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2007 Supreme(MP) 1002
2007(3) JLJ 336
(SUPREME COURT)
B.N. Agrawal, P.P. Naolekar and J.P. Sathasivam, JJ.
Hariom Agrawal v. Prakash Chand Malviya
Civil Appeal No.4696 of 2007: against the order of M.P. High Court,
Bench at Jabalpur, passed in Writ Petition No.1 1625 of 2005, reported
in 2007(1) MPWN 27; Decided on 8.10.2007.
Headnote:(1) Stamp Act, 1899 -- Ss.33, 35, 36, 2(14) and 3 -- only original instrument as defined under S.2(14) can be impounded -- copy of document cannot be impounded, nor can it be validated.
The High Court by its judgment dated 3.5.2006, held that the impugned document which is a photocopy of the agreement, original of which is lost, cannot be admitted in evidence; and that such a document can neither be impounded nor can be accepted in secondary evidence.
It is an admitted fact that the photostat copy which is sought to be produced as secondary evidence does not show that on the original agreement proper stamp duty was paid. The photostat copy of the agreement shows that the original agreement carried only a notarial stamp of Rs4/-. Thus the original instrument bears the stamp of sufficient amount but of improper description. From the facts of the case, the issue which requires consideration is Whether the Court can impound the photocopy of the instrument (document) of improper description exercising its power under the provisions of the Indian Stamp Act, 1899? [Paras 4 & 5
Held : It is clear from the decisions of this Court and a plain reading of sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899. AIR 1962 SC 110, 26 Ind. App. 262 and AIR 1971 SC 1072 relied on. 2007(1) MPWN 27 affirmed. [Para 8
(2) Stamp Act, 1899 -- Ss.37 and 2(14) -- M.P. Stamp Rules, 1942 -R.19 -- power of certification by Collector under S.37 and rule 19 -- can only be exercised if the document is an instrument as described under S.2( 14), i.e. original instrument. [Para 13
(3) Stamp Act, 1899 – S.48B proviso (as inserted in M.P.) -- provision -- empowers Collector to adjudicate upon adequacy of stamp duty on original instrument on basis of copy thereof -- it does not authorise Collector to impound copy of original instrument. [Para 15
¼1½ LVkai vf/kfu;e] 1899 && /kkjk 33] 36] 2¼14½ rFkk 3 && /kkjk 2¼14½ esa ;Fkk ifjHkkf"kr fy[kr gh dsoy ifjc) dh tk ldrh gS && nLrkost dh izfrfyfi ifjc) ugha dh tk ldrh] u mldk fof/kekU;dj.k gh fd;k tk ldrk gSA
mPp U;k;ky; us vius fu.kZ; fnukad 3-5-2006 esa vfHkfu/kkZfjr fd;k fd vk{ksfir nLrkost tks djkj dh QksVksizfr gS ftldh ewy djkj ij leqfpr LVkai ‘kqYd lanÙk fd;k x;k FkkA QksVksLVsV izfr ls nf‘kZr gS fd ewy djkj ij dsoy #-4@& dk dkYifud LVkai ‘kqYd lanÙk FkkA bl Hkk¡fr] ewy fy[kr ij i;kZIr dje dk LVkai gS fdarq vuqi;qDr fooj.k dk ekeys ds rF;ksa ls] ftl ij fopkj fd;k tkuk visf{kr gS] og fook|d gS % D;k U;k;ky;] Hkkjrh; LVkai vf/kfu;e] 1899 ds mica/kksa ds v/khu viuh ‘kfDr iz;qDr djrs gq, vuqi;qDr fooj.k dh fy[kr ¼nLrkost½ dh QksVks izfr ifjc) dj ldrk gS \ ¿ iSjk 4 ,oa 5À
vfHkfu/kkZfjr % bl U;k;ky; ds fu.kZ;ksa vkSj vf/kfu;e dh /kkjk 33] 35 rFkk 2¼14½ ds ljy ikB ls ;g Li"V gS fd fy[kr tks lE;d~ :i ls LVkafir rFkk ‘kkfLr lanÙk dj nh xbZ gS] LVkai vf/kfu;e dh /kkjk 35 ds v/khu og lk{; es xzg.k dh tk ldrh gSA /kkjk 33 ;k 35 dk fy[kr dh fdlh izfrfyfi ls ljksdkj ugha gS vkSj i{kdkj dsoy ml nLrkost dk voyac ys ldrk gS tks /kkjk 2¼14½ ds vFkkZarxZr fy[kr gSA nLrkost dh izfrfyfi varfoZ"V fd, tkus dh Hkkjrh; LVkai vf/kfu;e ds iz;kstuksa ds fy, dksbZ xqatkb‘k ugha gSA fuLlansg vc ;g fof/k lqLFkkfir gS fd ifjc) dh tk dj fy[kr dh izfrfyfi dk fof/kekU;dj.k ugha fd;k tk ldrk vkSj og Hkkjrh; LVkai vf/kfu;e] 1899 ds v/khu f}rh;d lk{; dh Hkk¡fr xzg.k ugha dh tk ldrhA , vkb vkj 1962 ,l lh 110] 26 bafM;u vihYl 262 rFkk , vkb vkj 1971 ,l lh 1072 voyafcrA 2007¼1½ e-iz- ohDyh uksV~l 27 vfHkiq"VA ¿ iSjk 8À
¼2½ LVkai vf/kfu;e] 1899 && /kkjk 37 rFkk 2¼14½ && e-iz- LVkai fu;e] 1942 && fu-19 && /kkjk 37 rFkk fu;e 19 ds v/khu dyDVj }kjk izekf.kr fd, tkus dh ‘kfDr && rHkh iz;qDr dh tk ldrh gS ;fn og nLrkost /kkjk ¼14½ ds v/khu ;Fkk of.kZr fy[kr vFkkZr~ ewy fy[kr gSA ¿ iSjk 13À
¼3½ LVkai vf/kfu;e] 1899 && /kkjk 42[k ijarqd ¼e/; izns‘k esa ;Fkk varfoZ"V½ && mica/k && dyDVj ewy fy[kr ij mldh izfrfyfi ds vk/kkj ij LVkai ‘kqYd dh i;kZIrrk ls U;k;fu.kZ;u ds fy, l‘kDr fd;k x;k gS && mlls dyDVj ewy fy[kr dh izfrfyfi ifjc) djus ds fy, izkf/k—r ugha fd;k x;k gSA ¿ iSjk 15À
Naolekar, J. -- 1. Leave granted.
2. The facts necessary for deciding the question involved in the case are that one Maganlal Jain was the original tenant of Prakash Chand Malviya, the respondent-landlord. Maganlal Jain had given the shop to the appellant for carrying out the business. On a dispute being arisen between the respondent-landlord, the original tenant Maganlal Jain and the appellant herein, an agreement was executed on 28.3.1988 by the respondent-landlord and the appellant (subsequent tenant), whereby the landlord tenanted the shop to the appellant on payment of an advance amount of Rs. 4,75,000/- which was received by the landlord in cash in front of the witnesses. The agreement further provided that in case the landlord requires eviction of the tenant from the shop he will have to give notice of 6 months to the landlord and the landlord will pay back RsA,75,000/- to the tenant. This document was affixed with a notarial stamp of Rs4/-. Under the Indian Stamp Act, 1899 (for short "the Act"), agreement of this nature requires affixture of a stamp of Re.1/- under Schedule I, item 42 of the said Act.
3. On 12.5.2003 a suit for eviction was filed by the respondent-landlord before the civil Judge, Bhopal under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, stating the bona fide need for the use of the accommodation by his elder son. It was the case of the appellant tenant that the original copy of the agreement which was with him was stolen and thus he was unable to produce the original document dated 28.3.1988, but was in possession of a photostat copy of the agreement and made a prayer for receipt of the photocopy of the agreement as secondary evidence under section 63 of the Indian Evidence Act, 1872. The trial Court allowed the application for admission of the photocopy of the document and admitted it as secondary evidence under section 63 of the Evidence Act.
4. On being aggrieved by the order of the trial Court, the respondent-landlord filed a writ petition before the High Court. The High Court set aside the order of the trial Court and remitted the matter back to decide the question as to whether a photocopy of an improperly stamped original document can be received in secondary evidence. After hearing the parties, the trial Court by its order dated 9.8.2005 ordered that the document be impounded, it being insufficiently stamped, the document was sent to the Collector of Stamps for affixing appropriate stamp duty and thereafter for sending the document back to the Court. This order was challenged by the respondent in a review petition which was dismissed by the trial Court. Thereafter, a writ petition was filed before the High Court. The High Court by its judgment dated 3.5.2006, held that the impugned document which is a photocopy of the agreement, original of which is lost, cannot be admitted in evidence; and that such a document can neither be impounded nor can be accepted in secondary evidence.
5. It is an admitted fact that the photostat copy which is sought to be produced as secondary evidence does not show that on the original agreement proper stamp duty was paid. The photostat copy of the agreement shows that the original agreement carried only a notarial stamp of Rs4/-. Thus the original instrument bears the stamp of sufficient amount but of improper description. From the facts of the case, the issue which requires consideration is Whether the Court can impound the photocopy of the instrument (document) of improper description exercising its power under the provisions of the Indian Stamp Act, 1899? For answering this question, sections 33 and 35 of the Act might render some help. Relevant extracts of the sections are:
"33. Examination and impounding of instruments -- (1) Every person 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, i
