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Nallajerla Satyavati and ors. Vs. Vijjapu Pallaya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad431
AppellantNallajerla Satyavati and ors.
RespondentVijjapu Pallaya
Cases ReferredVenkanna v. Parasuram
Excerpt:
- - it may of course happen in some cases that a document, which is not admissible for want of stamp, is allowed by the court to go in, the question of stamp escaping its notice as well as the attention of the parties......regarding want of registration. in a way this is also supported by the plaintiffs, but the learned judge overruled the objection of the defendants and admitted it by marking it as ex. g, and his order runs as follows:exhibit g is a copy of the award engrossed on stamp paper. it is the case for plaintiffs that the original award engrossed upon a stamped paper was stolen fraudulently by defendant 2 and that it could not be registered on account of the fraud committed by defendant 2. moreover the award so far as these plaintiffs are concerned relates to moveable properties. objection is therefore overruled.2. it does not appear from the order whether the learned judge was overruling both the objections, namely, the objection as to insufficiency of stamp and the objection as to.....
Judgment:
ORDER

Venkataramana Rao, J.

1. This is a Civil Revision Petition to revise the order of the learned Subordinate Judge of Vizagapatam rejecting a document, Ex. G, in the case as inadmissible on the ground that it was insufficiently stamped in supersession of a prior order admitting it on 7th September 1934. The suit was filed by the plaintiffs in O.S. No. 26 of 1933 for recovery of certain sums of money due to them from defendants 1 to 3 in the case. It was their case that this matter was referred to arbitration and that the arbitrator was also inquiring into the claims relating to the partition between defendants 1 to 3. He delivered an award on 12th April 1930 in and by which he decreed certain sums as payable by defendants 1 to 3 and the claim was based on the award. In the written statement filed by defendant 1 it was not alleged that the document was insufficiently stamped, and that the suit cannot be based thereon. When P.W. 1 was being examined objection was taken to its admissibility. It is the case of defendant 2 and I think it is also the case of the other defendants, that this specific objection as to insufficiency of stamp was taken along with the objection regarding want of registration. In a way this is also supported by the plaintiffs, but the learned Judge overruled the objection of the defendants and admitted it by marking it as Ex. G, and his order runs as follows:

Exhibit G is a copy of the award engrossed on stamp paper. It is the case for plaintiffs that the original award engrossed upon a stamped paper was stolen fraudulently by defendant 2 and that it could not be registered on account of the fraud committed by defendant 2. Moreover the award so far as these plaintiffs are concerned relates to moveable properties. Objection is therefore overruled.

2. It does not appear from the order whether the learned Judge was overruling both the objections, namely, the objection as to insufficiency of stamp and the objection as to registration. But the learned Judge in spite of what the parties have stated says in his judgment that so far as his recollection goes he did not deal with the question of the objection relating to insufficiency of stamp. The question is, has he got jurisdiction to upset the order already passed by him? According to the plain language of Section 36, Stamp Act, once a document is admitted by the Court in evidence it has no jurisdiction to reject it on the ground that it was not duly stamped at any later stage of the suit. As observed by Rankin, C.J. in Nirode Basini v. Sital Chandra : AIR1930Cal577 .

Under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection.

3. It is also the view taken in Jagdip Singh v. Firangi Singh : AIR1928Pat155 . In our High Court Madhavan Nair, J. took this view. In the case which is reported in Venkateswara Iyer v. Ramanatha Deekshitar : AIR1929Mad622 , a suit was filed upon a promissory note which was insufficiently stamped. Objection was taken in the written statement that it was insufficiently stamped, but no issue was framed on that matter and the document was admitted in evidence. In the appeal the Subordinate Judge raised an issue and decided the matter adversely to the plaintiff. In revision the learned Judge, Madhavan Nair, set aside the order holding that the Subordinate Judge had no jurisdiction to go into matter once a document had been admitted in evidence Under Section 36, Stamp Act. He observes thus:

It was admitted in evidence in the ordinary course without any objection by the Court of first instance and therefore Under Section 36, Stamp Act, it was not open to the defendant in the appellate Court to question its admissibility on the ground that it had not been properly stamped.

4. This view has been since followed in Noor Ahmad v. Irshad Ghaus : AIR1933All821 . But the learned Advocate-General contends that Under Section 36 the admission of a document in evidence must be after a consideration of the specific objection relating to want or insufficiency of stamp, and he relies very strongly on the observations of Chandavarkar, J. in Chunilal Tulsiram v. Mulabai : (1910)12BOMLR466 to the following effect:

'Admitted in evidence' means the act of letting the document in as part of the evidence; but it must be letting in as a result of judicial determination of the question whether it can be admitted in evidence or not for want of stamp.

5. With respect to the learned Judge I do not see any warrant for introducing this limitation and qualifying the plain language of Section 36, but the learned Judge himself explains what he means by 'judicial determination of the question'. He says:

In other words, the Court admitting it must have applied its mind consciously to the question whether the document is admissible or not. It may of course happen in some cases that a document, which is not admissible for want of stamp, is allowed by the Court to go in, the question of stamp escaping its notice as well as the attention of the parties. In such cases the admission is a judicial determination of the question, because the Court let in the document on its view that there was nothing against its admission.

6. This seems to indicate that if a document had been admitted without objection there was a judicial determination of the question and the document must be deemed to have been admitted in evidence. I see no difference between this view and the views taken by Rankin, C.J. and Madhavan Nair, J. The observations of Chandavarkar, J. on which the learned Advocate-General relied must be understood with reference to the facts of the particular case with which the learned Judge was dealing. In that case there was an issue raised as to the insufficiency of stamp but the consideration of the question was postponed and pending the determination of that question the document was marked as an exhibit. Therefore the document could not be deemed to have been admitted in evidence within the meaning of Section 36. The same was the case in Abdul Wahab Saheb v. Kanaka Anjaneyalu : AIR1935Mad888 decided by Pandrang Row, J. and in Jaganath v. Mt. Chauli AIR 1933 Lah 271, decided by the Lahore Court. So in all these cases there was no admission of the document in evidence within the meaning of the said section. Again, reliance was placed by the learned Advocate-General on Rules 3 and 4 of Order 13, Civil P.C. Rule 3 says that:

The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

7. But the Rule must be taken subject to the provisions of Section 36, Stamp Act, which is mandatory. Once a document is admitted in evidence no objection as regards insufficiency of stamp can be taken and the provision in Rule 3, Order 13 must yield to this. Again, the case in Venkanna v. Parasuram AIR 1929 Mad 522 was relied on. According to the said decision 'a mere mechanical act of endorsement is not sufficient to constitute admission in evidence'. In fact, Phillips, J. says that:

Once it has been admitted in evidence, even in a subsequent stage of the same suit, it is clear that, under that section, objection could not be taken when there had been such admission. What has to be determined in each case is whether there has been an 'admission' or not.

8. Therefore there is nothing in this decision which runs counter to the view I have already stated. The question is whether the document has been admitted in evidence and not whether it was admitted after a special objection relating to the sufficiency of stamp was taken and determined. In this case objection was taken with regard to its admissibility. I shall assume only with reference to registration and not to want of stamp. But the learned Judge overruled the objection and admitted the document in evidence. That is quite enough admission within the meaning of Section 36, Stamp Act. I am therefore of opinion that the learned Judge had no jurisdiction to go behind his order admitting the document. Section 36 will also apply when secondary evidence of an instrument not duly stamped has been wrongly admitted. I therefore set aside the order of the learned Subordinate Judge and allow this Civil Revision Petition with costs both here and in the Court below.


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