Report No. 67
17.34. Recommendation to admit secondary evidence.-
Even an oral admission of the contents of the document by the defendant1 is not admissible2 if the instrument is not stamped, unless3 the admission is made for the purposes of the proceedings.4
In our view, this lacuna should be rectified.
1. Section 22, Evidence Act.
2. (a) ILR 1938 Mad 933 (954) (Varadachariar, J.).
(b) ILR 14 Born 102 (111).
(c) Theji Bi v. Tirumalappa, ILR 30 Mad 386.
3. ILR 1938 Mad 933 (954) (Varadachariar, J.).
4. Section 58, Evidence Act.
17.35. Recommendation-Omission of the word "naya".-
While on section 35, we may state that the word "naya" before the word "paisa" should now be omitted, having regard to current usage.
17.36. Section 35-Power to require security.-
It has been suggested1 with reference to section 35 that provision should be made to require deposit. It will, however, increase work, and we are not inclined to accept it.
1. S. No. 119 9Chandigarh Administration).
17.37. Under section 36, where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
17.38. Propositions laid down in case law.-
With reference to this section, courts have laid down a few propositions, of which the following are noteworthy:-
(1) When a court passes an order that the document does not require any stamp or is duty stamped, the order should be treated as final.1
(2) The section is mandatory. Once a document is admitted in evidence, rightly or wrongly, whether with or without objection from any party, it is not permissible to the court, whether it is a Court of appeal, revision or trial court, to reject it on the ground that it has not been duly stamped.2-4 Stamp matters are no concern of the parties, and if, notwithstanding an objection, the trial Court admits the document, the matter stops there, and the Court cannot subsequently order the deficiency to be made up and penalty paid or, on failure to do to, reject that document.5
(3) The section is not limited in its application to cases in which an instrument not duly stamped has been admitted in evidence by the trial court. The admission in evidence of an instrument by an appellate court is equally a bar to a subsequent objection to its admissibility.6
(4) The words "admitted in evidence" refer to the act of letting the document in as part of the evidence, either as a' result of judicial determination of the question whether it is admissible for want of stamp, or because no objection was taken to its admissibility.7-8
Once the Court, rightly or wrongly, decides to admit a document in evidence, then, so far as the parties are concerned, the matter is closed, and the admission cannot be called in question at any stage of the suit or proceeding on the ground that the instrument had not been duly stamped.9
(5) What section 36 prohibits is the calling in question at any stage of the admission of a document on the ground of its not being duly stamped.10-11
1. Hiralal v. Jagmohandas, AIR 1957 MP 206.
2. Ma Pwa May v. S.R.H.M.A. Chettiar (Finn), AIR 1929 PC 279 (281).
3. V.E.A. Annamalai Chettiar v. Veerappa Chettiar, AIR 1956 SC 12.
4. laver Chand v. Pukhraj Swann, AIR 1961 SC 1565 (1656), para. 4.
5. Lal Chand v. Dharam Chand, AIR 1655 MP 102.
6. Rasanji Bhagwanji v. Ram Shanker, AIR 1938 All 619.
7. (a) Ratan Lal v. Jandas, AIR 1954 Raj 173; (b) Lodi v. Zin-ul-haq, AIR 1939 All 588.
8. A.P. Sahib v. Sankalan Matudhavan, AIR 1957 Ker 105.
9. Ghasi Patra v. Brahma Tahasi, AIR 1962 Ori 35.
10. Ettuthara Warrier v. Rochunarayan Menon, AIR 1962 Ker 265.
11. Subhadri v. Varalakashmi, AIR 1962 AP 398.
17.39. Controversy as to "admitted in evidence."-
In a Rajasthan case,1 there was a difference of opinion about the interpretation of the words "admitted in evidence". The majority were of the view that a document can be said to be admitted in evidence only when it is formally proved and tendered in evidence. A mere finding that the document is admissible does not bring section 36 into operation. The High Court confirmed the view expressed on this point in an earlier Rajasthan case2
1. Nanga v. Dhannial, AIR 1962 Raj 68-78, para. 36 (FB).
2. Godhan Singh v. Sumer Lal, AIR 1959 Raj 156.
17.39A. The minority (Bhargava J.), however, took the view that once the duty is paid and document regarded as admissible section 36 should apply.
17.40. We are of the opinion that the majority view in the Rajasthan case is correct, and that there is no need to amend the section.