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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR, J.
Kanchan Bajrang Powar and Ors. – Petitioners
Versus
Aappa Dagdu Powar (deceased) through LRs.- Bebi Appa Powar and Ors. – Respondents
Writ Petition No. 1194 Of 2022
Decided On : 12-03-2025
(A) Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order XI Rule 14 - Maharashtra Stamp Act, 1958 - Section 34 - Admissibility of secondary evidence - The trial court rejected the application for secondary evidence of a partition deed on grounds of inadmissibility due to lack of registration and insufficient stamp duty. The court emphasized that a copy of an insufficiently stamped document cannot be admitted in evidence. (Paras 3.6, 19, 24)
(B) Evidence Act, 1872 - Section 65 - The court ruled that the legality and validity of a document can only be examined after evidence is adduced, but if the original document is inadmissible, secondary evidence cannot be permitted. (Paras 6, 24)
Facts of the case:
The petitioners challenged the rejection of their application to adduce secondary evidence of a partition deed, asserting that the original was in the plaintiffs' custody. The trial court found the deed inadmissible due to being unregistered and insufficiently stamped. (Paras 3.1, 3.6)
Findings of Court:
The court upheld the trial court's decision, stating that a copy of an insufficiently stamped document cannot be admitted as secondary evidence. (Paras 25)
Issues: The main issues were whether the trial court erred in rejecting the application for secondary evidence based on the inadmissibility of the original document. (Paras 17, 24)
Ratio Decidendi: The court held that if the original document is inadmissible due to statutory bar, secondary evidence of that document cannot be permitted. (Paras 24)
Result: The petition stands dismissed.
Based on the provided legal document, the stamp duty applies to the entire partition deed, not just the share of individual parties. The document explicitly states that the partition deed is an instrument that effects the partition of properties by the force of the instrument itself, creating rights and obligations in respect of the properties involved (!) . Since the deed operates to effect a division of the entire property, the stamp duty prescribed under applicable law would generally be payable on the entire instrument, covering all parties' shares, rather than on each party's share separately.
Additionally, the document emphasizes that the partition deed is an instrument that creates or extinguishes rights in the properties, and such instruments are subject to stamp duty based on the entire transaction or agreement, not merely on individual shares (!) (!) . Therefore, the applicable stamp duty is on the whole partition deed, which encompasses the rights of all parties involved, rather than on each party's individual share.
In conclusion, the stamp duty is applicable to the entire partition deed as a whole, reflecting the total transaction, rather than solely on the share of any particular party.
JUDGMENT :
N.J. JAMADAR, J.
1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India assails the legality, propriety and correctness of the order dated 14th August, 2019 passed by the learned Civil Judge, Kolhapur, whereby an application (Exhibit-25) preferred by the petitioners and defendant Nos.3 and 4 seeking permission to adduce secondary evidence of purported Partition Deed dated 6th January, 1992, came to be rejected.
3. The background facts leading to this petition can be stated in brief as under:
3.1 Respondent Nos.1 to 4 instituted a suit for recovery of possession of the suit premises, which Late Dagdu Powar, the predecessor-in-title of the plaintiffs, had purchased. The plaintiffs asserted that Baburao Powar, the brother of Late Dagdu and the predecessor-in-title of defendant Nos.1 to 4, had no premises to reside. Therefore, Late Dagdu had gratuitously permitted Late Baburao to occupy suit property 1B. Baburao passed away in the year 1998. Bajrang, the son of Baburao and husband of defendant No.1 and father of defendant Nos.2 to 4 passed away in the year 2012. The defendants declined to hand over the possession of the suit property 1B, despite the demand made since the year 2014. Hence, the suit.
3.2 The defendants appeared and contested the suit. It was contended that the suit property was purchased out of the joint family funds and for the joint family of Appa Powar, the father of Dagdu and Baburao. In the year 1992 there was a partition of the joint family property under a Deed of Partition dated 6th January, 1992 between Valubai, the wife of Dagdu, plaintiff No.2, and Bajrang, the predecessor-in-title of the defendants.
3.3 The defendants filed an application to lead secondary evidence of the said deed of partition contending that the original deed of partition was in the custody of the plaintiffs. An application for production of the said original deed of partition was filed under Order XI Rule 14 of the Code of Civil Procedure, 1908 (“the Code”). A notice was also addressed to the plaintiffs to produce the original deed of partition. The plaintiffs have denied the custody of the original deed of partition. Therefore, for a just and effectual adjudication of the dispute between the parties it was necessary to permit the defendants to tender a photostat copy of the said Deed of Partition by way of secondary evidence.
3.4 By an order dated 28th June, 2017, the learned Civil Judge had granted permission to adduce secondary evidence.
3.5 The plaintiff filed an application (Exhibit-29) seeking review of the said order as there was an error apparent on the face of the record in as much as the purported partition deed was unregistered and scribed on an insufficiently stamped paper. Therefore, the partition deed was not admissible in evidence. By an order dated 15th November, 2018, the learned Civil Judge allowed the said application for review and the application seeking permission to lead the secondary evidence (Exhibit-25) was posted for a fresh consideration.
3.6 By the impugned order, the learned Civil Judge rejected the said application opining that the aspect of the admissibility of the original document was required to be examined before permitting a party to lead its secondary evidence. Since the purported partition deed was not admissible in evidence for being both unregistered and insufficiently stamped, the permission to lead its secondary evidence cannot be granted.
4. Being aggrieved, the defendants have invoked the writ jurisdiction of this Court.
5. I have heard Mr. Koregave, the learned Counsel for the petitioners and Mr. Patil, the learned Counsel for the respondents.
6. Mr. Koregave, the learned Counsel for the petitioners, submitted that the trial court committed a manifest error in law in determining the aspect of legality and validity of the partition deed at the stage of consideration of
A copy of a document that is insufficiently stamped cannot be admitted as secondary evidence, as the original document's inadmissibility extends to its copy.
Suit for declaration – Unregistered document -Secondary Evidence – Admissibility of - Secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to....
Secondary evidence must be of a document which is admissible in evidence.
Secondary evidence of agreements not duly stamped cannot be admitted in court unless the original instrument is produced and corrected as per legal requirements.
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