Skip to content


Gurpada BIn Irapa Vs. Naro Vithal Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom493
AppellantGurpada BIn Irapa
RespondentNaro Vithal Kulkarni
Excerpt:
stamp act (i of 1879), section 36, clause (3) - instrument admitted as duly stamped--appellate court's power to question the admission--regulation xviii of 1827, section 10--practice. - birdwood, j.1. the subordinate judge admitted in evidence, as duly stamped the memorandum of partition which the plaintiff filed as part of the evidence in support of his claim to the property in suit. it would appear that the subordinate judge rightly admitted the document, as under the decision of this court in regular appeal no. 5 of 1866, decided on the 28th april 1868, such a document would not come within the description of deeds given in section 10 of regulation xviii of 1827, and therefore required no stamp at all, but whether that be so or not, it was not, we think, competent to the district judge, on appeal, to question the admission of the document, and to hold that the decision in the former suit between gopal, through whom the plaintiff claims, and govind, through whom the.....
Judgment:

Birdwood, J.

1. The Subordinate Judge admitted in evidence, as duly stamped the memorandum of partition which the plaintiff filed as part of the evidence in support of his claim to the property in suit. It would appear that the Subordinate Judge rightly admitted the document, as under the decision of this Court in Regular Appeal No. 5 of 1866, decided on the 28th April 1868, such a document would not come within the description of deeds given in Section 10 of Regulation XVIII of 1827, and therefore required no stamp at all, But whether that be so or not, it was not, we think, competent to the District Judge, on appeal, to question the admission of the document, and to hold that the decision in the former suit between Gopal, through whom the plaintiff claims, and Govind, through whom the defendant claims, was conclusive between the parties as to the insufficiency of the stamp, it having been decided in that suit that the document was insufficiently stamped. The Judge says that in the present case no question arises as to the admissibility of the document, and that the only question is as to its validity. It having been found in the former cage to have been insufficiently stamped under Regulation XVIII of 1827, and that decision being, in his opinion res judicata, the document is, he thinks, absolutely ineffectual, and must be put out of consideration. He relies on the decision of this Court in Girdhar Nagjishet v. Ganpat Moroba 11 Bom. H.C. R. 129. Certainly under Section 10 of the Regulation no document requiring a stamp thereunder was valid unless duly stamped, and under Act XXXVI of 1860, which repealed the Regulation, and under subsequent Stamp Acts passed before Act I of 1879 became law, the provisions of Section 10 of the Regulation still continued to apply to instruments executed while the Regulation was in force. But a change in the law seems to have been made by Act I of 1879, which by giving in Section 3, Clause 5, a wider meaning to the word 'chargeable,' as used in the Act, than had been given to it in any of the prior Acts, brought within the scope of Section 34 all instruments to which otherwise the provision in Section 10 of the Regulation of 1827, to which we have referred, would have been applicable. There can be no question that Section 34 of Act I of 1879 applies to all instruments whenever executed, and it must be held to override the special provision of Section 10 of the Regulation as regards the instrument now in dispute, if it be assumed for the moment that it is not sufficiently stamped. That instrument having been admitted by the Subordinate Judge as duly stamped under the Regulation, it ought to have been held under Clause 3 of Section 34 of Act I of 1879 to have been duly stamped when it came under the consideration of the Appellate Court. If that Court considered it to be insufficiently stamped, it could only question the decision of the Subordinate Judge under Section 50 of the Act. For the purposes of the appeal it was bound to deal with it as duly stamped, and that being so, no question of its validity under the Regulation could arise. We must therefore reverse the decision of the District Judge and direct that the appeal be heard on the merits. Costs to abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //