The admissibility of secondary evidence of an unstamped and unregistered sale deed is prohibited under Section 35 of the Indian Stamp Act.

GOPAL KRISHNAN NAIR, J.

( 1 ) THIS Second Appeal is directed against the Judgment of the II Additional chief Judge, City Civil Court, Hyderabad who reversed the deree of the munsif Magistrate, Vicarabad, in O. S. No. 17/1 of 1959.

( 2 ) THE plaintiffs, who are respondents 1 to 3 in the Second Appeal, instituted the suit for possession of the suit property with mesne profits. The ist defendant-appellant contested the suit on tht ground that the plaintiffs had conveyed the suit Properties to him under an unstamped and unregistered sale deed of 25th may, 1950, and that he has been in possesstion of the property under it, Defendents 2 to 4 are proforma parties and have nor raised any contest in either of the Courts below. They have chosen to remain absent in this Court also. The trial Court dismissed the suit. It was satisfied that the plantiffs had conveyed the property to the 1st denfendet under un stamped and unregistered sale-deed dated 25th May, 1950. This fact was sougut to be proved by the 1st defendant not by the production of the unstamped and unregistered sale deed but by secondary evidence of its contents. According to him, the unstamped. and unregistered sale deed was lost and, therefore, he sought the leave of Court to adduce secondary evidence of its concerns which the trial Court granted It was on the strengh of this secondary evidence that that trial Court held that the plaintifls had parted with the property in favour of the 1st defendant.

( 3 ) ON appeal by the Plaintifffs, the II Additional Chief Judge, City Civil court, Hyderabad, held thit the secondary evidence ought not to have been received, and that on the basis of it the suit ought not to have been dismissed. This legal aspect of the ruace led to a reversal of the trial Court s decision and a decree tor possession being granted in favour of the plaintiffs In this second appeal the 1st defendant canvasses the correctness of the decision of the lower appellate Court.

( 4 ) I am not satisfied that rue lower appellate Court erred in the view it took it is amply supported by the decision of a Division Bench of the Madras High court in Thaji Beebi v. Tirumalaiappa Piliai. That was a case where the plaintiff sought to redeem certain lands alleged to have been mortgaged under an unstamped instrument. The original document was not produced apparently because it was not available for being produced. Secondary evidence was therefore led to prove the contents ot the document. The Division Bench held that the receiving of such secondary evidence will be to give some effect to the unstamped document by connecting the possession of the defendent with the contents thereof, and was therefore contrary to the provisions of section 35 of the Indian Stamp Act. The same legal position arises in the present also. Here it set up the execution of an unstamped and unregistered sale deed under which in law no title could pass. This apart, the orginal document was not produced in Court, but secondary evidence was adduced to prove its contents, and on the strength of it the Court was invited to dismiss the plaintiffs suit for possession. An unstamped document of sale is not receivable in evide in view of the clear provisions of section 35, Stamp Act, Therefore, it will be deliberately circumventing section 35 of the Stamp Act to seek to adduce seconary evidence of the contents of the unstamped document and try toestablish right and title to property on the foot of such evidence. It was held in Chidambaram chettiar v. Meyyappan Ambalam , that when the original unstamped document is lost, a copy of it cannot be admitted in evidence even on payment of stamp duty and penalty. This decision ot another Division Bench of the Madras High court reinforces the position that the 1st defendant was not entitled to rely upon secondary evidence to prove his right and title to property which was claimed to have been conveyed to him under an unstamped sale deed.

( 5 ) IT follows that the decision of

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