Whether copy of document can be impounded by court?

Family - Wills and Probates - Grant of succession certificate - Validity of partition deed - Determination there of - Application under Section 276 of the Indian Succession Act, 1925 was made requesting grant of probate - Trial Court did not determine questions of ownership of or title - Hence the appeal - Whether the Trial Court was required to decide on the regard to the validity of the partition deed in a probate application - Held, Court dealing with issue of grant of succession certificate, is not required to decide ownership or title to the property. Validity of partition deed is not required to be decided by Trial Court. Partition deed fell under category of documents which were to be compulsorily registered under Section 17(1)(b) Registration Act, 1908. Non-registration would not be received as evidence of any transaction affecting such property or conferring such power. Only such documents which were sufficiently stamped and registered was admissible in evidence. SC in Hariom Agrawal v. Prakash Chand Malviya, observed that impounding for payment of stamp duty and penalty are related only to instrument and not copy of the document as under Section 33 of Bombay Stamp Act, 1958. Photocopy of document cannot be termed as instrument under Section 2(14) of Indian Stamp Act, 1899 or Section 2(l) of Bombay Stamp Act, 1958. Trial Court rightly turned down request of Petitioner. Determination of question relating to entitlement of deceased to property was of a secondary character. Trial Court was justified in rejecting application tendered by Petitioner. No interference required. Civil Revision Application dismissed.

Bombay High Court

Gayabai Hemlal Jadhav vs 2 Sow Sayabai Latkan Jadhav on 5 May, 2011

Bench: R. M. Borde

Citation: 2011(4)ALLMR249, 2011(6)BomCR412, 2011(113)BOMLR1972, 2011(4)MhLj798

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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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