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Judgment
S.M. Abdul Wahab, J.—The learned councel for the applicants argued that Section 35 of the Indian Stamp Act is not applicable to an
instrument which is not at all stamped and it contemplates cases of partly stamped only.
Section 35 of the Indian Stamp Act reads as follows:
Instrument not duly stamped in admissible 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 such person or
by any public officer; unless such instrument is duly stamped.
The first part of Section 35 of the Stamp Act states that no instrument is admissible in evidence unless such instrument is duly stamped. A
document which is not stamped will also come under the definition of ''not duly stamped''. It cannot be construed to mean that duly stamped means
documents which have been partly stamped. When we come to the proviso (a) of Section 35, it provides for validation of instruments. The proviso
to Section 35 provides for the documents mentioned in the main section.
Sub-section (a) reads as follows: ""Any such instrument (not being an instrument chargeable with a duty not exceeding twenty paise only or a
mortgage of crop. Article 41 (a) of Schedule (1) chargeable u/s 3 with a duty of (fifty paise) or a bill of exchange or promissory note) shall, subject
to just exceptions, 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....
The aforesaid portion clearly indicates that instrument which are not duly stamped and which are not chargeable with duty not exceeding 25 paise
or the mortgage of crop chargeable u/s 3 or a bill of exchange or promissory note, shall be admitted in evidence. In the aforesaid portion,
instruments which cannot be admitted even under the proviso are mentioned. The next part of the proviso relates to instruments insufficiently
stamped of the amounts required to be paid by way of duty and penalty. It further states that if the duty payable on an unstamped document or a
deficit court fee of a document exceeds five rupees, the penalty shall be equally to ten times of the duty or portion.
In my view therefore there is no doubt that if an unstamped document is subsequently stamped with a duty along with penalty, it is admissible in
evidence.
The learned Councel for the petitioner relied upon a judgment reported in Yasodammal and Another Vs. Janaki Ammal, , where, if an
instrument not duly stamped is in possession of other party, the party appearing against such party can get a relief on the ground that he was not
able to validate the document by way of penalty.
The question as indicated above whether a person, who was not in possession of the instrument could validate the documents by way of penalty
when the document was with the other party. Such incapacity will enable the party to have the evidence admitted. In the above said decision, in
paragraph 297 this point has been made clear as follows:
Learned Counsel urged that the plaintiffs are wrong-doers and if the plaintiffs had produced the agreement of sale, even though unstamped his
client would have got the document admitted in evidence on payment of the requisite stamp duty and penalty, and a party who prevents the
aggrieved party from validating the transaction by payment of stamp duty and levy of penalty cannot take advantage of the fact that the documents
is unstamped.
Therefore in the said case, the question as we have now before us does not at all arise.
Therefore in my view the reading of the Section 35 of the Indian Stamp Act itself is clear that the document which is not duly stamped or not
stamped at all, can be validated.
Hence, the review application is dismissed, there will be no order as to costs.