in favour of the plaintiffs in o. S. No. 100 of 1957 at the rate of re. I per day as damages. Consequently, o. S. No. 92 of 1958, which was the suit for specific performance, was dismissed. It was found by the trial court that secondary evidence in regard to the alleged lease of 6th january, 1957, is not admissible as the agreement to lease was insufficiently stamped. Even on evidence it was found that the evidence of p. Ws. 1 to 5 and 7 is an interested one and on the basis of that evidence, the agreement cannot be said to have been proved. The plaintiff's therefore carried the matter in appeal. Three appeals were filed by them in all the three suits. The learned subordinate judge considering the appeals together reversed the judgment of the trial court and held that the agreement pleaded by the plaintiffs is correct. It was true and valid. He also found that the agreement was written on a stamp paper of rs. 1 - 8 - 0 and that it ought to have been on a stamp paper of rs. 60. He disagreed with the conclusion of the trial court that the oral evidence recorded as secondary evidence for the lease agreement which was not produced is inadmissible. Although he agreed that no secondary evidence is permissible in a case where the original lease is not duly stamped, he considered the evidence on the ground that before such evidence was received by the trial court no objection in, regard to its admissibility was taken by the 1st and 2nd defendants. They, according to the learned judge, were precluded from raising any such objection under section 36 of the indian stamp act. In view of his finding, he dismissed o. S. Nos. 81 and 100 of 1957 and decreed the plaintiff's suit, o. S. No. 92 of 1958. These three appeals are directed against the said judgment of the subordinate judge, given on 10th april, 1961.

(6) The principal contention of the advocate - general, who appears for the appellants, is that the learned subordinate judge has erred in deciding that the oral secondary evidence can be treated as good evidence because no objection was raised before it was received by the appellants. Mr. D. Narararaju, the learned advocate for 1st and 2nd respondents, however contended that the learned subordinate judge was wrong in holding that no secondary evidence is permissible in a case where the agreement to lease is insufficiently stamped. He however conceded that if this argument of his is found to be untenable, then he cannot support the judgment of the lower court deciding that since no objection was raised to the admissibility of oral secondary evidence under section 36 of the stamp act, the appellants are precluded from raising any objection at any subsequent stage of the suit. Mr. Sankara sastry, who appears for the third respondent, however took a definite stand that not only secondary evidence in such a case is permissible but assuming that it is inadmissible, since so objection was raised by the appellants before it was received, they are precluded from raising any objection under section 36 of the stamp act at any subsequent stage of the suit. It thus becomes plain that i have to consider both these points. First i have to see whether secondary evidence in a case where the agreement to lease is insufficiently stamped and is not produced before the court by the defendants who are found to be in possession of the same is permissible, and if the answer to the first question is in the negative then to consider what is that effect of the appellant's omission to take any objection before the admission of the parol secondary evidence. In order to appreciate this contention it becomes necessary to read section 35 of the stamp act. Section 35, after omitting the unnecessary portion, reads as follows :

" no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped."

(7) It is not in dispute that the agreement to lease falls within the definition of an instrument for the purposes of the stamp act. It was also a common ground that the agreement to lease in question required a stamp of rs. 60 and that it was, "as is held by the court below, stamped only with a sum of rs. 1 - 8 - 0. The instrument therefore was insufficiently stamped. According to a plain reading of section 35, therefore, the agreement to lease which was chargeable with duty cannot be admitted in evidence for any purpose by any person having by law authority to receive evidence non it shall be acted upon by any such person. It is also plain that the duty of rejecting an instrument,if it is unstamped, is imposed upon the court. It is true that an instrument not duly stamped is not invalid in law. Such a document is only subject to the disabilities mentioned in section 35, viz. , that the document cannot be admitted in evidence or acted upon by any person authorised to receive evidence.

(8) The section not only prohibits admission in evidence of any such document for any purpose but it also prohibits acting upon such document for any purpose. It is true that in so far as the first limb of the section is concerned it would normally apply to a case where the document is produced before a court - section 33 enjoins that every person having by law the authority to receive evidence before whom any instrument chargeable with duty (but not stamped or insufficiently stamped) is produced shall impound the "same. Likewise the first limb of section 35 also refers to a case where an instrument is produced before such person. That is clear from the plain language of the section itself. Under clause (a) of the proviso to section 35, such a document, which is insufficiently stamped, subject to exceptions mentioned therein can be admitted in evidence on payment of duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty. Unless therefore the document is before the court, no question of its admission in evidence after making good the deficiency and payment of penalty would arise. That also becomes clear from section 36 according to which once an instrument has been admitted in evidence, such admission shall not be called in question at any stage of the same suit. Further strength to this conclusion can be gathered from sections 40 and 42. Section 40 authorises the collectors - to stamp instruments impounded. I have already made a reference to section 33 under which an instrument can be impounded. Section 42 states that when the duty and penalty leviable in respect of any instrument have been paid under section 35, 40 or 41, the person admitting such instrument in evidence or the collector as the case may be shall certify by endorsement thereon that the proper duty and penalty have been levied in respect thereof. According to sub - section (2) of that section, every instrument so endorsed shall thereupon be admissible in evidence and may be registered and acted upon and authenticated as if it had been duly stamped. It is thus clear that for the purpose of the first limb of section 35, the document should be before the person authorised to receive evidence and only in such a case that the original can be admitted in evidence provided deficit stampduty is made up and the penalty is paid and the procedure laid down in the above - said sections is followed. It is only then that the document can be admitted in evidence.

(9) Can the same thing be said with regard to the second limb of section 35 ? normally in cases where the document is produced and it is found that it is either not stamped or insufficiently stamped, then, unless the deficit stamp duty is paid along with the penalty, no such instrument can either be admitted in evidence or acted upon. This position is not disputed. What was however argued by mr. D. Narasaraju, the learned counsel for the respondents, was that section 35 even tor the purpose of second limb requires that the original must be before the court, and if it is not before the court, section 35 will not apply to it at all. His argument was that if the document is not before the court, then no penalty can be levied and no question of the admissibility of the original arises. He further contended that section 35 has nothing to do with the admissibility of secondary evidence. What secondary evidence is admissible and when is governed by the provisions of the indian evidence act. He therefore urged that once the document is not before the court, section 35 becomes inapplicable and secondary evidence, if permissible under section 65 of the indian evidence act, ought to be received and acted upon. I do not think there is any force in this contention. It is not necessary in all cases for the purpose of the second limb of section 35 that the document in original must be before the court. The expressions " acted upon " and " for any purpose " are emphatically clear. They clearly point out that in no case if the document is insufficiently stamped it can be acted upon unless the requirements of section 35 are fulfilled. Such an acting upon the instrument may be when the document is before the court or even when it is not before the court. In either case it cannot be acted upon, whether that instrument is proved by primary evidence by production of the document itself or by secondary evidence such as admissible under section 65 of the evidence act. In the first case, when the document is produced it can be admitted provided the requirements of section 35 are fulfilled. But if the document is not before the court, when it is found that it is insufficiently stamped admission of secondary evidence would practically amount to acting upon an insufficiently stamped document which is quite contrary to the imperative language of section 35.

(10) It is no doubt true that there are some circumstances under which under section 65 of the indian evidence act secondary evidence may be given in regard to the documents. But where the original is not duly stamped, it is now clear that no stamp duty or penalty can be levied upon any kind of secondary evidence. Section 35 requires the levy of penalty and stamp duty only in a case where the original is before the court, that is to say, the stamp duty and penalty are leviable only on the original and not on secondary evidence. When that is not possible, when the original is either destroyed or even suppressed by anyone of the parties, no secondary evidence is possible in regard to such an unstamped or insufficiently stamped document. The reason is that the secondary evidence is only admissible where primary evidence is admissible. Furthermore, the admitting of secondary evidence of a document not duly stamped would be equivalent to " acting on " such documents which is prohibited by section 35. When once it is realised that it is only the original of an instrument which can be admitted in evidence on payment of deficit duty and penalty, then it presents no difficulty in reaching the conclusion that if the original is not before the court and if it is insufficiently stamped, no secondary evidence can be admitted even on payment of deficit duty and penalty. It matters in my judgment very little whether the document is lost because of the negligence of any party or is destroyed by the wrongful act of a party. It is also in my opinion immaterial whether a party objecting to the admissiblity of the parol secondary evidence has himself suppressed or destroyed the document. Section 35 is the heart of the stamp act the primary object of section 35 is to protect the revenue. In view of that provision it becomes the duty of the parties to a document to see that a document is properly stamped before it is executed, and in case they choose to get an unstamped or insufficiently stamped document executed, they do it clearly understanding that there is a risk attendant to it. No person therefore who has been a party to a document, which is either not stamped or is insufficiently stamped, can turn round and ask any person who is competent to receive evidence to act upon such a document if it is lost or destroyed. This view not only gathers support from the principle and language of section 35 but also from various authorities to which i will presently make reference.

(11) In rqja of bobbili v. Inuganti china sitaramasami garu, l. R. (1899) 26 i. A. 262 : i. L. R. (1900) 23 mad. 49 (p. C.). It was distinctly found that

"it is only upon the production of the original writ that the collector has the power given to him, or the duty imposed upon him, of assessing and charging the penalty, a duty which he must, in that case, perform by writingan indorsement upon the writ submitted to him, which then and not till then, becomes probative in law"

.

(12) That was a suit brought by the appellant in order to recover possession from the respondent. His main ground of action was based on the terms of the first grant of 1848. In the course of the proof, the appellant proposed to establish by means of secondary evidence, the terms of the grant of 1848, which is alleged to have been executed in the shape of a formal deed of gift. An unauthenticated copy of the original gift deed was produced. The defendants objected to the admission of this copy on the ground that it is the copy of a document which was insufficiently stamped. The learned judge refused to receive the document tendered as secondary evidence or to allow it to be proved. The high court agreed in holding that the copy should not be admitted on payment of penalty. Their lordships of the privy council agreed with the view taken by the high court. Relying upon this decision, it was argued by mr. D. Narasaraju, the learned counsel for the respondents, that the privy council holds section 35 inapplicable in such a case and it was urged that if it is inapplicable then no question of acting upon any such document by admitting secondary evidence arises. I do not think that is the import of that decision. What that decision says is that section 35, in so far as the realisation of deficit stamp duty and penalty is concerned, is applicable to a case where the original is before the court and it expressly finds that no stamp duty or penalty can be levied on a copy of the document, which is secondary evidence. Tt is only to that extent that section 35 is held to be inapplicable. It does not mean that the decision has permitted admission of secondary evidence even in a case where the original is insufficiently stamped and that section 35 can be ignored by receiving such evidence and acting upon it. That would be not only contrary to section 35 itself but is wholly inconsistent with the view clearly expressed by their lordships of the privy council. That is the way in which this decision has been understood in most of the subsequent cases.

(13) The above said decision of the privy council was followed in state of bihar v. Karam chand and bros. Ltd. , (1962) 2 s. C. J. 17 : a. I. R. 1962 s. C. 110. Relying upon that decision, their lordships observed: " the law is no doubt well - settled that the copy of an instrument cannot be validated. ". In sennandan v. Kollakiran, (1878) i. L. R. 2 mad. 208. A bench held;

" secondary evidence tendered to prove the contents of an instrument which is retained by the opposite party after notice to produce it, can only be admitted in the absence of evidence to show that it was unstamped when last seen."

In that case, secondary evidence was recorded, but the court of first instance rejected the secondary evidence tendered as to the contents of the document on' the ground that it was not stamped and dismissed the suit. But the lower appellate court admitted the secondary evidence and decreed the plaintiff's suit. On a further appeal, the high court agreed with the view of the trial court and allowed the appeal. The same view was expressed in arunachellum chetty v. Oldgappan chetty, (1868) 4 m. H. C. R. 312.

(14) It was ruled ; " secondary evidence cannot be given of a 'ost instrument requiring a stamp which was not stamped. " what happened in kopasan v. Shamu, (1884) i. L. R. 7 mad. 440 was that secondary evidence of the contents of the document which was a mortgage was tendered on payment of penalty. The high court however held that secondary evidence of the contents of the documents could not be admitted. Ranga rau v. Bhavayammi, (1894) i. L. R. 17 mad. 473; (1804) 4. M. L. J. 192. Also holds that " in the case of a lost document no penalty can be levied and secondary evidence admitted, for section 39 of the stamp act of 1879 presupposes that the document on which penalty can be paid is forth coming. " ramesam, j. , in doraisami v. Doraiswami, (1925) 48 m. L. J. 432 : a. I. R. 1925 mad. 753 following raja of bobbili v. Inugartti china sitaramaswami garu,, (1899) 26 i. A. 262 : (1900) i. L. R. 23 mad. 49 (p. G.). Held that '' since the letter of transfer was not forthcoming and it was not admitted being unstamped, no secondary evidence can be given of its contents. " another important case to which a reference must be made is chidambaram v. Meyappan, i. L. R. (1946) mad. 672 : (1946) i m. L. J. 64 : a. I. R. 1946 mad. 298.

(15) In that case, before the trial had commenced, the plaintiff produced an unstamped document purporting to support his claim to certain lands. Later on, a mob invaded the court and set fire to it in which the records of the case were destroyed amongst other things. When the trial commenced, the plaintiff sought to put in a copy of the document and paid the penalty into court. It was held that section 35 of the stamp act relates to the stamping of original document, following the privy council ruling, and it was further held that the copy of the document was not admissible in evidence even on payment of the penalty. The fact that the original document was destroyed in mob's action put the plaintiff in no better position. Referring to rippiner v. , wright, 106 e. R. 440. Their lordships approved of that decision in which it was held that where an agreement on unstamped paper had been destroyed no parol evidence could be given of its contents even if it had been destroyed by the wrongful act of the party who took the objection. In that case, the plaintiff had snatched the document from the hands of the defendant's attorney and then destroyed it. It was contended that the plaintiff, by his act in destroying the paper, had prevented the defendant from getting it stamped, as he might have done, on payment of the penalty and therefore it was not competent for him to take the objection with regard to its admissibility. It was held that the evidence was properly rejected. 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. Thaji beebi v. Tirumalaiappa pillai, (1907) i. L. R. 30 mad. 386: (1907) 17 m. L. J. 308 is another important case in this regard. In that case, the plaintiff had instituted the suit to redeem lands alleged to have been mortgaged under an unstamped instrument in 1841.

(16) The document was not produced. The 1st defendant denied the mortgage and set up a sale in his favour. The plaintiff alleged that the cadjan mortgage deed was in the possession of the 1st defendant who was asked to produce it. The 1st defendant however denied its existence. The plaintiff therefore examined two witnesses to prove the mortgage; no objection was taken by the defendants to the receipt of the secondary evidence. The munsif found the plaint mortgage as well as sale set up by the 1st defendant to be proved and dismissed the suit. On appeal, the district judge upheld the decision on the ground that the lower court ought not to have received secondary evidence of the mortgage and the plaintiff's suit based on a document which was not produced and of which no secondary evidence was admissible, must fail, on a further appeal to the high court, it was held :

" is it then open to the plaintiff to rely on the oral evidence as to the alleged execution of the instrument and the alleged passing of possession of the property under the instrument, in order to show that the possession operated to create by prescription only the title of a mortgagee in the defendants ? this question must be answered in the negative. To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessarily connect the possession with the contents of the document relating thereto ; and that would be contrary to the express provision of section 35 of the stamp act which lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be ' acted upon ' by any such person unless duly stamped."

(17) It will thus be seen that the madras high court has been taking a consistent view in this behalf. It is not necessary to multiply the decisions. It is enough to state that the other high courts also have held on the same lines. I would refer to a few decisions. Kallu v. Halki, (1896) i. L. R. 18 all. 295. Holds that where a court has occasion to admit a previously unstamped document in evidence upon payment of a penalty under section 34 and the following sections of act i of 1879, it is necessary that the original instrument should be before the court. The mortgage deed was not produced in that case. The subordinate judge discovered from the evidence of the witnesses that it was " written on a plain paper. The subordinate judge levied penalty and proper duty deriving its contents from the evidence of witnesses. It is upon these facts that it was found:

" the terms of these sections make it clear that a court cannot admit in evidence an instrument not duly stamped upon levy of a penalty under section 34, unless the instrument is actually produced before it, and that the action of the subordinate judge was not warranted by law. The original instrument not having been admissible, as not being duly stamped, i hold that secondary evidence was not admissible to prove its contents."

In chenbasappa v. Lakshman ramchandra, (1894) i. L. R. 18 bom. 369 a suit was brought upon two hundis, which were inadmissible in evidence for want of impressed stamps. The judge had allowed the claim holding that the defendants' admissions in their written statement rendered it unnecessary to put the hundis in evidence. The high court reversing the decree , however, held that the

" hundi is ' acted upon ' where a decree is passed on it, whether proved or admitted, and that the court cannot give effect to it in either case."

bhide, j. , in ladha ram v hari chand, a. I. R. 1938 lah. 90. Rejecting the contention of the learned counsel for the respondents that no objection as to the admissibility of the secondary evidence was taken when evidence was recorded and hence the objection as to the admissibility cannot be entertained, held that as the original entry was not duly stamped, secondary evidence of the contents of the entry seems to be wholly inadmissible. It was observed that the original was not forthcoming and no question of curing the defect by payment of penalty arose and consequently the fact that object tion was not taken when mohri mal was examined, was immaterial. Only one case which sounds a different note, was noticed, haran chunder bhooree v russick chunder neogy, (1873) 20 w. R. (southerland) 63. In view of the above said rulings, i do not think it is good law.

(18) It will thus be plain that the oral evidence which was received by the trial court was not admissible at all. 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 parol secondary evidence was admissible. The entire oral evidence adduced by the plaintiffs in support of the agreement to lease therefore will have to be removed from consideration as it is inadmissible. The lower appellate court therefore was wrong in acting upon that evidence and holding that the agreement to lease was established and consequently decreeing the plaintiff's suit. It practically amounts to acting upon the agreement which is quite contrary to the mandatory provisions of section 35 of the stamp act. I turn then to the second question that since defendants 1 and 2 had not raised any objection before the oral secondary evidence was received, they are precluded from raising any objection under section 36 of the stamp act at a subsequent stage of the suit. Section 36 reads as follows :

" where an instrument has been admitted in evidence such admission shall not, except as provided in lection 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."

a reading of that section would indicate that in order that this section may apply, the instrument must have been admitted in evidence. ' admitted in evidence means that the document must have been ' let in ' as part of the evidence. If the document is not at all produced, no question of its admission in evidence arises.

(19) What was admitted in this case is not the instrument but secondary evidence to make out the existence of the instrument together with its contents. Section 36, on its plain language, is not applicable to such a situation. The question is not whether the instrument, which is admitted in evidence without any objection, can be questioned subsequently on the ground that it is insufficiently stamped. But the question is whether secondary evidence in such a case is at all admissible and it is obvious that section 36 does not concern itself with this question at all. If what is prohibited by section 35 is permitted to be used under the guise of section 36, it will not be in consonance with the principle underlying section 35. It is no doubt true that section 36 is an exception to section 35 in so far as the first limb of section 35 is concerned and in some respects even in so far as second limb is also concerned. But if the original document is not before the court and if it is found that it was insufficiently stamped, and when no deficit duty or penalty can be realised, admission of any oral secondary evidence merely on the ground that no objection was raised would practically amount to acting upon such a document, which is precluded by section 35. Section 36 therefore applies to a case where an instrument is actually produced and is admitted in evidence and not to a case where secondary evidence of an insufficiently stamped document is given without any objection. Distinction must be made between the admissibility of a document and the mode of proving an instrument. It must be remembered that consent or want of objection to the reception of evidence which is irrelevant or inadmissible cannot make the evidence relevant or admissible, but consent or want of objection to the wrong manner in which relevant evidence was brought on record disentitles parties from objecting to such evidence subsequently. It is i think firmly settled that admissibility of document or evidence can be challenged though admitted without objection when the question is not a mere question of mode of proof.

(20) I am fortified in this view by the following decisions. In jhanda. Singh v. Harnam singh, a. I. R. 1926 lah. 415 the secondary evidence consisted of a document. It was admitted in evidence as no objection to its admissibility was raised. On objection, the additional judge rejected it by saying that the document had already been admitted in evidence without objection and therefore the objection could not be raised in appeal under section 36 of the stamp act on appeal. It was held :

" where the reception of secondary evidence is in direct contravention of an imperative prohibition of law, the fact that there was no objection cannot convert irrelevant evidence into relevant evidence. The principal acquiescence can only be applied when the secondary evidence has been given of the contents of a document which, if produced, itself could have been admitted under the provisions of the law."

In moolchand v. Lachman ,a. I. R. 1958 raj. 72. The learned judge held :.

" the contents of a document which is required to be executed on a stamp, if not stamped, cannot be proved by secondary evidence. Section 36, stamp act, is applicable only when an unstamped or insufficiently stamped instrument has to be admitted in evidence, but where the instrument itself is not produced, the section has no application to the secondary evidence."

(21) In bhagwan das v. Amardas shamdas, a. I. R, 1938 pesh. 32. Almond, judicial commissioner, observed :

" section 36 applies only in the case of original document. Hence, where the original document has been lost and a copy of the original has been admitted as secondary evidence by the trial court, the appellate court is entitled to consider on appeal whether the secondary evidence has or has not been properly admitted."

the same view is taken in thaji beebi v. Tirumalaiappa pillai,4. (1907) 17 m. L. J. 308 : ( 1907) i. L. R. 30 mad. 386. And arunachellum chetty v. Olagappah chetty, ( 1868) 4 m. H. C. R. 312. I have already referred to these two cases, apart from some others, while discussing the first contention. I have of course enumerated therein the necessary facts and findings in regard to the second contention also. Both these decisions apart from one earlier decision are bench decisiops. I have also made a reference to ladha ram v. Hari chand. A. I. R. 1938 lah. 90.

(22) That was again a case where the evidence was recorded and objection was taken only later on which was upheld. Reliance, however, was placed on the following two decisions satyavathi v. Pallayya, a. I. R. 1937 mad. 431. And meera sahib v. Venkatapathi, (1950) 2 m. L. J. 544 : a. I. R. 1951 mad. 326 which seem to take a contrary view. In satyavati v. Pallayya, a. I. R. 1937 mad. 431. A suit for recovery of some amount was filed on the basis of an award, a copy of which was marked as exhibit g. ' the 1st defendant did not raise any objection that the document was insufficiently stamped and that the suit cannot be based upon exhibit g. When p. W. 1 was being examined, objection. Was taken to its admissibility. The subordinate judge rejected the document on the ground that the original of exhibit g was insufficiently stamped, in supersession of a prior order admitting a copy. The question before the high court was whether the subordinate judge had jurisdiction to upset the order already passed by him. In the circumstances it was held that the court cannot subsequently \reject the document as insufficiently stamped when no objection to its admissibility was earlier taken. It will be clear that the copy of the award was before the court which was marked as exhibit g. The original of it which was on an insufficient stamp was stolen fraudulently by the and defendant. Relying upon norode bawsini v. Sital chandra,a. I. R. 1930 cal: 577. Jagdip singh v. Firangi singh, a. I. R. 1928 pat. 155. And venkateswara iyer v. Ramanatha deekshitar, a. I. R. 1929 mad. 622. Venkataramana rao, j. , held that

" here a document is admitted overruling objection as to its admissibility, it is enough admission within the meaning of Section 36, stamp act, and the court cannot subsequently reject it as insufficiently stamped though wrongly admitted at first."

(23) All these decision on which reliance was placed related to cases where the original documents were placed before the court. There was no case of any document being lost or suppressed and secondary evidence attempted to be given in any one of the three cases relied upon. It is only in passing, and after holding as stated above, that the following observation appears at the end of the judgment:

" section 36 will also apply when secondary evidence of the instrument not duly stamped has been wrongly admitted."

for this proposition, the three cases mentioned above are not at all helpful as they do not relate to that proposition at all. In support of this proposition, no decision was relied upon. In meera sahib v. Venkatapathi, (1950) 2 m. L. J. 544 : a. I. R. 1951 mad. 326 the learned single judge noticing the decision in raja of bobbili v. Inuganti china sitaramaswami garu, l. R. (1899) 26 i. A. 262 : (1900) i. L. R. 33 mad. 49 (p. O.). Agreed that the secondary evidence of the original document, which was tendered in evidence, was not admissible.

(24) He was however of the view that under section 36, if an instrument has been admitted in evidence, it shall not be called in question at any stage of the same suit. In support of that conclusion, the learned judge relied upon satyavati v. Pallqyya,a. I. R. 1937 mad. 431. I have already observed that that decision observed in passing that section 36 will also apply when secondary evidence of an instrument not duly stamped has been wrongly admitted. His lordship relied upon cases which did not relate to this proposition. Moreover, these two decisions are inconsistent with the earlier bench decisions in thaji beebi v. Tirumalaiappa pillai, (1907) 17 m. L. J. 308: (1907) i. L. R. 30 mad. 386. And arunachallum chetty v. Olagappah chetty,. (1868) 4 m. H. C. R. 312. These and some other decisions were not brought to the notice of the learned judges in both the cases. Although bhagwan das v. Amardas shamdas, a. I r. 1938 pesh. 32. Already noticed by me, was brought to his lordship's notice in meera sahib v. Venkatapathi, (1950) 2 m. L. J. 544 : a. I. R. 1951 mad. 326 since the learned judge thought that satyavathi v. Pallayya, a. I. R. 1937 mad. 431. Is a case in point, bhagwan das v. Amardas shamdas, a. I. R. 1938 pesh. 32. , was not followed. The learned single judge, while not following bhagwan das v. Amardas shatndas, a. I. R. 1938 pesh. 32. Made the following observations :

" in view of the several decisions which have taken a view in favour of making the admission of a copy final even if the original instrument was not properly stamped, i am not prepared to accept the view of the peshawar court."

(25) The several decisions to which reference is made in the above said observation are only those which were relied upon in satyavati v, pdllayya,. A. I. R. 1937 mad. 431. I have already pointed out that these decisions have nothing to do with the proposition relating to the admission of secondary evidence. I therefore find it difficult to follow these decisions because not only they are inconsistent with the plain language of section 36, but they do not notice the earlier madras bench decisions. Since they are binding upon me and since i am of the opinion that the view expressed in those bench decisions has been followed by more courts than one, i would prefer to adhere strictly to those decisions. I must then notice two other decisions which similarly take a contrary view. Mauno po htoo v. Ma ma gyi,, a. I. R. 1927 rang. 109. Held that section 35 of the stamp act, read with the provisions of the evidence act, excludes both the original instrument itself and secondary evidence of its contents. Similarly, under section 36, when either the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped. In that case, raja of bobbili v. Inuganti china sitaramaswami garu, i. L. R. (1900) 23 mad. 49 : (1899) l. R 26 i. A. 262 (p. C.). Was sought to be explained. It is difficult to agree with this view obviously because if the oral evidence is permitted to go on record as secondary evidence, it would amount to acting upon a document which is insufficiently stamped and on which no penalty can be levied because the original document is not before the court. Herbert francis v. Mohammed akbar, a. I. R. 1928 pat. 134. Can easily be distinguished on facts of that case. In that case, an unstamped mortgage deed relating to property in british india was executed in england and sent for registration to india. The deed was lost before registration. The mortgagee thereupon brought a suit to recover the money and tried to adduce secondary evidence of the deed treating it as a bond. The question raised before the high court was whether in the circumstances the document can be and was proved by the secondary evidence. The madras decisions noticed by me above earlier were cited before the high court their lordships clearly observed that

"the true answer to this contention is that as the bond was executed in england there was no necessity to stamp the document under section 2 of the act of 1899, and under section 3 the payment of stamp duty is excluded for such a document."

(26) It was therefore held that there was no necessity to stamp the document as a bond ilthough if it had been registered as a mortgage bond it would have attracted duty, at is only in passing that their lordships observed :

" there is a further answer to this question of admissibility, and that is contained in Section 36, stamp act, which provides that an instrument having once been admitted in evidence, such admission shall not, except as provided by section 61 be called in question at any stage of the same suit or proceeding. This document was received by the court below. Section 61 referred to in section 36, deals with cases where the court is exercising its civil or revenue jurisdiction and has no connection with the present case."

With due respect to the learned judges, i do not think i can follow these decisions for the reasons which i have already given. I do not therefore find any difficulty in rejecting the second contention also. I hold that although the objection was raised by defendants 1 and 2 in the trial court at the time of the final arguments and not before the oral evidence was received in regard to the admissibility of oral evidence, even then since section 36 is not attracted to such an objection, the oral evidence cannot be acted upon. It is inadmissible in evidence and it cannot be received for any purpose.

(27) It was then contended by mr. Sankara sastry that the defendants i and 2, who have unreasonably withheld the agreement to lease, cannot be permitted to raise an objection about the inadmissibility of parol secondary evidence. I do not think there is any substance in this contention. Chidambaram v. Meyyappan, i. L. R. (1946) mad. 672 : (1946) 1 m. L. J. 64. : a. I. R. 1946 mad. 298. And rippiner v. Wright,, 106 e. R. 440. Provide a complete answer to this contention. In smith v. Henley, 41 e. R. 680 at 682. It was observed :

"a court of equity cannot, any more than a court of law, receive parol evidence of the contents of a written agreement, which appears never to have been stamped, even where it is proved to have been fraudulently destroyed by the party against whom it is sought to be enforced."

I do not therefore experience any difficulty in rejecting this contention.

(28) It was then contended by mr. Sankara sastry, the learned counsel for the third respondent, that assuming that oral secondary evidence is inadmissible for any purpose under section 35 of the stamp act, it can be used for the purpose of section 53 - a of the transfer of property act. He further contended that it can also be used for at least showing that the relationship of landlord and tenant continued because of that agreement. I do not think this argument can prevail. If this evidence is received for the purpose of section 53 - a or for proving the relationship of landlord and tenants under that agreement it would be quite inconsistent with the provisions of section 35 of the stamp act. The expression " for any purpose " appearing in section 35 is clear. I have already referred to some cases. The general trend of decisions is, that the words " for any purpose " include each and every purpose, and that an instrument not duly stamped is absolutely inadmissible in evidence and cannot be admitted even for a collateral purpose. Any attempt to make a distinction between a collateral matter and a collateral purpose for the purpose of section 35 would not be in consonance with the letter and spirit of section 35. It is true that seme decisions make the distinction and hold that although a document not duly stamped is not admissible in evidence for a collateral purpose, it is admissible to prove a collateral matter. The admission of a document to prove the transaction embodied in it but not for the purpose of enforcing the instrument was said to be an admission of the document for a collateral purpose. But where a document was admitted not for the purpose of proving the transaction for which it was executed, but for proving some other matter, the document, it was said, was admitted to prove a collateral matter. This view has, in my judgment, if i may say with respect, rightly been criticised by the madras high court. Any such view would be directly in conffict with the express provisions of section 35 and would not be correct. In nageswara. Rao v. Narayanamurthi, i. L. R. (1938) mad. 210: (1937) 2 m. L. J. 805 : a. I. R. 1938 mad. 75. Referring to page 122 of edition 3 of sir dinshah mulla's work, where such a distinction was sought to be made, their lordships observed:

" the conclusion arrived at by the author of that work is to the effect that an instrument not duly stamped may be admissible as proof of a collateral matter, but is not admissible as proof for a collateral purpose. By ' collateral matter ' is meant any matter the proof of which does not depend upon proof of the transaction, and by ' collateral purpose ' any matter the proof of which depends upon proof of the transaction. With great respect i consider that this statement conflicts with the wording of the section, which is very precise."

(29) Their lordships therefore held :

" the section itself, in my opinion, provides a complete answer to the petitioner's cause. If an unstamped document cannot be admitted for any purpose, it must mean, if the words are to be given their ordinary and plain meaning, that it cannot be admitted under any circumstances in a civil suit."

(30) This decision therefore provides a complete answer to the argument of the learned advocate for the third respondent. Furthermore, the admission of oral evidence in question is sought for the purpose of proving someting more than a collateral issue. In this view of the matter, it is not necessary to discuss the rulings cited by the learned advocate which were in connection with partition suit and which held that the factum of partition as distinguished from its terms may be proved by evidence e. Part from the deed of any partition itself. In the view which i have taken, it is not necessary to discuss whether a suit for specific performance can or cannot lie under section 27 - a in the circumstances of the case. In that case also, the oral secondary evidence cannot be accepted and if that evidence is excluded, there would be no contract of lease proved to be existing between the plaintiffs on the one hand and the defendants 1 and 2 on the other. When there is no admissible agreement to lease, no question of its specific performance arises because if under section 27 - a the plaintiffs' suit is decreed, it would be contrary to section 35. It is thus clear that whether the plaintiffs are given relief under the active equity or passive equity, that is to say whether under section 27 - a of the specific relief act or under section 53 - a of the - transfer of property act, in either case it would be acting upon an instrument which is not properly stamped, which is contrary to section 35 of the stamp act. The only question which remains to be considered is about damages. No particular point was raised by the appellant to show that the view taken by the trial court in awarding re. 1 per day was wrong. For all the above reasons, i am of the opinion that the subordinate judge came to a wrong conclusion. I have therefore, after consideration and paying i hope due attention to various contentions raised by the learned counsels for the respondents, feel compelled to the conclusion that these appeals must be allowed and the judgment of the subordinate judge in all the three cases set aside and the judgment and decrees of the trial court restored.

(31) The result is that o. S. No. 81 of 1957 and no. 100 of 1957 will be decreed in the same manner as was done by the trial court. O. S. No. 92 of 1958 would be dismissed. The appellants will get their costs throughout. No leave. Appeals allowed ; trial court decrees rtstored.