1. The only point taken in this appeal is that the lower Appellate Court was wrong in holding that the rote was not admissible in evidence. The roka was admitted by the Munsif, who was of opinion that it ought to have been stamped; and he require the person who filed it to pay stamp duty and a penalty. Such stamp duty and penalty having been paid, he admitted the document in evidence.
2. The Subordinate Judge was of opinion that the Munsif had wrongly applied the provisions of the Stamp Act. He considered that the stamp which ought to have been put upon the roka was a one-anna adhesive stamp; and inasmuch as this stamp had not been originally affixed, he held that the defect could not be cured by the payment of a penalty, and that the document was absolutely inadmissible in evidence.
3. We think that the Subordinate Judge had no authority, sitting in appeal, to review the Munsif s proceeding in so far as it concerned the admission of the roka in evidence. The new Stamp Act, I of 1879, governs the case, the point being one of procedure. Section 34 of this Act enacts, 'that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law, or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person, or by any public officer, unless such instrument is duly stamped: provided that,'--then come two provisos-and the third proviso is that 'when an instrument has been admitted in evidence, such admission shall not, except as provided in Section 50, be called in question at any stage of the same suit or proceeding, on the ground that the instrument has not been duly stamped.' Section 50 empowers an Appellate Court of its own motion, or on the application of the Collector, to take into consideration the order of a subordinate Court admitting an instrument in evidence upon payment of the duty and penalty, but for one purpose merely, that is, for the purpose of ascertaining whether the Government revenue has suffered; whether a higher duty and penalty than that required by the Court of First Instance ought to have been demanded from the person filing the document. This section clearly does not apply to the present case. The result is that, inasmuch as the third Clause of Section 34 is not as regards this case affected by Section 50, the admission in evidence of the document by the Court of First Instance could not be questioned or interfered with by the Court of Appeal.
4. We think, therefore, that the Subordinate Judge was wrong in excluding the roka from his consideration on the ground that it was not admissible in evidence. We must, therefore, set aside his decree, and remand the case in order that the Subordinate Judge may consider the effect of the roka as evidence, and decide the appeal accordingly. Costs will abide the result.