Skip to content


Sheik Meera Sahib Vs. Akkalaneni Venkatapathi Naidu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 557 of 1947
Judge
Reported inAIR1951Mad326; (1950)2MLJ544
ActsStamp Act, 1899 - Sections 36
AppellantSheik Meera Sahib
RespondentAkkalaneni Venkatapathi Naidu
Appellant AdvocateK. Umamaheswaram, Adv.
Respondent AdvocateK. Krishnamurthy and ;M. Dwarkanath, Advs.
DispositionAppeal dismissed
Cases ReferredSatyavati v. Pallayya
Excerpt:
- .....109 and also to the language of section 36 and came to the conclusion that section 35 excludes the original instrument itself and secondary evidence of its contents. under section 86, similarly, whether the original instrument or secondary evidence of its contents has in fact been admitted, that admission cannot be called in question in the same suit on the ground that it was not properly stamped. the peshawar judicial commissioner's court, however, takes a different view, vide bhagwan das v. amar das, 176 i.c. 312 : a.i.r 1938 pesh. 32. in view of the several decisions which have taken a view in favour of making the admission of a copy final even if the original instrument was not properly stamped, i am not prepared to accept the view of the peshawar court. there is no dissent in our.....
Judgment:

Satyanarayana Rao, J.

1. Defendant 3 is the appellant in this second appeal. The suit out of which this second appeal arises was instituted for a declaration of the plaintiff's title to the plaint schedule properties and for possession. To establish his title the plaintiff relied upon an agreement of sale dated 26-7 1926, EX p. 8, executed by one Subbayya in favour of defendant 1 and a conveyance by defendant 1 dated 19-8-1944, Ex. p. 1, in his favour. Defendant 3 claimed that the purchase by defendant 1 from Subbayya the original owner was really for his benefit and he relied in support of his title upon Ex. D-1 dated 26-7-1926, i.e., the same date as Ex. p. 8 which, it is alleged, was executed by Subbaya in favour of defendant 3 who was then a minor represented by defendant 1 as guardian. It has now been found by the Courts below that Ex. D-1 is not genuine. The only question which remains outstanding for disposal and which is a question of law is whether Ex. p. 8 which is a copy of the original agreement by Subbayya in favour of defendant 1 is admissible in evidence as the original (which?) it is common ground, was not stamped as required by law. The copy Ex. p. 8 was admitted by the trial Court without any objection. Objection regarding its admissibility was for the first time raised in the lower appellate Court. As no objection was raised in the trial Court and as it was admitted in evidence it was held by the lower appellate Court that under Section 36, Stamp Act, the defendant was not entitled to raise the objection at a later stage in the appeal. In this view the learned Judge followed the decision of Venkataramana Rao J. in Satyavati v.Pallayya, A.I.R. 1937 Mad. 481 : 169 I. C. 641.

2. In this second appeal, the correctness of this decision was questioned. In Raja of Bobbili v. Inuganti China Sitaramasami Garu, 23 Mad. 49 : 26 I.A. 262 the Judicial Committee considered Section 34, Stamp Act of 1879 which corresponds to the present Section 85. The document that was produced as secondary evidence of the original grant in that case was an unauthenticated copy of an original draft of a deed of gift of the plaint lands. Objection to its admissibility was taken soon after it was produced in Court on the ground that it was a copy of a document which was insufficiently stamped. The objection was given effect to and the trial Court refused to receive the document tendered as secondary evidence of the grant. On appeal the High Court agreed with the view of the trial Judge and this was affirmed by the Judicial Committee. It was pointed out by the Judicial Committee that that section (Section 34) had exclusive reference to the admission as evidence of original documents which were not stamped at the time of their execution or were insufficiently stamped and as the original was not available and could not be produced, it was impossible for the Collector to impose the duty leviable upon the instrument. Under those circumstances, the Judicial Committee had no doubt in upholding the objection regarding the admissibility of secondary evidence of the original document which was tendered in evidence. Under Section 36, Stamp Act, if an instrument has been admitted in evidence such admission, except as provided in Section 61, shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The language of the section is imperative and no objection at any stage of the suit or proceedings can be raised on the ground of insufficiency of stamp on the original. This view was taken by Venkataramana Rao J. in Satyavati v. Pallayya, A. I. R. 1937 Mad. 431 : 169 I. C. 641 and the opinion of the learned Judge was based upon an earlier decision of Madhavan Nair J, in Venkateswara v. Ramanatha : AIR1929Mad622 and of Rankin C. J. in Nirode Basini v Sithalchandra : AIR1930Cal577 . He also points out that the view taken by Madhavan Nair J. was followed by the Allahabad High Court in Noor Ahmed v. Irshad Ghaus A.I.R. 1933 ALL. 621 : 56 ALL. 131. The Rangoon High Court referred to the decision of the Privy Council in Raja of Bobbili v. Inuganti China Sitaramaswami Garu, 23 Mad. 49 : 26 I. A. 262 in Mating Po Htoo v. Ma Ma Cyi, 4 Rang. 363 : A. I. R. 1927 Rang, 109 and also to the language of Section 36 and came to the conclusion that Section 35 excludes the original instrument itself and secondary evidence of its contents. Under Section 86, similarly, whether the original instrument or secondary evidence of its contents has in fact been admitted, that admission cannot be called in question in the same suit on the ground that it was not properly stamped. The Peshawar Judicial Commissioner's Court, however, takes a different view, vide Bhagwan Das v. Amar das, 176 I.C. 312 : A.I.R 1938 Pesh. 32. In view of the several decisions which have taken a view in favour of making the admission of a copy final even if the original instrument was not properly stamped, I am not prepared to accept the view of the Peshawar Court. There is no dissent in our Court and I think the Court below was right in following the decision in Satyavati v. Pallayya : AIR1937Mad431 .

3. This was the only point argued in the second appeal. The second appeal fails and is dismissed with costs. (No leave).


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