Sheik Meera Sahib vs Akkalaneni Venkatapathi Naidu

Satyanarayana Rao, J.—Defendant 3 is the appellant in this second appeal. The suit out of which this second appeal arises was instituted for

a declaration of the plaintiff''s title to the plaint schedule properties and for possession. To establish his title the plaintiff relied upon an agreement of

sale dated 26-7 1926, EX p. 8, executed by one Subbayya in favour of defendant 1 and a conveyance by defendant 1 dated 19-8-1944, Ex. p.

1, in his favour. Defendant 3 claimed that the purchase by defendant 1 from Subbayya the original owner was really for his benefit and he relied in

support of his title upon Ex. D-1 dated 26-7-1926, i.e., the same date as Ex. p. 8 which, it is alleged, was executed by Subbaya in favour of

defendant 3 who was then a minor represented by defendant 1 as guardian. It has now been found by the Courts below that Ex. D-1 is not

genuine. The only question which remains outstanding for disposal and which is a question of law is whether Ex. p. 8 which is a copy of the original

agreement by Subbayya in favour of defendant 1 is admissible in evidence as the original (which?) it is common ground, was not stamped as

required by law. The copy Ex. p. 8 was admitted by the trial Court without any objection. Objection regarding its admissibility was for the first

time raised in the lower appellate Court. As no objection was raised in the trial Court and as it was admitted in evidence it was held by the lower

appellate Court that u/s 36, Stamp Act, the defendant was not entitled to raise the objection at a later stage in the appeal. In this view the learned

Judge followed the decision of Venkataramana Rao J. in Satyavati v.Pallayya, AIR 1937 Mad. 481 : 169 I. C. 641.

In this second appeal, the correctness of this decision was questioned. In Raja of Bobbili v. Inuganti China Sitaramasami Garu, 23 Mad. 49 : 26

I.A. 262 the Judicial Committee considered Section 34, Stamp Act of 1879 which corresponds to the present Section 85. The document that was

produced as secondary evidence of the original grant in that case was an unauthenticated copy of an original draft of a deed of gift of the plaint

lands. Objection to its admissibility was taken soon after it was produced in Court on the ground that it was a copy of a document which was

insufficiently stamped. The objection was given effect to and the trial Court refused to receive the document tendered as secondary evidence of the

grant. On appeal the High Court agreed with the view of the trial Judge and this was affirmed by the Judicial Committee. It was pointed out by the

Judicial Committee that that section (Section 34) had exclusive reference to the admission as evidence of original documents which were not

stamped at the time of their execution or were insufficiently stamped and as the original was not available and could not be produced, it was

impossible for the Collector to impose the duty leviable upon the instrument. Under those circumstances, the Judicial Committee had no doubt in

upholding the objection regarding the admissibility of secondary evidence of the original document which was tendered in evidence. u/s 36, Stamp

Act, if an instrument has been admitted in evidence such admission, except as provided in Section 61, shall not 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 language of the section is imperative and no

objection at any stage of the suit or proceedings can be raised on the ground of insufficiency of stamp on the original. This view was taken by

Venkataramana Rao J. in Satyavati v. Pallayya, A. I. R. 1937 Mad. 431 : 169 I. C. 641 and the opinion of the learned Judge was based upon an

earlier decision of Madhavan Nair J, in Venkateswara Iyer Vs. Ramanatha Dheekshitar, and of Rankin C. J. in Nirode Basini Mitra Vs. Sital

Chandra Ghatak, . He also points out that the view taken by Madhavan Nair J. was followed by the Allahabad High Court in Noor Ahmed v.

Irshad Ghaus AIR 1933 ALL. 621 : 56 ALL. 131. The Rangoon High Court referred to the decision of the Privy Council in Raja of Bobbili v.

Inuganti China Sitaramaswami Garu, 23 Mad. 49 : 26 I. A. 262 in Mating Po Htoo v. Ma Ma Cyi, 4 Rang. 363 : A. I. R. 1927 Rang, 109 and

also to the language of Section 36 and came to the conclusion that Section 35 excludes the original instrument itself and secondary evidence of its

contents. u/s 86, similarly, whether the original instrument or secondary evidence of its contents has in fact been admitted, that admission cannot be

called in question in the same suit on the ground that it was not properly stamped. The Peshawar Judicial Commissioner''s Court, however, takes a

different view, vide Bhagwan Das v. Amar das, 176 I.C. 312 : A.I.R 1938 Pesh. 32. 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. There is no dissent in our Court and I think the Court below was right in following the decision in Nallajerla Satyavati and

Others Vs. Vijjapu Pallaya, .

This was the only point argued in the second appeal. The second appeal fails and is dismissed with costs. (No leave).