Section 35 of the Indian Stamp Act bars the admission of secondary evidence of an unstamped or insufficiently stamped document.

GOPAL RAO EKBOTE, C. J.

( 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 ALT 14 and Lachmareddy v. Sham Row, 1966-2 ALT 230 required reconsideration in the light of the Full Bench decision of this Court in Venkataratnam v. Chelamayya, AIR 1967 Andh Pra 257 (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 ALT 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 ALT 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 q

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