| Headnote |
Issue for consideration: Whether the bar of admissibility created by s.35, Stamp Act 1899 applies to the agreement(s) to sell dtd. 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; and whether, in the facts of the present case, would the decision of this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao be binding as held by both the Courts below? Stamp Act, 1899 – s.35 – Applicability – Article 23 of Schedule 1A of the Stamp Act – “conveyance” – Stamp (Madhya Pradesh Amendment) Act, 1989 – Stamp (Madhya Pradesh Second Amendment) Act, 1990 – Explanation added in Article 23 – Agreement to sell handing over possession prior to the amendment brought in the year 1989 or 1990, if a conveyance so as to be covered u/Article 23 as existing on the date of execution of the agreement(s) – Further, the Explanation added vide M.P. Act 22 of 1990, if can be read retrospectively so as to apply to an agreement to sell executed on 04.02.1988:Held: The causal amendment was brought in only in 1990, i.e., prior to the transaction in question – The amendments that create rights and obligations are generally prospective in nature – Clarification or Explanation must not have the effect of imposing an unanticipated duty or depriving a party of an anticipated benefit – The Explanation inserted in Article 23 of Schedule I-A contained in the Act creates a new obligation for the party and, therefore, cannot be given retrospective application – Thus, it will not affect the agreement(s) executed prior to such amendments – Further, to impose the bar of admissibility provided u/s.35, the twin conditions required to be fulfilled are instrument must be chargeable with duty and it is not duly stamped – If the documents sought to be admitted are not chargeable with duty, s.35 has no application – Thus, in the present case, since the document was dtd.04.02.1988, the instrument was not chargeable with duty – Thus, when such document(s) are not required to be stamped, then no bar could be imposed due to it being not duly stamped – Further, in the present case, the exact status of the documents in question could not be ascertained as one party claimed that the other had the said documents and the other party allegedly stated that it was with her counsel – However, as per records, the said documents could not be recovered from the said counsel – In such a situation, therefore, the presentation of secondary evidence could be allowed, if other requirements are complied with – 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 – Also, Jupadi Kesava Rao is distinguishable on facts – Impugned order of the High Court set aside – Order passed by the Additional District Judge allowing the application of the Plaintiff to file a copy of the agreement to sell, as secondary evidence, restored – Constitution of India – Entry 44 of List III – Entry 63 of List II – Evidence Act, 1872 – ss.61, 63, 65(a) – Interpretation of Statutes. [Paras 25, 26, 36, 40, 44]Stamp Act, 1899 – s.35 – Evidence Act, 1872 – ss.61, 63, 65 – Secondary evidence in proof of its contents forbidden – Plaintiff and Defendant entered into an agreement to sell – Defendant denied the existence of the agreement – Plaintiff filed suit for specific performance of contract, moved an application to file a copy of the agreement to sell, among other documents, as secondary evidence – Plaintiff claimed that after executing the document, Defendant kept the original copy, and a photocopy of the same was given to Plaintiff – However, as per the averments made in the application, the Defendant had stated in an affidavit that the documents were not with her but with her counsel – Trial Court and the High Court relied on Jupadi Kesava Rao to hold that the Plaintiffs cannot lead secondary evidence as the document sought to be produced needed to be duly stamped: Held: s.35 of the Stamp Act forbids the letting of secondary evidence in proof of its contents – The section excludes both the original instrument and secondary evidence of its contents if it needs to be stamped or sufficiently stamped – This bar as to the admissibility of documents is absolute – Where a document cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof is equally inadmissible in evidence – Jupadi Kesava Rao is distinguishable on facts as the document which the Court was concerned with therein was one which was chargeable with duty, but in the present case, such is not the case as 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. [Paras 36, 40]Stamp Act, 1899 – ss.35, 2(6): Held: s.35 prohibits admission in evidence of instruments that are chargeable with duty unless they are “duly stamped – The word ‘chargeable,’ as defined u/s.2(6), means chargeable under the Act in force at the date of the execution of the instrument – The crucial date which determines the law in force is the date of execution of the instrument, and the stamp duty is to be charged with reference to the date of execution – For stamp duty, the relevant date is the date of execution and not the date of adjudication or the date of presentation and registration of the document. [Paras 9, 11]Interpretation of Statutes – Role of a clarification/explanation to a statute and how the same is identified and distinguished from a substantive amendment – Discussed. Stamp/Stamp Duty – Question as to whether the document is liable to stamp duty and penalty, to be decided at the threshold:Held: 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, the document in question was not liable to stamp duty – Deeds and Documents. [Para 41]Evidence Act, 1872 – ss.61, 63, 65 – Principles relevant for examining the admissibility of secondary evidence, deduced. [Para 33] Words and Phrases – Primary and Secondary Evidence – Discussed – Evidence Act, 1872 – ss.61, 63, 65. [Para 31] |
