VIJAY versus UNION OF INDIA & ORS.

Citation: [2023] 15 S.C.R. 293 · Decided: 29-11-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 15 S.C.R. 293 : 2023 INSC 1030
293
CASE DETAILS
VIJAY
v. 
UNION OF INDIA & ORS.
(Civil Appeal No. 4910 of 2023) 
NOVEMBER 29, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: Whether the bar of admissibility created by 
s.35, Stamp Act 1899 applies to the agreement(s) to sell dtd. 04.02.1988 
executed by the parties; can a copy of a document be adduced as secondary 
evidence when the original instrument is not in possession of the party; and 
whether, in the facts of the present case, would the decision of this Court 
in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao be binding as held 
by both the Courts below?
Stamp Act, 1899 – s.35 – Applicability – Article 23 of Schedule 
1A of the Stamp Act – “conveyance” – Stamp (Madhya Pradesh 
Amendment) Act, 1989 – Stamp (Madhya Pradesh Second Amendment) 
Act, 1990 – Explanation added in Article 23 – Agreement to sell handing 
over possession prior to the amendment brought in the year 1989 or 
1990, if a conveyance so as to be covered u/Article 23 as existing on the 
date of execution of the agreement(s) – Further, the Explanation added 
vide M.P. Act 22 of 1990, if can be read retrospectively so as to apply 
to an agreement to sell executed on 04.02.1988:
Held: The causal amendment was brought in only in 1990, i.e., 
prior to the transaction in question – The amendments that create rights 
and obligations are generally prospective in nature – Clarifi cation or 
Explanation must not have the eff ect of imposing an unanticipated 
duty or depriving a party of an anticipated benefi t – 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 
294 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
application – Thus, it will not aff ect the agreement(s) executed prior to 
such amendments – Further, to impose the bar of admissibility provided 
u/s.35, the twin conditions required to be fulfi lled are instrument must 
be chargeable with duty and it is not duly stamped – If the documents 
sought to be admitted are not chargeable with duty, s.35 has no application 
– Thus, in the present case, since the document was dtd.04.02.1988, the 
instrument was not chargeable with duty – Thus, when such document(s) 
are not required to be stamped, then no bar could be imposed due to it 
being not duly stamped – Further, in the present case, the exact status of 
the documents in question could not be ascertained as one party claimed 
that the other had the said documents and the other party allegedly 
stated that it was with her counsel – However, as per records, the said 
documents could not be recovered from the said counsel – In such a 
situation, therefore, the presentation of secondary evidence could be 
allowed, if other requirements are complied with – Plaintiff ’s prayer 
for leading the secondary evidence ought to be allowed in so far as the 
documents sought to be introduced as secondary evidence be taken by 
the concerned Court and exhibited, with its admissibility being decided 
independently, in accordance with law under the Evidence Act – Also, 
Jupadi Kesava Rao is distinguishable on facts – Impugned order of the 
High Court set aside – Order passed by the Additional District Judge 
allowing the application of the Plaintiff  to fi le a copy of the agreement to 
sell, as secondary evidence, restored – Constitution of India – Entry 44 
of List III – Entry 63 of List II – Evidence Act, 1872 – ss.61, 63, 65(a) 
– Interpretation of Statutes. [Paras 25, 26, 36, 40, 44]
Stamp Act, 1899 – s.35 – Evidence Act, 1872 – ss.61, 63, 65 – 
Secondary evidence in proof of its contents forbidden – Plaintiff  and 
Defendant entered into an agreement to sell – Defendant denied the 
existence of the agreement – Plaintiff  fi led suit for specifi c performance 
of contract, moved an application to fi le a copy of the agreement to 
sell, among other documents, as secondary evidence – Plaintiff  claimed 
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 
affi  davit that the documents were not with her but with her counsel – 
Trial Court and the High Court relied on Jupadi Kesava Rao to hold 
295
that the Plaintiff s cannot lead secondary evidence as the document 
sought to be produced needed to be duly stamped:
Held: s.35 of the 

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