Thomas George v. V.V. Georgekutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **RSA.No.1286 OF 2008** **AGAINST THE DECREE & JUDGMENT IN AS 155/2006 DATED 30-09-2008 OF SUB COURT, PALA** **AGAINST THE DECREE & JUDGMENT IN OS 110/2005 OF MUNSIFF'S COURT, ERATTUPETTA** ## **APPELLANT/APPELLANT/DEFENDANT:** **THOMAS GEORGE, S/O GEORGE KALLIDUKKIL HOUSE, PERUNILAM KARA, POONJAR THEKKEKARA VILLAGE, CHENNADU P.O.** **BY ADV. SRI.S.SREEKUMAR (SR.)** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **V.V.GEORGEKUTTY, S/O VARKEY VETTUKUNNEL HOUSE, KALLEKULAM KARA, POONJAR, NEDUBHAGOM VILLAGE, MEENACHIL TALUK.** ## **BY ADV. SRI.P.C.HARIDAS** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.1286/2008 2 ## **CR** ## **JUDGMENT** Whether an unstamped document can be impounded under the provisions of the Kerala Stamp Act, 1959 and what would be the legal effect of Section 35 of the said Act, when it was admitted in evidence without any objection or rejecting any objection, are the questions came up for consideration in this appeal. 2. A suit for recovery of money was decreed by both the courts below, against which the defendant came up with this appeal. Ext.A5 is an unstamped document relied on by the plaintiff. It was accepted as a bond by the trial court and the first appellate court, after impounding the same and decreed the suit. 3. The High Court of Allahabad in **Chotey v. Girrj Kishore ( AIR 1926 All 359)** had taken the view that an unstamped document unless it is admissible under some other provisions of law, is mere waste paper for the purpose of judicial proceedings. But the High Court of Madras in **Subramanian Chettiar v. Revenue Divisional Officer, Devakottah ( AIR 1956 Mad. 454)** took a RSA No.1286/2008 3 slightly different view by holding that an unstamped or defectively stamped document is not void and it is effective from the date of its execution though it is incapable of being made use of as evidence until it is stamped properly. But in that decision, no distinction was drawn between an unstamped document and a defectively stamped document ( insufficiently stamped document. Further, the question whether an unstamped document can be impounded was not come up for consideration in that decision. 4. The Apex Court in **Avinash Kumar Chauhan v.** **Vijay Kumar Mishra ( AIR 2009 SC 1489 = 2009 (1) KHC** **635 = (2009) 2 SCC 532)** had laid down the legal position that a document not duly stamped unless impounded under Section 33 of the Indian Stamp Act, 1899 ( Central Act) shall be inadmissible in evidence by virtue of Section 35 of the said Act. Section 33 of the Indian Stamp Act, 1899 is pari materia with Section 33 of the Kerala Stamp Act, 1959. But in that decision what is considered was an instrument “not duly stamped” and not an “unstamped” instrument. 5. Section 33 of the Kerala Stamp Act, 1959 is RSA No.1286/2008 4 ## extracted below for reference: **33. Examination and impounding of instruments** .--(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed: Provided that - (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine— RSA No.1286/2008 5 (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices.” (emphasis supplied) 6. An unstamped document stands on a different pedestal from that of a defectively stamped or insufficiently stamped document. What is dealt with under Sections 33, 34 and 35 of the Kerala Stamp Act, 1959 is only with respect to a defectively stamped or insufficiently stamped document and not an unstamped document. In Sections 33, 34 and 35, the word 'unstamped' is conspicuously absent. The legislature had employed the word 'not duly stamped' with the precise intention not to extend the provision to an unstamped document. In Sub-section 2 to Section 33, an expansion is seen given to the expression 'not duly stamped' by explaining the real purpose for the examination of an instrument by a competent person. It is stated that the purpose is to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the state when such instrument was executed or first executed. RSA No.1286/2008 6 7. The definition given to the expression 'duly stamped' under Section 2 (11) of the Indian Stamp Act, 1899 which is pari materia with the definition given in Section 2 (e) of the Kerala Stamp Act, 1959 assumes importance, which is extracted below for reference : ## **Section 2(11) of (The Indian) Stamp Act, 1899** - “ duly stamped”, as applied to an instrument, means that the instrument bears a adhesive or impressed stamp of not less than the proper amount, and that such stamp has been affixed or used in accordance with the law for the time being in force in India.” (emphasis supplied) ## **Section 2(e) of The Kerala Stamp Act, 1959** :- “ duly stamped”, as applied to an instrument means that the instrument bears a adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the territories of the State of Kerala.” (emphasis supplied) 8. Both in the Central Act and in the State Act, the expression “duly stamped” defined as the instrument RSA No.1286/2008 7 bears an adhesive or impressed stamp of not less than the proper amount. Necessarily, the expression 'not duly stamped' should be understood as “an instrument bears an adhesive or impressed stamp of less than the proper amount” and not for an instrument having no adhesive stamp or impressed stamp. 9. But there is an exception to the general rule regarding impounding of documents governed by Sections 33 of the State Act which is pari materia with Section 33 of the Central Act, relating to document which would come under the purview of Section 18 of the State Act, which is pari materia with Section 18 of the Central Act. An unstamped document which was executed out of India other than a bill of exchange or promissory note may be stamped within three months after it has been first received in India. After the expiry of the three months' period, it can be impounded and the legal position was very much settled by the Apex Court in **Malaysian Airlines Systems Bhd v. M/s. Stic Travels (P) Ltd. ( AIR 2001 SC 358)** . But the said exception would come into play only when the document was executed outside India because of the reason that it is not RSA No.1286/2008 8 permissible to take any adhesive stamp or impressed stamp outside India for the purpose of any documentation. In short, an unstamped document except the document which would come under the purview of Section 18 of the Act cannot be impounded and it cannot be validated or admitted in evidence except for collateral purposes. The document which would come under the purview of Section 18 of the Act is really standing on a different pedestal apart from other documents required by law to be impounded. 10. Then comes the question what would be the legal impact when the document is admitted in evidence under Section 35 of the Kerala Stamp Act, 1959, which is pari materia with Section 36 of Central Act - The Indian Stamp Act, 1899. It has to be read along with Section 34 of the State Act, which is pari materia with Section 35 of the Central Act, wherein there is a prohibition to admit in evidence any instrument which is not duly stamped even with the consent of parties. Section 35 of the State Act is an exception to Section 34 therein. Likewise, Section 36 of the Central Act is an exception to Section 35 therein. Section 35 of the Kerala Stamp RSA No.1286/2008 9 Act, 1959 is extracted below for reference: “ 35. **Admission of instrument where not to** **be questioned** - Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 59, be called in question at any stage of the same suit or proceeding on the ground that the instrument has ” not been duly stamped. (emphasis supplied) 11. An instrument to be dealt with under the said provision, Section 35 of the State Act corresponding to Section 36 of the Central Act should be an instrument “not duly stamped” as in the case of previous provision viz., Sections 33 and 34 of the State Act corresponding to Sections 33 and 35 of the Central Act and hence an instrument “not duly stamped” alone can be brought under the purview of Section 35 of the State Act corresponding to Section 36 of the Central Act. There cannot be any application of the said provision to an unstamped document except the one which would come under the purview of Section 18 of the Act. In the case of an insufficiently stamped document or defectively stamped document, the provision for impounding the document, Sections 33, 34 and 35 of the State Act viz., Kerala Stamp Act, 1959 corresponding RSA No.1286/2008 10 to Sections 33, 35 and 36 of the Central Act - The Indian Stamp Act, 1899, would be applicable. But in the case of an unstamped document, there cannot be any application of the above said provision and as such, an unstamped document which was admitted in evidence without any objection or rejecting the objection is of no use except for collateral purpose and would stand outside the purview of Section 35 of the Kerala Stamp Act corresponding to Section 36 of the Central Act. The impounding of an unstamped document, Ext.A5 by both the courts below hence cannot be sustained and no legal right would go out of Ext.A5 document as it is inadmissible in evidence except for collateral purpose and no decree can be granted based on the said document. 12. Both the courts below wrongly interpreted Ext.A5 document as a Bond. There are three categories of documents which would come under the purview of 'Bond' as defined under the Kerala Stamp Act, 1959. An unstamped document cannot be treated as a bond in either case and as such, the finding of both the courts below cannot be sustained. RSA No.1286/2008 11 13. But the suit is based on the original transaction. Ext.A5 document is relied on for collateral purpose and not to recover any amount under that document. An expert opinion was obtained with respect to the signature seen affixed in Ext.A5. Ext.A5 is seen affixed by two seals belonged to the defendant. Both the courts below rejected the expert opinion on a comparison under Section 73 of the Evidence Act, which is impermissible. When there is an expert opinion obtained under Section 45 of the Evidence Act, it cannot be eschewed on the basis of a comparison of signature under Section 73 of the Act. Section 73 of the Evidence Act is a rule of caution and prudence having no overriding effect over Section 45 of the said Act. The court should always be cautious to have a comparison of disputed signature with that of admitted one as the same would principally be a job of an expert and not of the court. It cannot be at any rate used for rejecting a report of an expert on the field, though the court can reject the same on some other reasons. The rejection of expert report on a comparison under Section 73 of the Evidence Act, hence RSA No.1286/2008 12 cannot be sustained. But the expert report submitted is really lacking in compliance of requirement as mandated. The expert opinion submitted should be capable of scrutiny by the court and the parties so as to enable them to test its correctness by cross examination, for which every details of conclusion with the materials should be annexed and forwarded with the expert opinion. The identifying characters of the disputed and admitted signature were not recognized with the aid of enlarged photographs of the signature and no such photographs forwarded. A fresh expert report hence cannot be avoided and for that purpose the decree and judgment of both the courts below are hereby set aside and the matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 18/12/2019. The appeal is allowed in part accordingly. No costs. ## **Sd/-** ## **P.SOMARAJAN** SV ## **JUDGE**