ORDER
Gopalakrishna Tamada, J.
1. This revision is directed against the order dated 16-03-2007 passed in I.A. No. 232 of 2007 in O.S. No. 42 of 2003 on the file of the Court of the IV Additional District Judge, Warangal, whereby the Court below permitted a xerox copy of the partition list to be adduced as a secondary evidence as provided for under Section 65 of the Indian Evidence Act, 1872 (for short, 'the Act').
2. Brief facts are that petitioner herein, who is none other than the father of the respondents herein, instituted the suit, O.S. No. 42 of 2003, seeking partition of the plaint schedule properties into four equal shares and put him in possession of his share. In the said suit, the stand of the defendants i.e., the respondents herein is that the suit schedule property was already partitioned and that during the course of partition, a list of partition was prepared by the elders on 19-12-1996 and the original was handed over to the father i.e., the petitioner herein and xerox copies alone were given to the respondents. Despite the fact that a notice under Section 66 of the Act was issued to the petitioner for production of the said document the same was not produced into Court. Hence, the second defendant i.e., the first respondent herein filed I.A. No. 232 of 2007, a petition under Section 65 of the Act, seeking permission to accept xerox copy by way of secondary evidence. The same was opposed by the petitioner herein stating that the original was never given to him and it is also further stated by him that the said document was described as an award by P.W.1 in his cross-examination and as such it requires to be stamped and as the same is not duly stamped it is inadmissible in evidence. It is also contended that no stamp duty can be collected on the xerox copy and as such the same cannot be allowed to be a part of the evidence. On a consideration of the entire material on record, the Court below allowed the said application holding that the said xerox copy could be admitted in evidence under Section 65 of the Act. As stated above, the said order is under challenge in this revision.
3. Sri Bankatlal Mandhani, learned Counsel for the petitioner mainly contended that a document, which requires stamp duty and is not properly stamped, is inadmissible in evidence. In this context, learned Counsel has drawn my attention to the provisions of Sections 35 and 36 of the Indian Stamp Act, 1899 (for short, 'the Stamp Act') and placed strong reliance on a judgment of the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subba Rao and Ors. : [1971]3SCR590 and also on a judgment of this Court in E. Venkat v. E. Yadgir : AIR1973AP398 .
4. Per contra, Sri Krishna Murthy, learned Counsel representing Sri K. Lakshmana Chary, learned Counsel for respondents, while opposing the said submissions has strenuously contended that there is absolutely no material on record to establish that the document in question is a partition deed and even otherwise as it is only a xerox copy, it is definitely admissible in evidence under Section 65 of the Act. Learned Counsel has also drawn my attention to a Digestive Notes of Other High Courts in Ashok Kumar v. Sukhvarsha Diwan AIR 2003 (3) ALT 18.3 (DN OHC) and also to an unreported judgment of this Court dated 03-02-2006 passed in C.R.P. No. 3991 of 2003.
5. In the light of the said controversy, it is apt to refer to Section 35 of the Stamp Act. Section 35 of the Stamp Act deals with instruments not duly stamped inadmissible in evidence etc. According to this section 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 executed (sic. acted) upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
6. The document, which the defendants are trying to place reliance is a past partition that effected in 1996. Instrument of partition is defined under Section 2(15) of the Stamp Act, according to which 'Instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition; and a memorandum regarding past partition. The expression 'memorandum regarding past partition' was inserted into Sub-section (15) of Section 2 of the Act by way of an amendment under A.P. Act 17 of 1986, with effect from 16-08-1986.
7. Even according to the respondents there was already a partition and during the course of partition a partition list was prepared by elders on 19-12-1996 and as they are not in possession of the original and are having only a xerox copy, they are pressing the same into service and requested the Court below to admit the same under Section 65 of the Act. As the document in question can be termed as past partition and the same is included in the definition 'instrument of partition', definitely it falls under the provisions of the Stamp Act. What is the stamp duty for 'instrument of partition' is dealt with under Article 40 of Schedule 1A appended to the Stamp Act. According to the said Article 3% is the stamp duty that is to be paid for an 'instrument of partition'. When the document sought to be relied upon is looked at it is clear that it is a deed of partition and the value as mentioned in the said deed of partition is Rs. 9,50,000/-, but the document in question was executed on stamps worth Rs. 185/-only.
8. From the above it is clear that the stamp duty that is to be paid is much higher than what has been paid. In the light of the said insufficiency, it is clear that the said document requires impounding and without the same it is inadmissible in evidence in view of the prohibition provided for under Section 35 of the Stamp Act. When once the original itself is inadmissible in evidence, the question of accepting a xerox copy of the same into evidence does not arise. Of course, there is force in the contention of learned Counsel for respondents, Mr. Krishna Murthy, that a xerox copy made from the original by mechanical processes, which in itself ensure the accuracy of the copy, and copies compared with such copies, and the same is admissible in view of Section 63 of the Act. There cannot be any dispute to the said provision of law. If the original of Ex.B-1, which is sought to be marked as an exhibit, is properly stamped, is admissible in evidence and it is not prohibited under Section 35 of the Stamp Act and the same can be accepted. But here is a case where the original itself is inadmissible for want of proper stamp duty and when once the original itself is inadmissible, the question of accepting a xerox copy of the same under Section 65 of the Act, does not arise. In this context, in fact the judgments referred to by the learned Counsel for petitioner in Jupudi Kesava Rao's case : [1971]3SCR590 and in E. Venkat's case : AIR1973AP398 would lend support.
9. In fact, in identical facts and circumstances, a Division Bench of this Court in E. Venkat's case : AIR1973AP398 held that when the original deed was unstamped or insufficiently stamped, no copy of it by way of secondary evidence is admissible in evidence in view of Section 35 of the Stamp Act. In Jupudi Kesava Rao's case : [1971]3SCR590 , their Lordships of the Supreme Court have observed as follows:
The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it, which relates to acting upon the instrument will obviously 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 be tantamount to the document being acted upon by the person having by law or authority to receive the evidence.
10. The judgments relied on by learned Counsel for respondents is about the leading of secondary evidence and as already discussed there is no dispute about the provision of law under Section 65 of the Act. Definitely a copy made by mechanical process is admissible under Section 65 of the Act, but here is a case as discussed supra, the document is an 'instrument of partition' as defined under Section 2(15) of the Stamp Act, which requires stamp duty as provided under Article 40 of Schedule 1-A appended to the Stamp Act. As the document in question is not properly stamped the same is not admissible in evidence either in the normal course or under Section 65 of the Act.
Accordingly, the civil revision petition is allowed and the order dated 16-03-2007 passed in I.A. No. 232 of 2007 in O.S. No. 42 of 2003 on the file of the Court of the IV Additional District Judge, Warangal, is set aside. No costs.