Law Web: 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.

1. The issues that arise for consideration of this Court in the

present appeal are:

1.1 Whether the bar of admissibility created by Section 35

of the Indian Stamp Act 18991 applies to the

1 Hereinafter referred to as ‘Stamp Act’

agreement(s) to sell dated 04.02.1988 executed by the

parties?

1.2 Can a copy of a document be adduced as secondary

evidence when the original instrument is not in

possession of the party?

1.3 Whether, in the facts of the present case, would the

decision of this Court in Jupadi Kesava Rao v.

Pulavarthi Venkata Subha Rao2 be binding as held by

both the Courts below?

FACTUAL MATRIX

2. Plaintiff and Defendant entered into an agreement to sell on

04.02.1998, and pursuant to that, Plaintiff was allegedly put

in possession by Defendant. When Defendant denied the

existence of such an agreement, Plaintiff filed a suit for

specific performance of contract. In the said suit, Plaintiff

moved an application to file a copy of the agreement to sell,

among other documents, as secondary evidence.

2 (1971) 1 SCC 545 (2-Judge Bench)

3. Initially, the said application was allowed by the 4th

Additional District Judge vide order dated 17.07.2001. But

when Defendant sought review of this order, the Court vide

its order dated 16.12.2003 reviewed it and held that

secondary evidence of an agreement to sell could not be

allowed as it was not executed on a proper stamp, thus

barred under section 35 of the Stamp Act. While holding so,

it relied on the decision of this Court in Jupadi Kesava Rao

(supra).

4. Subsequently, the Plaintiff filed a writ petition before the High

Court of Madhya Pradesh challenging the review order and

the constitutional validity of Section 35 of the Stamp Act. The

High Court, vide the impugned order dated 30.11.2009 in

W.P. No. 741/2004, upheld the validity of the said section

and the order of the Review Court.

5. The present appeal is preferred against this order of the High

Court.

6. Learned Senior Counsel Dr. Menaka Guruswamy, for the

Appellant-Plaintiff, submits that the prohibition of Section 35

of the Stamp Act is not applicable as there was no

requirement for either party to have paid stamp duty at the

time of execution (before the 1989 Amendment) of the

agreement to sell. Thus, the Plaintiff ought to have been

permitted to lead a copy of the agreement to sell as secondary

evidence under Section 65 of the Evidence Act.

7. Respondent no.2/Defendant, in its counter affidavit, has

stated that a copy of an original document that is unstamped

or deficiently stamped can neither be impounded nor

validated or admitted as secondary evidence. Once the

original document is inadmissible under the Stamp Act, the

photocopy or any other copy cannot be allowed as secondary

evidence.

ISSUE 1

8. To adjudicate this issue, it is pertinent to reproduce Section

35 of the Stamp Act:

"Section 35- Instruments not duly stamped inadmissible in

evidence, etc. - 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 instruments are duly stamped:

Provided that-

(a) any such instrument (shall] be admitted in evidence on

payment of the duty with which the same is chargeable or, in the

case of an instrument insufficiently stamped, of the amount

required to make up such duty, together with a penalty of five

rupees, or, when ten times the amount of the proper duty or

deficient portion thereof exceeds five rupees, of a sum equal to ten

times such duty or portion;

xxxx”

9. It is evident from a bare perusal of the section that it prohibits

admission in evidence of instruments that are chargeable

with duty unless they are "duly stamped." Duly stamped as

defined under Section 2(11) of the Stamp Act means that the

instrument bears a stamp and that such stamp has been

affixed or used in accordance with law for the time being in

force in India.

10. Further, it is required to consider when the document

becomes chargeable with duty—during its execution or when

it is produced before the Court.

11. The word 'chargeable,' as defined under Section 2(6),

means chargeable under the Act in force at the date of the

execution of the instrument. The crucial date which

determines the law in force is the date of execution of the

instrument, and the stamp duty is to be charged with

reference to the date of execution. For stamp duty, the

relevant date is the date of execution and not the date of

adjudication or the date of presentation and registration of

the document.

12. Entry 44 of List III of the Constitution of India is Stamp

duties other than duties or fees collected by means of judicial

stamps, but not including rates of stamp duty. Under Entry

44 of List III, the power to levy stamp duty on all documents

is concurrent. But the power to prescribe “the rate” of such

levy is with the Parliament and subjected to the same with

the State Legislature. The State Legislature is competent to

levy the stamp duty under Entry 44 of List III and prescribe

rates of duty under Entry 63 of List II.

13. However, if the instrument falls under the categories

mentioned in Entry 91 of List I, the power to prescribe the

rate would be only with the Parliament, and for all other

instruments or documents, such power would be with the

State legislature under Entry 63 of List II.

14. Instruments chargeable with duty is defined under

Section 3 of the Act, which denotes that every instrument

mentioned in the Schedule, subject to exceptions or

exemptions, shall be chargeable with duty of the amount

which is indicated in that Schedule as the proper duty

thereof. From time to time, amendments have been carried

out in the Stamp Act, and Schedule I-A, as applicable to the

7-Civil Appeal No. 4910 of 2023

State of Madhya Pradesh, was inserted.3 This Schedule

specifies the stamp duty that must be paid on specific

instruments. Importantly, instruments not mentioned in the

Schedule are not subject to duty.

15. Article 23 of Schedule 1A of the Stamp Act deals with

conveyances. The definition of “conveyance” is contained in

Section 2(10) of the Stamp Act which reads as under:

“(10) ‘Conveyance.'—'Conveyance' includes a

conveyance on sale and every instrument by which

property, whether movable or immovable, is transferred

inter vivos and which is not otherwise specifically provided

for by Schedule I;”

At the time of execution of an agreement to sell (1988),

the conveyance was subjected to stamp duty and Article 23

stood as:

“23. Conveyance, not being a transfer charges or exempted

under Article No.62: Where market of the property which is

the subject matter of conveyancedoes

not exceed Rs. 50 Four percent of such market

value subject to a minimum of

One Rupee

does not exceed Rs.

10,000

Seven percent of such market

value

exceed Rs. 10,000 Seven and half percent of such

market value.

Provided that if the total

amount of the duty payable is

not a multiple of fifty paisa it

3 The Central Provinces and Berar Indian Stamp (Amendment) Act, 1939

8-Civil Appeal No. 4910 of 2023

shall be rounded off to the

nearest rupee half of a rupee or

over being counted as one

rupee and less than half a

rupee being disregarded.”

16. Article 23 was substituted vide M.P. Amendment Act No.

19 of 19894 and stood as:

“Article 23. Conveyance,

not being a transfer

charged or exempted

under No.62 irrespective of

the market value of the

property which is the

subject matter of

conveyance

Seven and half percent of

such market value:

Provided that if the total

amount of the duty payable is

not a multiple of fifty paise,

nearest rupee half of a rupee

or over being counted as one

rupee and less than half of a

rupee being disregarded.

Exemptions

xxx”

17. Further, an Explanation was inserted into this Article

vide M.P. Amendment Act No. 22 of 19905,

"Explanation.- For the purpose of this Article, where in the

case of agreement to sell immovable property, the possession

of any immovable property is transferred to the purchaser

before execution or after execution of such agreement

without executing the conveyance in respect thereof, then

such agreement to sell shall be deemed to be a conveyance

and stamp duty thereon shall be levied accordingly:

xxx”

4 The Indian Stamp (Madhya Pradesh Amendment) Act, 1989

5 The Indian Stamp (Madhya Pradesh Second Amendme

nt) Act, 1990

9-Civil Appeal No. 4910 of 2023

18. The sub-issue that the Court is confronting is whether

an agreement to sell, handing over possession prior to the

amendment brought in the year 1989 or 1990, is a

conveyance so as to be covered under Article 23 as existing

on the date of execution of the agreement(s). On this aspect

we may only observe that the causal amendment was brought

in only in 1990, i.e., prior to the transaction in question. And

a three-judge Bench of this Court in Suraj Lamp and

Industries Pvt. Ltd. v. State of Haryana6 in considering the

scope of an agreement to sell observed thus:

“18. It is thus clear that a transfer of immovable property by

way of sale can only be by a deed of conveyance (sale deed).

In the absence of a deed of conveyance (duly stamped and

registered as required by law), no right, title, or interest in an

immovable property can be transferred.

19. Any contract of sale (agreement to sell) which is not a

registered deed of conveyance (deed of sale) would fall short

of the requirements of Sections 54 and 55 of the T.P. Act and

will not confer any title nor transfer any interest in an

immovable property (except to the limited right granted

under Section 53-A of the T.P. Act). According to the T.P. Act,

an agreement of sale, whether with possession or without

possession, is not a conveyance. Section 54 of the T.P. Act

enacts that sale of immovable property can be made only by

a registered instrument and an agreement of sale does not

create any interest or charge on its subject-matter.”

(Emphasis supplied)

6 (2012) 1 SCC 656

10-Civil Appeal No. 4910 of 2023

19. The decision stand considered in G.T. Girish v. Y.

Subba Raju7, and relied upon in Ghanshyam Sarda v. J.K.

Jute Mills Co. Ltd.8, without any change. This principle was

recently restated in Munishamappa v M.Rama Reddy &

Ors.9

20. It be observed that now, in many states, amendments

were brought in whereby agreements of sale acknowledging

delivery of possession are charged with the same duty as

leviable on conveyance.

21. Now the question arises if we can retrospectively read

the Explanation added vide M.P. Act 22 of 1990 so as to apply

to an agreement to sell executed on 04.02.1988.

22. A Two-Judge bench of this Court10 while culling out the

principles on the role of a clarification/explanation to a

statute and how the same is identified and distinguished

from a substantive amendment, observed that only because

a provision is described as a clarification or explanation, the

Court is not bound by the said statement, but must analyze

the nature of the amendment so as to conclude whether it is,

7 (2022) 12 SCC 321

8 (2017) 1 SCC 599

9 Civil Appeal No. 10327 Of 2011

10 2023 SCC OnLine SC 640

11-Civil Appeal No. 4910 of 2023

indeed, a clarificatory or declaratory provision or whether it

is a substantive amendment which is intended to change the

law and which would apply prospectively.

23. The mere description of a provision as an "Explanation

" or "clarification" does not determine its actual effect. On

this aspect, this Court in Virtual Soft Systems Ltd. vs.

Commissioner of Income Tax, Delhi11 observed as follows:

“Even if the statute does contain a statement to the effect

that the amendment is declaratory or clarificatory, that is

not the end of the matter. The Court will not regard itself

as being bound by the said statement in the statute itself,

but will proceed to analyse the nature of the amendment

and then conclude whether it is in reality a clarificatory or

declaratory provision or whether it is an amendment which

is intended to change the law and which applies to future

periods.”

24. In Govind Das v. ITO12, this Court has observed that:

“11. Now it is a well-settled rule of interpretation hallowed

by time and sanctified by judicial decisions that, unless

the terms of a statute expressly so provide or necessarily

require it, retrospective operation should not be given to a

statute so as to take away or impair an existing right or

create a new obligation or impose a new liability otherwise

than as regards matters of procedure. The general rule, as

stated by Halsbury in Vol. 36 of the Laws of England (3rd

Edn.) and reiterated in several decisions of this Court as

well as English courts, is that

“all statutes other than those which are merely declaratory

or which relate only to matters of procedure or of evidence

are prima facie prospective”

11 (2007) 9 SCC 665

12 (1976) 1 SCC 906

12-Civil Appeal No. 4910 of 2023

and If the enactment is expressed in language which is fairly

capable of either interpretation, it ought to be construed as

prospective only.”

(Emphasis supplied)

25. A Constitution Bench of this Court in CIT v. Vatika

Township (P) Ltd.13 reiterated this principle that the

amendments that create rights and obligations are generally

prospective in nature. It is a well-established principle of law

that clarification or Explanation must not have the effect of

imposing an unanticipated duty or depriving a party of an

anticipated benefit.

26. Hence, in our considered view, the Explanation inserted

in Article 23 of Schedule I-A contained in the Act creates a

new obligation for the party and, therefore, cannot be given

retrospective application. Thus, it will not affect the

agreement(s) executed prior to such amendments.

27. The object of the Stamp Act is to collect proper stamp

duty on an instrument or conveyance on which such stamp

duty is payable. Section 35 is a provision to cater for the

instruments not being properly stamped and, as such, not

being admissible in evidence. A document not duly stamped

13 (2015) 1 SCC 1

13-Civil Appeal No. 4910 of 2023

cannot be admitted for any purposes. To impose the bar of

admissibility provided under this section, the following twin

conditions are required to be fulfilled:

(i) Instrument must be chargeable with duty;

(ii) It is not duly stamped.

28. If the documents sought to be admitted are not

chargeable with duty, Section 35 has no application. Thus,

in the present case, since the document was dated

04.02.1988, the instrument was not chargeable with duty. It

follows therefrom that when such document(s) are not

required to be stamped, then no bar could be imposed due to

it being not duly stamped.

ISSUE II & III

29. Plaintiff claims in the application that after executing

the document, Defendant kept the original copy, and a

photocopy of the same was given to Plaintiff. However, as per

the averments made in the application, the Defendant had

stated in an affidavit that the documents were not with her

but with her counsel.

14-Civil Appeal No. 4910 of 2023

30. Before proceeding with the discussion, it is imperative to

reproduce the relevant provisions of the Evidence Act and discuss

the law relating to secondary evidence:

"Section 61- Proof of contents of documents- The

contents of documents may be proved either by primary

or by secondary evidence.

Section 63-Secondary evidence.-Secondary evidence

means and includes-

(1) certified copies given under the provisions

hereinafter contained;

(2) copies made from the original by mechanical

processes which in themselves insure the accuracy of

the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties

who did not execute them; (5) oral accounts of the

contents of a document given by some person who has

himself seen it.

Section 65- Cases in which secondary evidence relating

to documents may be given.-Secondary evidence may

be given of the existence, condition, or contents of

a document in the following cases-

(a) When the original is shown or appears to be in

the possession or powerof

the person against whom the document is sought

to be proved, or of any person out of reach of, or not

subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66,

such a person does not produce it;

(b) when the existence, condition or contents of the

original have been proved to be admitted in writing by

the person against whom it is proved or by his

representative in interest;

the party offering evidence of its contents cannot, for

any other reason not arising from his own default or

neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be

easily movable;

(e) when the original is a public document within the

meaning of Section 74;

(f) when the original is a document of which a certified

copy is permitted by this Act, or by any other law in

force in 91[India], to be given in evidence;92

(g) when the originals consist of numerous accounts or

other documents which cannot conveniently be

examined in Court, and the fact to be proved is the

general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the

contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but

no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general

result of the documents by any person who has

examined them, and who is skilled in the examination

of such documents."

31. Primary and Secondary Evidence stands explained by a

Constitutional Bench of this Court in Cement Corpn. of India

Ltd. v. Purya,14 (5-Judge Bench) as the former being evidence

that the law requires to be given first, the latter being evidence

that may be given in the absence of that original evidence when a

proper explanation of its absence has been given. The terms

"primary and secondary evidence" apply to the kinds of proof that

may be given to the contents of a document, irrespective of the

purpose for which such contents, when proved, may be received.

32. Section 63 of the Evidence Act gives an exhaustive definition

declaring that secondary evidence "means and includes" the five

kinds of evidence mentioned therein. Section 65 of the Evidence

14 (2004) 8 SCC 270

Act allows secondary evidence to be given of the existence,

condition, or contents of documents under the circumstances

therein mentioned. It provides for the circumstances in which

secondary evidence can be used when the original document is

unavailable or inaccessible. It is imperative to adhere to the

principles outlined in these sections, including the proper

documentation and authentication, to successfully produce

secondary evidence in legal proceedings.

33. After perusing various judgments of this Court, we can

deduce the following principles relevant for examining the

admissibility of secondary evidence:

33.1 Law requires the best evidence to be given first, that is,

primary evidence. {Neeraj Dutta v. State (NCT of Delhi) (5-Judge Bench) (2023) 4 SCC 731; Yashoda v. K.

Shobha Rani (2-Judge Bench) (2007) 5 SCC 730}

33.2 Section 63 of the Evidence Act provides a list of the

kinds of documents that can be produced as secondary

evidence, which is admissible only in the absence of

primary evidence.{ Yashoda (supra)}

33.3 If the original document is available, it has to be

produced and proved in the manner prescribed for

primary evidence. So long as the best evidence is within

the possession or can be produced or can be reached,

no inferior proof could be given.{ Yashoda (supra)}

33.4 A party must endeavor to adduce primary evidence of

the contents, and only in exceptional cases will

secondary evidence be admissible. The exceptions are

designed to provide relief when a party is genuinely

unable to produce the original through no fault of that

party.{ M. Chandra v. M. Thangamuthu (2-Judges Bench) (2010) 9 SCC 712}

33.5 When the non-availability of a document is sufficiently

and properly explained, then the secondary evidence

can be allowed.{ Neeraj Dutta (supra)}

33.6 Secondary evidence could be given when the party

cannot produce the original document for any reason

not arising from his default or neglect.{ Surendra Krishna Roy v. Muhammad Syed Ali Matwali Mirza 1935 SCC OnLine PC 56}

33.7 When the copies are produced in the absence of the

original document, they become good secondary

evidence. Still, there must be foundational evidence that

the alleged copy is a true copy of the original. {H. Siddiqui v. A. Ramalingam, (2-Judge Bench) (2011) 4 SCC 240}

33.8 Before producing secondary evidence of the contents of

a document, the non-production of the original must be

accounted for in a manner that can bring it within one

or other of the cases provided for in the section.{ H. Siddiqui v. A. Ramalingam (2-Judges Bench) (2011) 4 SCC 240}.

33.9 Mere production and marking of a document as an

exhibit by the Court cannot be held to be due proof of

its contents.{ Neeraj Dutta (supra)}. It has to be proved in accordance with the

law.{H. Siddiqui (supra)}

34. A reading of Section 65(a) of the Evidence Act displays

the following:

a. Secondary evidence can be presented as a substitute

when the original document/ primary evidence is in the

possession of the opposing party or held by a third party;

b. Such a person refuses to produce the document even

after due notice,

c. It must be ensured that the alleged copy is a true copy of

the original.

35. Applying the constituents of Section 65 (a) of the

Evidence Act to the present facts, in reference to the

averments made, we find that the exact status of the

documents in question could not be ascertained as one party

claims that the other has the said documents and the other

has allegedly stated that it was with her counsel. However,

the said documents could not be recovered from the said

counsel, as per records. In such a situation, therefore, the

presentation of secondary evidence could be allowed, if other

requirements are complied with.

36. We may now consider Section 35 of the Stamp Act which