Renupada Mukherjee, J.
1. The subject matter of this appeal lies within a very limited compass, viz., whether the certified copy of a certain deed, the original of which is lost and untraced and which was insufficiently stamped, can be admitted in evidence and used by the plaintiff-appellant.
2. In order to understand how this controversy, which is a controversy on a pure question of law, has arisen between the parties it will be necessary to set out only the following facts about which there is no dispute. One Anandamoyee Sarkar who was mother of Chinmoyee Bakshi, plaintiff in the Trial Court and appellant of this appeal, was the owner of certain collieries, and as she had financial difficulties in running them, she took financial and other assistance from her daughter, the plaintiff, who set up plants and machineries in the collieries and was admitted as a partner of her mother in the colliery business.
A deed of partnership was accordingly executed by the parties on the 11-12-1937. The partnership was subsequently dissolved by an agreement for dissolution of the partnership executed by the mother and the daughter on 13-3-1938.
3. The principal terms of this deed for dissolution of partnership were the following: First, in lieu of the dissolution Rs. 20,000/- was to be paid to Chinmoyee out of which Rs. 10,000/- was paid at the time of the execution of the deed of dissolution and the balance of Rs. 10,000/- was to be paid within three months from that date. Secondly, the colliery property of the mother was kept in charge as security for payment of the above sum of Rs. 10,000/-.
It was further agreed between the parties that by payment of the sum of Rs. 10,000/- a hand-note which Anandamoyee had executed in favour of plaintiff's husband would become satisfied.
4. The plaintiff's case was that the above sum of Rs. 10,000/- was not paid. She accordingly instituted the present suit in the Trial Court for recovery of the money with interest according to the terms of the deed of dissolution of the partnership.
5. Anandamoyee having died before the institution of the suit, her son Asokemohan Sarkar and another daughter Renubala Biswas were made defendants Nos. 3 and 4 in the Trial Court. Asokemohan having died during the pendency of the suit in the Trial Court his heirs were substituted in his place as defendants Nos. 3(a) to 3(c).
6. Defendant No. 2, New Birbhum Coal Co. Limited, was made a party on the allegation that it had acquired an interest in the colliery property subsequent to the execution of the deed of dissolution of partnership, and defendant No. 1 Raja Kalyani Prosad Singh Deo was made a party because he was going to put a decree to execution which was likely to affect the charge of the plain-tiff prejudicially.
7. Various defences were taken in the Trial Court by various sets of defendants which need not be considered in detail here. The plaintiff relied on the deed of dissolution of partnership, dated 13-3-1948, for the success of her claim. She was not in a position to produce the original deed because it was stated to be lost or untraced. A certified copy of the deed was produced in the Trial Court in lieu of the original document.
The learned Subordinate Judge held 'upon the objection of some of the defendants that the original document was insufficiently stamped, and so the certified copy was not admissible in evidence for proving the plaintiff's claim, and in this view of the matter, the suit was dismissed by him. So the plaintiff has preferred this appeal.
8. The appeal is now being resisted by defendant No. 2, New Birbhum Coal Co. Ltd., and by the heirs of Asokemohan Sarkar who have entered appearance separately.
9. Mr. Das appearing on behalf of the appellant urged three contentions before us.
10. In the first place, Mr. Das contended that the document on which the plaintiff's claim was founded was in substance and effect an agreement for dissolution of partnership business, and so under Article 46 of Schedule I of the Stamp Act the proper stamp duty payable on it was Rs. 10/- in West Bengal. The certified copy of the deed shows that the original was drawn up in two stamp papers of the value of Rs. 10/- each.
The above contention of Mr. Das cannot be accepted, because on an examination of the deed of dissolution I find that it is not simply a deed for dissolution of a partnership business. It is a composite instrument comprising two distinct matters one matter being the dissolution of a partnership business and the other matter being an obligation entered into by Anandamoyee to pay Rs. 10,000/- to the plaintiff for which she kept her colliery property under charge. This latter element invests the deed with the character of a bond as defined in Section 2(5)(a) of the Stamp Act. The definition runs as follows :
' bond includes,
'a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be
(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another........'
There can, therefore, be no doubt that the document under consideration was both an agreement for dissolution of a partnership and a bond, and so under Section 5 of the Stamp Act it was chargeable with an aggregate of the duties with which two such separate instruments would be chargeable. As a bond the amount of duty payable upon the instrument was Rs. 75/- under Article 15 of Schedule I of the Stamp Act, As the total duty paid was Rs. 20/- only there can be no question that the original document was insufficiently stamped, and so the first contention urged on behalf of the appellant by Mr. Das must fail.
11. The second contention put forth on behalf of the appellant was that the certified copy having once been admitted in evidence by the Trial Court and marked as an exhibit, its admissibility cannot now be questioned at the appellate stage in view of the provisions of Section 36 of the Stamp Act. This contention is equally without any substance because Section 36 of the Stamp Act applies only to original documents and not to certified copies.
This is the view taken by their Lordships of the - Judicial Committee in the Privy Council case reported in -- 'Raja of Bobbili v. Inuganti China Sitaramasami Garu', 4 Cal WN 117 (PC) (A). This was no doubt a decision under the old Stamp Act of 1879, but the decision mainly turns on the interpretation of Section 34 of that Act which substantially corresponded with Sections 35 and 36 of the present Act or 1899. The following observations may be pertinently quoted from the above judgment:
Accordingly, the only question arising for decision in this appeal is, whether the courts below were right in holding that the provisions made by the Act of 1879, for the case of deeds either unstamped, or insufficiently stamped, have 110 application, when the original deed, which ought to have been stamped or was insufficiently stamped has not been produced? That is a question which must depend upon the terms of the Statute itself.
Their Lordships are satisfied, by an examination of its clauses, that the construction of the Act of 1879, adopted by the Courts below is correct.'
12. Mr. Das on behalf of the appellant drew our attention to a case of the Rangoon High Court reported in -- 'Maung Bo Htoo v. Mam Ma Gyi', AIR 2927 Rang 109 (B). In that case an attempt was no doubt made to distinguish the Privy Council case on the ground that Section 36 of the present Stamp Act applied not only to original documents, but also to certified copies in the matter of admission by way of evidence. In my judgment, the Privy Council case has not been correctly interpreted in the Rangoon case.
In the Privy Council case an attempt was made by a party to offer secondary evidence of an insufficiently stamped deed of gift which was not produced, by tendering a draft of the original deed, and the Privy Council held after considering Section 34 of the old Act which practically corresponded to Sections 35 and 36 of the present Act that secondary evidence in such a case was not permissible.
This being the scope of the decision of the Privy Council case, I must say with great respect to the learned Judges of the Rangoon High Court that their interpretation of the above case is not correct and cannot, therefore, be accepted. Such a view of the Rangoon case has also been taken in another case reported in -- 'Bhagwan Das Lala Gangaram v. Amardas Shamdas', AIR 1938 Pesh 32 (C). I, therefore, hold that certified copite(sic) of original deeds do not come within the scop(sic) of Section 36 of the Stamp Act. This view is further warranted by the section itself which runs as follow: 'Where an instrument has been admitted (sic) evidence, such admission shall not, except as pr(sic) vided in Section 61, be called in question at any stag(sic) of the same suit or proceeding on the ground tha(sic) the instrument has not been duly stamped.'
13. It goes without saying that the question whether a document' has been 'duly stamped' or not can arise only with regard to an original deed and not its certified copy which does not required stamp as an instrument beyond the necessary fee(sic) for copying and certifying. The second contention urged by Mr. Das must also fail.
14. The last contention urged on behalf of the appellant was that in order to avoid hardship to the appellant effect might be given to the deed in question as a deed of dissolution of partnership, and the other part of the deed which required additional stamp duty might be excluded. This contention cannot be upheld because it is exactly on the other portion of the deed, viz., the bond portion that the claim of the plaintiff is based.
Unfortunate as the result may be, this prayer of the plaintiff-appellant cannot be allowed because the original document was insufficiently stamped and is not being produced for validation by payment of requisite stamp duty and penalty. The result is that the certified copy of the deed on which the suit is based becomes inadmissible in evidence, and I must hold that the Trial Court has rightly dismissed the suit of the plaintiff.
15. In the result, the appeal must fail. It is accordingly dismissed and the judgment and decree of the Trial Court are confirmed. In view of the circumstances of the case I direct that each set of contesting respondents, viz., defendant No. 2 and defendants Nos. 3(a) to 3(c), will get three gold mohurs as consolidated costs.
R.P. Mookerjee J.
16. I agree.