Summary
The Supreme Court permitted the plaintiff to lead secondary evidence of an agreement whose original could not be recovered. The agreement predated the Madhya Pradesh amendment treating specified agreements as conveyances, so the Stamp Act’s bar against unstamped chargeable instruments did not apply. Exhibition of the copy remained subject to independent scrutiny of admissibility and proof under the Evidence Act.
Issues
- Whether Section 35 barred secondary evidence of an agreement that was not chargeable with the disputed stamp duty when executed.
- Whether the later amendment deeming certain agreements to be conveyances applied retrospectively.
- What foundation was required before a copy could be used as secondary evidence.
Provisions considered
- Sections 2(6), 2(10), 2(11) and 35, Indian Stamp Act, 1899Chargeability is assessed under the law applicable at execution. Section 35 bars an instrument chargeable with duty that is not duly stamped; the disputed agreement did not attract the later conveyance charge. (¶¶ 8–17, 27–28)
- Schedule I-A, Article 23, Explanation, Indian Stamp Act, 1899, as amended in Madhya PradeshThe amendment deeming specified agreements involving possession to be conveyances created a new liability and operated prospectively; it did not govern the earlier agreement. (¶ 16–26)
- Sections 61, 63 and 65, Indian Evidence Act, 1872Secondary evidence requires a proper explanation for absence of the original and a foundation establishing the copy’s reliability. Merely exhibiting a document does not prove its contents. (¶¶ 29–35, 42–43)
- Section 54, Transfer of Property Act, 1882An agreement for sale does not itself create an interest in or charge on property; the later statutory deeming provision could not be assumed to have applied earlier. (¶ 18–20)
Held
- The law in force when an instrument is executed determines its stamp liability. The later deeming amendment was substantive and could not retrospectively impose the disputed conveyance duty on this agreement. (¶¶ 10–11, 21–28)
- The restrictions recognised in Jupudi Kesava Rao and Hariom Agrawal concerning copies of chargeable but insufficiently stamped originals did not control this case, because the agreement was not chargeable with the disputed duty when executed. Those decisions were distinguished, not overruled. (¶ 36–43)
- The original was believed to be with the defendant or her counsel and had not been recovered. The plaintiff could seek to establish secondary evidence, subject to the statutory conditions and proof that the copy truly reproduced the original. (¶ 29–35)
- Permission to lead secondary evidence and exhibit the documents did not settle admissibility or prove their contents. The trial court was to decide those matters independently under the Evidence Act. (¶ 41–43)
Result
Appeal allowed. Review order dated 16 December 2003 and High Court order dated 30 November 2009 quashed; initial order dated 17 July 2001 permitting secondary evidence restored, subject to independent determination of admissibility. No costs.