Bombay HC: Unstamped Agreement Cannot Be Basis For Granting Temporary Injunction Even If Its Execution Is Accepted By Defendant

 The Hon'ble Supreme Court of India in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in MANU/SC/8502/2008 : 2009 AIR SCW 97, observed that where possession of property has been transferred under any instrument, in absence of payment of stamp duty, such instrument cannot be admitted even for collateral purpose or to corroborate oral evidence. There is total and absolute bar as to admission of unstamped instrument, unless there is compliance with requirements of provisos to Section 35. {Para 17}

18. In this background, if unstamped instrument is admitted even for collateral purpose, it would amount to receiving such document in evidence for a purpose which is prohibited under Section 35 of Stamp Act. The bar against admissibility of instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of purpose, be it for main or collateral purpose, unless requirements of proviso (A) to Section 35 are complied with.

19. The similar issue was considered by High Court of Karnataka in case of Smt. Dyavamma Alias Sanna Mukkamma Vs. Smt. Balamma and Others reported in MANU/KA/0842/2010 : ILR 2010 KAR 3280, that instruments which are not duly stamped are not only inadmissible in evidence, but the Court cannot act upon it, or consider the same for any relief like temporary injunction till such time both duty and penalty are paid. In case of Yellapu Uma Maheswari & Another Vs. Buddha Jagadheeswararao & Others reported in MANU/SC/1141/2015 : 2015:INSC:755 : (2015) 16 SCC 787, the Hon'ble Supreme Court observed that if party wanted to rely upon document for collateral purpose, it was upon for him to pay stamp duty together with penalty and get document impounded.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 13409 of 2023

Decided On: 29.07.2025

Salim Baig Vs. Sayyad Nawid

Hon'ble Judges/Coram:

S.G. Chapalgaonkar, J.

Citation: 2025:BHC-AUG:19926, MANU/MH/4610/2025

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Whether the court should admit copy of unstamped document as secondary evidence?

 We may now consider Section 35 of the Stamp Act which

forbids the letting of secondary evidence in proof of its

contents. The section excludes both the original instrument

and secondary evidence of its contents if it needs to be

stamped or sufficiently stamped. This bar as to the

admissibility of documents is absolute. Where a document

cannot be received in evidence on the ground that it is not

duly stamped, the secondary evidence thereof is equally

inadmissible in evidence. {Para 36}

37. In relation to secondary evidence of

unstamped/insufficiently stamped documents, the position

has been succinctly explained by this Court in Jupudi

Kesava Rao (supra) wherein it dealt with an issue, i.e.,

whether reception of secondary evidence of a written

agreement to grant a lease is barred by the provisions of

Sections 35 and 36 of the Stamp Act and answered it in

affirmative. It observed:

"12. The Indian Evidence Act, however, does not purport to deal

with the admissibility of documents in evidence which require to

be stamped under the provisions of the Indian Stamp Act.

13. The first limb of Section 35 clearly shuts out from evidence any

instrument chargeable with duty unless it is duly stamped. The

second limb of it which relates to acting upon the instrument will

obviously shut out any secondary evidence of such instrument, for

allowing such evidence to be let in when the original admittedly

chargeable with duty was not stamped or insufficiently stamped,

would be tantamount to the document being acted upon by the

person having by law or authority to receive evidence. Proviso (a)

is only applicable when the original instrument is actually before

the Court of law and the deficiency in stamp with penalty is paid

by the party seeking to rely upon the document. Clearly secondary

evidence either by way of oral evidence of the contents of the

unstamped document or the copy of it covered by Section 63 of the

Indian Evidence Act would not fulfil the requirements of the

proviso which enjoins upon the authority to receive nothing in

evidence except the instrument itself. Section 25 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 the 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.”

(Emphasis supplied)

38. This Court, in Hariom Agrawal v. Prakash Chand

Malviya25, reiterated the principle laid down in Judupi

Kesava Rao (supra) and observed that:

“10. It is clear from the decisions of this Court and a plain

reading of Sections 33, 35 and 2(14) of the Act that an

instrument which is not duly stamped can be impounded

and when the required fee and penalty has been paid for such

instrument it can be taken in evidence under Section 35 of

the Stamp Act. Sections 33 or 35 are not concerned with any

copy of the instrument and party can only be allowed to rely

on the document which is an instrument within the meaning

of Section 2(14). There is no scope for the inclusion of the

copy of the document for the purposes of the Stamp Act. Law

is now no doubt well settled that copy of the instrument

cannot be validated by impounding and this cannot be

admitted as secondary evidence under the Stamp Act, 1899.”

39. Thus, if a document that is required to be stamped is not

sufficiently stamped, then the position of law is well settled

that a copy of such document as secondary evidence cannot

be adduced. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4910 OF 2023

VIJAY Vs UNION OF INDIA & ORS. 

Author: SANJAY KAROL J.

 Citation: 2023 INSC 1030.

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Whether court can direct impounding of document even though it is exhibited?

It appears to me that the same course was liable to be adopted in the present matter also. It appears that the Trial Court failed in appreciating and understanding the object of Section 33 of the Stamp Act. The object of this Section is to safeguard the revenue. As has been held by this Court in the aforesaid Judgment, Section 35 of the Stamp Act only gives finality to the decision in regard to the admissibility of the said document in evidence, it however does not operate as a bar for impounding of the said document. The Trial Court in the impugned order has observed that filing of an application by the present petitioner for impounding of document in question was only with the intention to protract the trial. If that be so, the Trial Court could have taken appropriate care in that regard also. There was no impediment to forward the original document to the Collector to impound the same by keeping on record the attested or certified copy of the document in question. It need not be stated that the Trial Court may not be required to wait for the decision of the Collector on the issue of impounding and can very well proceed further with the trial of the Suit. Since the agreement of sale dated 04.05.2009 has been admitted in the evidence, it would not be open for the present petitioner to call in question such admission at any stage of the Suit or proceeding on the ground that it has not been duly stamped.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 2810 of 2019

Decided On: 29.04.2019

 Priya Vs. Parushuram Printers and Ors.

Hon'ble Judges/Coram:

P.R. Bora, J.

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Whether government is liable to pay stamp duty on documents executed in its behalf?

Section 3 in The Indian Stamp Act, 1899

3. Instruments chargeable with duty.—Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say—

(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in ²⁰ [India] on or after the first day of July, 1899;

(b) every bill of exchange ²¹ [payable otherwise than on demand] ²² [***] or promissory note drawn or made out of ²⁰ [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in ²⁰ [India]; and

(c) every instrument (other than a bill exchange ²² [***] or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of ²⁰ [India] on or after that day relates to any property situate, or to any matter or thing done or to be done, in ²⁰[India] and is received in ²⁰ [India]: Provided that no duty shall be chargeable in respect of—

(1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;

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Whether document which is not duly stamped can be used for collateral purpose?

Having regard to Section 35 of Stamp Act, unless the stamp duty
and penalty due in respect of the instrument is paid, the court cannot act
upon the instrument, which means that it cannot act upon the arbitration
agreement also which is part of the instrument. Section 35 of Stamp Act is
distinct and different from Section 49 of Registration Act in regard to an
unregistered document. Section 35 of Stamp Act, does not contain a
proviso like to Section 49 of Registration Act enabling the instrument to
be used to establish a collateral transaction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPEAL NO. 45 OF 2013
ALONGWITH
CIVIL APPLICATION NO. 41 OF 2013
IN
ARBITRATION APPEAL NO.45 OF 2013
DISTRICT : THANE

Shri Jayraj Devidas, Vs  Shri Nilesh Shantilal Tank, 

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 22nd AUGUST, 2014
Citation;2014(6) MHLJ 156

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Whether promissory note which is not duly stamped is admissible in evidence after its impounding?

Therefore, it follows from the
authoritative pronouncements of this Court and
also the High Court of Assam referred above,
"promissory note" which is payable otherwise than
on demand not duly stamped as required by
ScheduleI Article 49(b) of Indian Stamp Act,
1899, is inadmissible in evidence. Same cannot be
received in evidence even on payment of deficit
stamp duty and penalty. The defect that,
promissory note is not duly stamped or
inadequately stamped, cannot be cured in view of
the proviso (a) to Section 35 of the Indian Stamp
Act, 1899, as held by this Court in the case of
M/s. Wolstenholme International Ltd., (supra).
Therefore, this Court is of the opinion that, the
view taken by the Cooperative
Court, Nanded i.e.
trial Court, is the correct view.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9317 OF 2011

Shiva Sahakari Up Jal Sinchan Sanstha Ltd. Vs The Nanded District CentralCoop.

CORAM: S.S. SHINDE, J.

PRONOUNCED ON :25/07/2012

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Whether insufficiently stamped partition deed is admissible in evidence?

Civil - Admissibility of documents - Learned Civil Judge permitted Defendants to mark document as an exhibit on premise that said document was only a partition list and not a partition deed and, therefore it did not required any stamp duty or registration - Hence, this Petition - Held, document was both insufficiently stamped and unregistered - Defendants sought to produce and rely on disputed document not for any collateral purpose but for main purpose of proving their alleged title to suit property and thereby non-suit Plaintiffs - Therefore, document was inadmissible in evidence both in view of bar contained under Section 35 of Indian Stamp Act as being insufficiently stamped, and also in view of Section 49 of Registration Act -Thus, admission of document into evidence was held unsustainable and same was accordingly set aside - Petition allowed.

ALLAHABAD HIGH COURT
THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY          
Civil Revision Petition No.5375 of 2009

DATED:08-02-2010 

Pariti Suryakanthamma and another  V Saripalli Srinivasa Rao and another
Citation: 2010(2)ALD847, 2010(2)ALT648

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Whether limitation for execution of partition decree will not begin to run until decree is engrossed on stamp paper?

 Let us examine the matter from another perspective. Limitation Act has been engrafted in the Statute Book in the year 1963 and the Indian Stamp Act has been brought into existence by the British Parliament in 1899 though, however, the Government of India Adaptation of Indian Laws Order 1937, the Indian Independence Adaptation of Central Acts and Ordinance Order 1948 and the Adaptation of Laws Order 1950 allowed this fiscal statute to remain on the statute book. The legislature while engrafting 1963 Act, it is presumed and there being a golden canon of interpretation of statutes, that it had in its mind the existing Indian Stamp Act before engrafting the provisions under Article 136. A latter statute obviously will have the effect of nullifying an earlier statute in the event of there being any conflict provided however and in the even there is otherwise legislative competency in regard thereto. As regards the legislative competency, there cannot be any doubt which can stand focussed neither there is any difficulty in correlating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., "Instrument not duly stamped inadmissible in evidence etc." (emphasis supplied) itself denotes its sphere of applicability: it has no relation with the commencement of period of limitation. As noticed above 'executability' and 'enforceability' are two different concepts having two specific connotation in legal parlance. They cannot be termed as synonymous, as contended by Mr. Mani nor they can be attributed one and the same meaning. Significantly, the final partition decree, whenever it is drawn bears the date of the decree when the same was pronounced by Court and bit when it stands engrossed on a stamp paper and signed by the judge and this simple illustration takes out the main thrust of Mr. Mani's submission as regards the applicability of the Stamp Act viz-a-vis, the enforceability of the decree. The decree may not be received in evidence nor it can be acted upon but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. Limitation starts by reason of the statutory provisions as prescribed in the statute. time does not stop running at the instance of any individual unless, of course, the same has a statutory sanction being conditional as more fully noticed hereinbefore: the Special Bench decision of the Calcutta High Court in the case of Bholanath Karmakarand others v. Madanmohan Karmakar , in our view has completely misread and misapplied the law for the reasons noted above and thus cannot but be said to be not correctly decided and thus stands overruled. Undoubtedly, the judgment of the Calcutta High Court has been a very learned judgment but appreciation of the legislative intent has not been effected in a manner apposite to the intent rather had a quick shift therefrom by reason where for, the Special Bench came to a manifest error in recording that the period of limitation for execution of a partition decree shall not begin to run until the decree is engrossed on requisite stamp paper.

Supreme Court of India

Hameed Joharan (D) & Ors. vs Abdul Salam (D) By L.Rs. & Ors. on 13 August, 2001

Equivalent citations: AIR 2001 SC 3404, JT 2001 (6) SC 311, 2001 (5) SCALE 163

Bench: A Mishra, U C Banerjee

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Whether copy of instrument can be validated by impounding and can be admitted as secondary evidence?

3).The word "instrument" but not "document" is used in Sec.35 of the Indian 

Stamp Act. The "instrument" as defined in Sec.2(14) includes document. 

The definition is not Exhaustive. Section 63 of the Indian Evidence Act 

speaks for Secondary Evidence but not anything about Instrument. 

Secondary Instrument is unknown to law. Impounding can be made in 

respect of Instrument, but not copy thereof. Procedure on impounding has 

been mentioned from Sec.35 to 40. So when the Original Instrument is not 

admissible in evidence, copy should not be admitted. Ref. may be made to 

Lal Khan Sultan Ahmad Allah Ditta AIR 1950 Lah, 150. Pr. 15 of its runs : " 

But Anr. hurdle is placed in the latter's path by the fact that the original sale 

deeds were admittedly under stamped. In such circumstances, even 

secondary evidence would be barred. " 

8. It is clear from the decisions of this Court and a plain reading of Sections 

33, 35 and 2(14) of the Act that an instrument which is not duly stamped 

can be impounded and when the required fee and penalty has been paid 

for such instrument it can be taken in evidence under Section 35 of the 

Stamp Act. Sections 33 or 35 are not concerned with any copy of the 

instrument and party can only be allowed to rely on the document which is 

an instrument within the meaning of Section 2(14). There is no scope for 

the inclusion of the copy of the document for the purposes of the Indian 

Stamp Act. Law is now no doubt well settled that copy of the instrument 

cannot be validated by impounding and this cannot be admitted as 

secondary evidence under the Indian Stamp Act, 1899.

Supreme Court of India

Hariom Agrawal vs Prakash Chand Malviya on 8 October, 2007

Author: P Naolekar

Bench: B Agrawal, P Naolekar, P Sathasivam

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