Back
2019 Supreme(Ker) 861
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. SOMARAJAN, J.
Thomas George S/o George Kallidukkil – Appellant
Versus
V.V. Georgekutty S/o Varkey – Respondent
R.S.A. No. 1286 of 2008
Decided On : 05-11-2019
Advocate Appeared:
For the Appellant : Sri. S. Sreekumar.
For the Respondent: Sri. P.C. Haridas.
IMPORTANT POINTS
In the case of an unstamped document, there cannot be any application of the above said provision and as such, an unstamped document which was admitted in evidence without any objection or rejecting the objection is of no use except for collateral purpose and would stand outside the purview of Section 35 of the Kerala Stamp Act corresponding to Section 36 of the Central Act.
Headnote:
State Act viz. Kerala Stamp Act, 1959-, Sections 33, 34 and 35- The Central Act, Sections 33, 35 and 36 - The Indian Stamp Act, 1899-In the case of an insufficiently stamped document or defectively stamped document, the provision for impounding the document, Sections 33, 34 and 35 of the State Act viz. Kerala Stamp Act, 1959 corresponding to Sections 33, 35 and 36 of the Central Act - The Indian Stamp Act, 1899, would be applicable. But in the case of an unstamped document, there cannot be any application of the above said provision and as such, an unstamped document which was admitted in evidence without any objection or rejecting the objection is of no use except for collateral purpose and would stand outside the purview of Section 35 of the Kerala Stamp Act corresponding to Section 36 of the Central Act.
Statement of facts:
A suit for recovery of money was decreed by both the courts below, against which the defendant came up with this appeal. Ext.A5 is an unstamped document relied on by the plaintiff. It was accepted as a bond by the trial court and the first appellate court, after impounding the same and decreed the suit-Whether an unstamped document can be impounded under the provisions of the Kerala Stamp Act, 1959 and what would be the legal effect of Section 35 of the said Act, when it was admitted in evidence without any objection or rejecting any objection, are the questions came up for consideration in this appeal.
Finding of the court:
When there is an expert opinion obtained under Section 45 of the Evidence Act, it cannot be eschewed on the basis of a comparison of signature under Section 73 of the Act. Section 73 of the Evidence Act is a rule of caution and prudence having no overriding effect over Section 45 of the said Act. The court should always be cautious to have a comparison of disputed signature with that of admitted one as the same would principally be a job of an expert and not of the court. It cannot be at any rate used for rejecting a report of an expert on the field, though the court can reject the same on some other reasons. The rejection of expert report on a comparison under Section 73 of the Evidence Act, hence cannot be sustained. But the expert report submitted is really lacking in compliance of requirement as mandated. The expert opinion submitted should be capable of scrutiny by the court and the parties so as to enable them to test its correctness by cross examination, for which every details of conclusion with the materials should be annexed and forwarded with the expert opinion.
Result: Allowed
Question 1?
How to determine whether an unstamped document can be impounded under the Kerala Stamp Act, 1959 and the legal effect of Section 35 when such unstamped document is admitted in evidence without objection?
Question 2?
What is the proper role of expert testimony under Section 45 of the Evidence Act in relation to a signature comparison under Section 73, and how should such report be used or rejected by the court?
Question 3?
What are the appropriate consequences and remedies when an unstamped document is treated as a bond or admitted for collateral purposes, and how should the trial court replevy the matter on remand?
JUDGMENT :
P. SOMARAJAN, J.
1. Whether an unstamped document can be impounded under the provisions of the Kerala Stamp Act, 1959 and what would be the legal effect of Section 35 of the said Act, when it was admitted in evidence without any objection or rejecting any objection, are the questions came up for consideration in this appeal.
2. A suit for recovery of money was decreed by both the courts below, against which the defendant came up with this appeal. Ext.A5 is an unstamped document relied on by the plaintiff. It was accepted as a bond by the trial court and the first appellate court, after impounding the same and decreed the suit.
3. The High Court of Allahabad in Chotey vs. Girrj Kishore, AIR 1926 All 359 had taken the view that an unstamped document unless it is admissible under some other provisions of law, is mere waste paper for the purpose of judicial proceedings. But the High Court of Madras in Subramanian Chettiar vs. Revenue Divisional Officer, Devakottah, AIR 1956 Mad. 454 took a slightly different view by holding that an unstamped or defectively stamped document is not void and it is effective from the date of its execution though it is incapable of being made use of as evidence until it is stamped properly. But in that decision, no distinction was drawn between an unstamped document and a defectively stamped document (insufficiently stamped document). Further, the question whether an unstamped document can be impounded was not come up for consideration in that decision.
4. The Apex Court in Avinash Kumar Chauhan vs. Vijay Kumar Mishra, AIR 2009 SC 1489 : 2009 (1) KHC 635 : (2009) 2 SCC 532 had laid down the legal position that a document not duly stamped unless impounded under Section 33 of the Indian Stamp Act, 1899 (Central Act) shall be inadmissible in evidence by virtue of Section 35 of the said Act. Section 33 of the Indian Stamp Act, 1899 is pari-materia with Section 33 of the Kerala Stamp Act, 1959. But in that decision what is considered was an instrument “not duly stamped” and not an “unstamped” instrument.
5. Section 33 of the Kerala Stamp Act, 1959 is extracted below for reference:
33. Examination and impounding of instruments - (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed:
Provided that:
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898.
(b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt, the Government may determine:
(a) what offices shall be deemed to be public offices.
(b) who shall be deemed to be persons in charge of public offices.”
(Emphasis supplied)
6. An unstamped document stands on a different pedestal from that of a defectively stamped or insufficiently stamped document. What is dealt with under Sections 33, 34 and 35 of the Kerala Stamp Act, 1959 is only with respect to a defectively stamped or insufficiently stamped document and not an unstamped document. In Sections 33, 34 and 35, the word unstamped is conspicuously absent.
