1. Most of the facts giving rise to this second appeal by the defendant are no longer in dispute and may be stated at the outset. The plaintiff and the defendant are brothers to each other and up to the date of the institution of the suit were sharing for the purpose of their residence a house which their father Bela Singh purchased for Rs. 2,500/- from one Teja Singh under a registered sale deed (Exhibit P-3) executed on the 29th of January, 1959. On the 4th of February, 1963, Bela Singh executed an agreement (a copy of which is Exhibit D-1) transferring a part of the house in favour of the plaintiff and the rest of the house in favour of the defendant who was directed to pay a sum of Rs. 400/- to the plaintiff in view of the fact that the part of the house given to him (the defendant) had a greater market value than the other part. It was also stipulated in the agreement that each of the two sons would pay Rs. 30/- per month to their father for his maintenance and that if either of them failed to do so, the father would be entitled to get back the property transferred to that son. A stamp duty of Rs. 2/4/- was paid in respect of the agreement. On the same date another agreement (evidenced by copy Exhibit D-2) was executed by the two sons and their father. That agreement recited that the father had partitioned his property amongst the sons who were to pay him Rs. 30/- per month by way of maintenance and that if either of them committed default, he would forfeit his share of the property to the father. In respect of this agreement also the stamp duty paid amounted to Rs. 2/4/- -.
The two sons occupied the portions respectively allotted to them thereafter and the defendant paid a sum of Rs. 400/- to the plaintiff as stipulated in the agreement first mentioned.
By virtue of a registered deed of gift executed on the 29th of September, 1967(Exhibit P-1) Bela Singh transferred the whole of the house to the plaintiff.
2. The plaintiff instituted the suit giving rise to the present appeal on the 12th of March, 1969, for recovery of possession of that portion of the house which the defendant was occupying. The case of the plaintiff was that by reason of the deed of gift in his favour he had become the owner of the entire house to the exclusion of the defendant. The case set up by the defendant was that he had acquired the portion of the house in his possession under a partition of joint Hindu family property and that the plaintiff was also estopped from bringing the suit by reason of the fact that he had been paid the amount of Rs. 400/- above mentioned by the defendant.
The trial Court held that the house was not proved to be joint Hindu family property but further found that 'a partition had taken place and the disputed portion had been allotted to the defendant under that partition. He had been in possession of the same as owner since then and has been residing in that very portion for the last ten years'. In this connection the trial Court relied on copies (Exhibits D-1 and D-2) of the two agreements appearing in the register of the deed-writer who had scribed those agreements. While commenting upon Exhibit D-1 the trial Court remarked that it was not merely a memorandum of a past transaction but was a deed of partition and, therefore, being unregistered, could be looked into only for a collateral purpose which, according to the trial Court, was that the defendant had been in exclusive possession of the disputed portion of the house as owner since 1963. The suit was, therefore, dismissed by the trial Court.
Against the decree passed by the trial Court the plaintiff instituted an appeal which was accepted by Shri N.S. Bhalla, Additional District Judge, Gurdaspur who decreed the suit holding that the transfer in favour of the defendant had been brought about by a deed which was unregistered but which was liable to compulsory registration and which could not have preference over the subsequent registered gift deed (Exhibit P-1).
It is against the decree passed by the learned Additional District Judge that the defendant has come up in second appeal to this Court.
3. The first contention raised by learned counsel for the appellant is that the doctrine of part performance embodied in Section 53A of the Transfer of Property Act was applicable to the case and that by reason thereof the plaintiff deserved to be non-suited. Such a plea, however, is conspicuous by its absence from the written statement filed by the defendant before the trail Court and does not appear to have been advanced at any earlier stage. Being a plea embracing questions both of law and fact, it cannot be raised for the first time in second appeal (see Karam Chand v. Banwari Lal, AIR 1965 Punj 117), and is, therefore, not entertained. It may, however, be observed that even if it could be taken notice of, there would still be an insurmountable hurdle in the way of the defendant and that is the insufficiency of stamp duty paid in respect of the instrument, a copy of which is Exhibit D-1. There is the concurrent finding of fact by the two Courts below that the house purchased by Bela Singh was not joint Hindu family property. If that be so, the document of which Exhibit D-1 is a copy must be held to be a gift-deed in favour of the two sons by the father. It is common ground between the parties that the value of the house on the 4th of February, 1963, was no less than that for which it was purchased more than 4 years earlier so that the stamp duty to which it was liable far exceeded the amount of Rs. 2/4/- paid in respect of it. Learned counsel for the defendant has urged that Exhibit D-1 can be looked into in spite of the insufficiency of the stamp duty paid in respect of it because of the provisions of Section 36 of the Indian Stamp Act which lays down:
'36. Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'
This section, however, does not lend any assistance to the case of the defendant inasmuch as it has no application to the admission of secondary evidence. It talks only of the admission of an instrument and does not apply to copies of instruments chargeable with stamp duty. In holding so, their Lordships of the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao,, AIR 1971 SC 1070 observed:
'Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document 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.
If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.'
In this view of the matter document Exhibit D-1 cannot be looked into as evidence of the contents of the instrument of which it forms a copy.
Learned counsel for the defendant contended in the alternative that agreement Exhibit D-2 was sufficiently stamped and was fully admissible in evidence. That no doubt is true but then that document does not specify the property transferred to the defendant by his father and is, therefore, of no avail to the case of the former in so far as the identity of such property is concerned. And if that be so, we are not left with any evidence of the alleged gift or transfer of a share of the house in favour of the defendant. Gift deed Exhibit P-1, therefore, must be given full effect to.
4. The last contention raised by learned counsel for the defendant, though half-heartedly, was that there was no evidence on the record of the acceptance by the plaintiff of the gift made in his favour through document Exhibit P-1 and that that gift was, therefore, invalid. The contention is wholly without force. The gift deed was signed by the plaintiff both at the time of its execution as well as when it was presented to the Sub-Registrar for registration. His signatures on the two occasions must be held to have been appended in token of the acceptance of gift.
5. In the result, the appeal fails and is dismissed but with no order as to costs.
6. Appeal dismissed.