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.
