1. This appeal arises out of a suit filed by the plaintiff against his brother for a declaration that he is the exclusive owner of a certain staircase. The trial Court granted the declaration which was confirmed in appeal. In second appeal it was contended that although the finding that the plaintiff was the exclusive owner of the staircase was a finding of fact based on the appreciation of evidence, that appreciation was based on a document which was not admissible in evidence for want of proper stamp. That document was a certified copy of a partition decree passed on an award, in which the staircase in dispute had been allotted to the share of the plaintiff. The original decree was not before the Court and it was contended that as the original decree had not been drawn up on a proper stamp, its secondary evidence was inadmissible and the appreciation of the evidence by the trial Court based on a certified copy of that document was thereby vitiated. Divatia J. accepted that contention and allowed the plaintiff an opportunity to get the original partition decree from the Court of the First Class Subordinate Judge and pay the necessary stamp duty and penalty. For this purpose he allowed the appeal and remanded the suit to the trial Court for disposal according to law. In remanding the suit he made the following observation:-
I think that the appeal should go back to the trial Court which should give an opportunity to the plaintiff to produce the original decree of partition from the Record of the First Class Subordinate Judge's Court and to tender it in evidence in the present suit. He may then apply to the trial Court that the decree may be admitted in evidence on his paying the required stamp of rupee one together with the necessary penalty required under the law. The defendant may urge any objection which he wishes to urge against the admissibility of the decree after the penalty is paid, and if the trial Court holds that the decree is then admissible in evidence the decision of the lower Court will stand because that is the only objection raised in this case.
2. After the papers were received in the trial Court the original decree was sent for from the Court of the First Class Subordinate Judge and admitted in evidence. The plaintiff paid the necessary stamp duty and penalty. The defendant then objected to its admissibility on the ground that a decree for partition should be stamped before or at the time it is signed by the Judge, and when once a partition decree is drawn up and signed by the Judge on unstamped paper, no stamp duty can be subsequently levied on it and the partition decree cannot be validated and admitted in evidence on a subsequent payment of the stamp duty and penalty. That contention did not find favour with the trial Court and the decree was admitted in evidence. As a result the original decree passed by it was confirmed and it was upheld in appeal. The same contention is now urged by Mr. Coyajee on behalf of the defendant and reliance is placed on a remark made in Jotindra- Mohan Tagore v. Bejoy Chand Mahatap I.L.R (1904) Cal. 488 that a decree to be operative must, under the Indian Stamp Act, be engrossed on paper as required by that Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated. In that case no decree had been drawn up nor was any stamp duty or penalty paid, and therefore, it necessarily followed that the suit had not terminated until a final decree was drawn up and engrossed on a stamp paper as required by the Indian Stamp Act.
3. Mr. Coyajee also referred to Pandivi Satyanandam v. Paramkusam Nammayya A.I.R  Mad. 307 where a decree in a partition suit, which in substance was a final order effecting partition, was not engrossed on a proper non-judicial stamp, at the time when it was signed by the Judge, was sought to be executed, it was held that there was no proper executable decree and it was observed that the decree could not be validated with retrospective effect by payment of stamp duty and penalty. Mr. Coyajee also relied upon the remark in Jotindra Mohan v. Bejoy Chand that a final decree for partition has no existence as a decree until it is engrossed on the proper non-judicial stamp paper. In the present case, however, the decree is not sought to be executed and the only question to be decided by the trial Court was whether the decree was admissible in evidence on payment of the necessary stamp duty and penalty, and once such stamp duty and penalty are levied and .the document is admitted in evidence, then under Section 36 of the Indian Stamp Act its admissibility cannot be called in question at any subsequent stage on the ground that the instrument has not been duly stamped. Section 35 of the Indian Stamp Act provides that no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon unless such instrument is duly stamped; and proviso (a) to that section allows such an unstamped document to be admitted in evidence on payment of the duty with which it is chargeable and the prescribed penalty. That section makes a clear distinction between admitting a document in evidence and acting upon it and Section 36 says that once such a document is admitted in evidence, then its admissibility cannot be called in question subsequently on the ground that it has not been duly stamped. In Pandivi Satyanandam v. Paramkusam Nammayya, this distinction was clearly pointed out as follows (p. 311) :-
Section 36 deals only with the admission of instruments in evidence. There is no question here of admitting the decree in evidence; the question is one of executing the decree.
4. In the present case also we are not concerned with the execution of the decree but only with its admissibility. If its admissibility cannot be questioned in - appeal under Section 36 of the Indian Stamp Act, it forms a part of the evidence, and the contention that the finding of the trial Court based on the appreciation of evidence was vitiated by the admissibility of an unstamped document can no longer be urged.
5. In this connection it may also be pointed out that the ruling in Pandivi Satyanandam v. Paramkusam Nammayya and the remark in Jotindra Mohan v. Be joy Chand were considered by a full bench of the Lahore High Court in Gopi Mal v. Vidya Wanti I.L.R (1941) Lah. 307 and it was observed that although a decree be not drawn on a, properly stamped paper it was none the less a decree, though not a decree that could be acted upon until proper stamp was supplied, that the decree could be validated by the addition of the proper stamp, and that it could not therefore be said that in such a case there was no decree at all in the sense that that decree was merely a piece of waste paper which could not be validated by the addition of the stamp unless the presiding officer re-signed the decree after it was stamped.
6. In view of the wording of Section 35 of the Indian Stamp Act and its proviso, I respectfully agree with the view taken by the full bench of the Lahore High Court. It follows, therefore, that the original decree is properly held admissible in evidence under Section 35 of the Indian Stamp Act, and under Section 36 its admissibility cannot now be questioned in appeal.
7. The appeal is, therefore, dismissed with costs.