An unstamped instrument cannot be admitted in evidence for any purpose whatsoever, not even for the purpose of comparing the signature in that document with the signature in dispute in another document.

JUDGMENT :

1. This revision is directed against the order of the subordinate Judge Mahbubnagar admitting two documents an unregistered sale deed and an unregistered adoption deed subject to the payment of stamp duty and penalty as required under proviso (a) to Sec. 35 of the Indian Stamp Act.

2. The facts as appear from the order of the Subordinate Judge are these: The 2nd defendant in the suit (petitioner herein) wanted to press into service two documents, an unregistered sale deed and an unregistered adoption deed to prove the signature of the plantiff appearing either as scribe or an executant as the case may be of the said sale deed or adoption deed. That was opposed by the plaintiff on the ground that the two documents are documents chargeable with duty and inasmuch as they are unstamped, they cannot be admitted in evidence for any purpose under section 35 of the Act. The case of the petitioner (2nd defenant) was that he is not seeking to use the documents for the purpose for which they were executed, but for an altogether different purpose to prove the signature of the plaintiff appearing in the will as an attestor and, therefore, the provisions of section 35 are not attracted. The learned Subordinate Judge held that the two documents in question cannot be admitted in evidence for any purpose even if it be for the purpose of relying upon the signatures found in those two documents and directed payment of stamp duty and penalty as levied by him on or before 18th March, 1970 if they should be received in evidence.

3. Mr. Mahipathi Rao appearing for the petitioner relying upon a decision of the Rangoon High Court in J.N. Ezekiel v. Mordecai]1 very strongly contended that the documents are not sought to be used as evidence and that only the signatures appearing in the documents are being relied upon for a collateral matter and therefore the signatures could be received in evidence for purposes of comparison of those signatures with the disputed signature of the plaintiff in the will.

4. Mr. M.S.R. Subrahmanyam appearing as amicus curiae submitted that an unstamped document cannot be received in evidence for any purpose whatsoever, not even for the purpose of comparing the signature in that document with the signature in dispute in another document.

5. The question therefore is whether section 35 bars the admission in evidence of even signatures found in unstamped instruments. We may now notice the relevant provision, section 35, in so far as it is material for our purpose:

“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:

Provided that

(a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, shall subject to all just exceptions, be admitted in evidence on payment of the duty with, which the same is chargeable or, in the case of an instrument insufficiently stamped, the amount required to make up such duty, together with a penalty of five rupees, or, dificient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion”.

6. The underlying object of this section is to ensure that an instrument chargeable with duty is in fact stamped and the only way of enforcing this provision thus saving loss of revenue to the State is to make such an instrument not duly stamped as inadmissible in evidence, so that the document may be rendered useless for the purpose for which it was executed or for any other purpose. Provisio (a) to section 35 enables documents of the kind with which we are now concerned to be received in evidence on payment of deficit duty and penalty. It covers all cases of instruments which require to be stamped, but not stamped at all or under-stamped, subject to