Gopal Rao Ekbote, C.J.
1. This revision petition has come to us on a reference made by our learned brother, Parthasarathi J. In his order of reference dated 6.7.1971.
2. The facts in brief are, that a suit was instituted by three brothers against their cousins. There was a partition, effected among the members of the family. The plaintiffs' case was that the land bearing S.No. 236 was divided into two portions and the defendants got one moiety and the father of the plaintiffs, the other half. The filed was sub-divided into two survey numbers. The plaintiffs' father got a new S.No. 236/AA while the defendants got S.No. 236A. In 1965-66, the defendants were admitted into possession of the land as lessees. They defaulted in payment of rent. They also denied the title of the plaintiffs. The suit was, therefore, laid for recovery of the amount due under the lease, as also for recovery of arrears of rent and for possession.
3. The defence set up by the defendants was that in the partition which took place in Fasli 1352, one moiety of the land in S.No. 236 was allotted to them. There was subsequently an exchange, as a result of which the defendants surrendered their land in the field bearing S.No. 28 in exchange for a moiety in S.No. 236 allotted to the plaintiffs, as also some other land. The patwari, however, did not carry out the entries according to the exchange.
4. At the trial, the defendants sought to file a copy of the document described as Faisali Salisi dated 10th Maher, 1352 Fasli. It was claimed that the original deed a Faisali Salisi which effected a partition was filed in Tahsil Office in File No. 55/13/1953. The application made by the defendants to Tahsil Office for return of the original document proved ineffective, as the Tahsil Office stated that the document is not traceable. A copy of the Faisali Salisi was therefore tendered as secondary evidence.
5. The plaintiffs took an objection that the original document of Faisali Salisi effecting a partition was unstamped and unregistered. The copy, therefore, being secondary evidence, is inadmissible in evidence.
6. The Trial Court refused to receive the copy for any purpose. It held that Section 35 of the Indian Stamp Act presents a bar for receiving any secondary evidence. It was to challenge this order of the Trial Court, that the present revision petition has been filed.
7. The learned Judge thought that the decisions in Chidambaram Chettiar v. Meyyappan Ambalam, ILR (1946) Mad 672 = (AIR 1946 Mad 298); Venkata Subba Rao v. Kesava Rao, 1968-1 Andh LT 14 and Lachmareddy v. Sham Row, 1966-2 Andh LT 230 required reconsideration in the light of the Full Bench decision of this Court in Venkataratnam v. Chelamayya, : AIR1967AP257 (FB). In that view of his, he has referred the matter to a Division Bench. That is how the matter has come before us.
8. In ILR (1946) Mad 672 = (AIR 1946 Mad 298); Leach, C.J. who spoke for the Division Bench, held that where the destruction of the original deed was caused by the wrongful act of the party objecting to the reception of the copy as evidence at the trial, even then secondary evidence is not admissible, if the original was not stamped or was insufficiently stamped. The learned Judge observed:
'It was the duty of the parties to an agreement to take care that, when it was executed, it was properly stamped; and it was one of the risks attendant upon an omission to do this that, if an accident happened to the document before the stamp was affixed, there was no remedy'.
9. In (1966) 2 Andh LT 230, Gopalakrishnan Nair, J. Observed that it would be deliberately circumventing Section 35 of the Act to seek to adduce secondary evidence of the contents of unstamped document and try to establish right and title to property on foot of such evidence.
10. In 1968-1 Andh LT 14 (One of us, Gopal Rao Ekbote, J.) it was held as follows:
'When the agreement was insufficiently stamped and was not before the Court and when no question of curing its defect by payment of deficit court-fee and penalty could arise, no parole secondary evidence was admissible'.
11. The same judgment was carried in appeal to the Supreme Court in Jupudi v. Pulavarathi, : 3SCR590 and the said judgment was confirmed. It was held therein as follows:-
'Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirement of the provision which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a documents which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act'.
12. The same view was earlier held by the Supreme Court in State of Bihar v. Karam Chand & Bros., : 1SCR827 . It was stated that under Section 35 of the Stamp Act, there can be validation only of the original, when it is unstamped or insufficiently stamped. It is now well steeled that the copy of an instrument cannot be validated. Their Lordships followed the decision in Rajah of Bobbilli v. Inuganti China Sitaramasami Garu, (1899) 26 Ind App 262 (PC).
13. The same view was reiterated in Ramalinga Prasad v. Sivarama Prasad, 1968-2 Andh LT 212 by the Supreme Court, their Lordships observed (at Page 218):-
'There is therefore a bar against the admission of evidence of any instrument which is chargeable with duty if it has not been duly stamped. It is now settled law that the document which may be admitted in evidence on payment of penalty is the original document and not a copy thereof'.
14. Similarly, their Lordships stated (at page 219) as follows:-
'The documents being inadmissible, both on the ground that a certified copy is not admissible unless the original is proved to have been lost or destroyed or is otherwise not available and also on the ground that the original being unstamped, secondary evidence thereof is inadmissible in evidence even on payment of penalty'.
15. This being now the settled position of law, let us see whether : AIR1967AP257 (FB) (Supra) in any manner strikes a discordant note.
16. The relevant facts of that case were, that the arbitrators gave the original award the pronounced it on 10-11-1955. The arbitrators, however, engrossed a copy of the award on a stamp of Rs. 2865/- on 6-3-1956. It was argued on the basis of these facts that the award was not duly stamped and was not therefore admissible in evidence, in view of Section 35 of the Indian Stamp Act. It was further contended that under Sec. 17 of the Stamp Act, all instruments chargeable with duty by any person executed in India shall be stamped before or at the time of the execution.
17. The Supreme Court decision above referred to in : AIR1967AP257 (FB) (supra) referred to Rikhabdass v. Ballabhdas, : AIR1962SC551 and extracted two passages from the said judgment and then observed:
'This decision seems to preclude the argument that a stamped copy of an award can be received in evidence and acted upon by the Court under Section 17 of the Act'. Their Lordships also referred to the decision in Srinivasa Rao v. V. Narasimha Rao, : AIR1963AP193 in which it was held that a stamped copy of an award cannot be made a rule of the Court under Section 17 of the Arbitration Act, 1940. It will thus be seen that even in that case the Full Bench held that a stamped copy of an award which was not stamped properly, cannot be received in evidence and acted upon. That part of the decision therefore is perfectly in accord with the several decisions of the Supreme Court and of this Court referred to above.
18. In that case, however, in view of the facts, the Full Bench held:
'Although we cannot regard the original award to have been duly stamped, we do not find any serious objection in the circumstances of the case to treat the stamp on the copy of the award as intended to serve as payment of stamp duty and penalty under proviso (a) to Section 35 of the Stamp Act, so as to enable the original award to be admitted in evidence'.
19. The Full Bench also held that the document in question was not a document evidencing or embodying a partition of immovable property and it only created a charge on immovable properties for certain specified amounts. Thus, it was found that since the stamp duty and penalty payable under proviso (a0 to Section 35 of the Stamp Act was paid, the original award was admissible in evidence.
20. It will immediately be plain that there the original award was filed in the court. No question of any secondary evidence therefore could have arisen. The original award was not stamped. The stamp however with penalty was paid on the copy of the award. The Full Bench held that on the facts and in the circumstances of that case, the original award can be said to have been admitted in evidence under the proviso (a) to Sec. 35 of the Stamp Act, inasmuch as the required stamp was paid along with the penalty.
21. We fail to see how the Full Bench can be said to strike a different note. In fact the question before the Full Bench was entirely different. The argument advanced before the Full Bench, although may have some relevance, was rejected on the facts of that case. That decision, therefore, cannot be said to be an authority for taking a contrary view to what has been held by the above referred decision of this Court as well as the Supreme Court.
22. It is also pertinent to note that the above said Full Bench decision was taken appeal to the Supreme Court. The Supreme Court in M.Chelamayya v. M. Venkataratnam, : AIR1972SC1121 upheld the said Full Bench judgment.
23. For the reasons which we have given, the trial Court, in our, view, was right in holding that when the original deed was unstamped or insufficiently stamped, no copy of it by way of secondary evidence is admissible in evidence, in view of Section 35 of the Stamp Act. The said decision of the Trial Court is perfectly in accord with what we have stated above. The revision, therefore, is accordingly dismissed with costs.
24. Revision dismissed.