JUPUDI KESAVA RAO versus PULAVARTHI VENKATA SUBBARAO AND OTHERS.

Citation: [1971] 3 S.C.R. 590 · Decided: 29-01-1971 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

590 
JUPUDI KESAVA RAO 
v. 
PULAVARTHI VENKATA SUBBARAO AND OTHERS. 
January 29, 1971 
[G. K. MITTER AND A. N. RAY, JJ.] 
Stamp Acl• (2 of 1899)-Section 35, 
36-Evldence-Reception of 
secondary evidence Of document insufficient:ly stamped-"Jnstrument" in 
ss. 35 and 36, if includes copy of document. 
On the question whether reception of secopdary evidence of a written 
agr~ement to grant a lease, insufficiently stamped, is barred by the provi-
sions of sections 35 and 36 G: the Stamp Act, 
HELD :the first limb of Section 35 clearly shuts out from evidence 
any instrument chargeable with duty unless it is duly stamped. The second 
liml> of !hq seC'tion which relates to acting upon the instrument will obvi-
ousl r 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 have the effect of 
the document being "acted upon" by the person having by law or authority 
to receive evidenee, Proviso (a) is applicable only when the original in-
stru!llent 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 
wbich enjoins upon the authority to receive nothing in evidence except the 
inst~ument itself. There is no scope for inclusion of a copy of a do-:ument 
as an instrument for the purpose of the Stamp Act. [596 DJ 
If Section 35 only deals with original instruments and not copies, sec-
tion 36 cannot be so interpreted so as to allow secondary evidence of an 
instrurrient to have its benefit. 
The words "an instrument" in Section 36 
must have. the same meaning as in Section 35. The legislature only re-
lented from the st'rict provisions of Section 35 .in cases where the original 
instrument was admitted in evidence without objection at the initial stage 
of a suit or proceeding. [596 HJ 
Stflle nf Bihar v. Karam Chand Thapar & Bros. Ltd. [1962J 1 S.C.R. 
827; Raja of Bobbili v. Inuganti China Sitaramaswami Garn, 23 Madras 
49, Thaiji Reebi v. Tirumalappa Pillai, 30 Madras 336 at 337 and Chidam-
baram v. Mayyappan, A.I.R. 1946 Madras 298, referred to. 
Observations in Maung Po Htoo and three v. Ma Ma Gyi and one, 
LL.R. 4 Rangoon 363 and Saf!/IG·vati v. Pal/ayya, AJ.R. 1937 Madras 431 
at 432, disapproved. 
A 
B 
c 
D 
E 
F 
G 
Ponnuswami v, Kailasar!1,,A.l.R. 1947 Madras 422, and A/imana 
Sahiba v. Subbarayudu, A.LR. 1932 Madras 69'3, explamed.. 
H 
CML APPELLATE JURISDICTION: Civil Appeals Nos. 2535 to 
2537 of 1966. 
A 
B 
c 
D 
E 
F 
G 
H 
J. K. RAO v. P. v. SUBBARAO (Mitter, J.) 
591 
Appeals by special \eave from the judgment and decree dated 
September 22, 1966 of the Andhra Pradesh High Court in Second 
Appeals Nos, 875 of 1961, 488 and 516 of 1962. 
A. K. Sen, A. V. Rangam and T. Raman, for the appellant 
(in all the appeals) : 
B. V. Subramanyam and B. Parthasarathy, for respondents 
"'los. 1 and 2 (in all the appeals). 
The Judgment of the Court was delivered by 
Mitter, J. The maip. question in these three appeals is, whe. 
ther reception of secondary evidence of a written agreement to 
grant a lease is barred by the provisions of ss. 3 5 and 3 6 of the 
Indian Stamp Act. 
· 
The relevant facts are as follows. 
There is a rice nlill in 
Bhimavaram, West Godavari Distrj.ct, which was formerly owned 
by the appellant along with respondents 3, 4 and 5. The mill was 
built on a site with an area of Ac. 1-75 by one K. N. Raju who 
had obtained a lease thereof from the guardian of respondents 1 
and·2. It was executed on 21st December 1941 and was to expire 
on 17th July 1956. The appellant and respondents 3, 4 and 5 
were successors-in-interest of the said leasehold rights. Respon-
dents 1 and 2 served notice of ejectment on the lessees to quit the 
site and deliver possession on the expiry of the said lease. 
According to the lessees there were negotiations for a new 
lease. 
Respondents 1 and 2 demanded enhanced rent and an 
agreement was ultimately arrived at on January 6, 1957 between 
the appellant and respondent No. 5 for themselves and on behalf 
of respondents 3 and 4 on the one hand and respondents 1 and 
2 on the other for grant of a new lease for a period of thfoty years 
commen

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