Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?

 

Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?

 

Under what circumstances, photocopy of agreement to sell can be relied upon as secondary evidence?

 

Shubham Budhiraja[1]

 

A filed a suit for possession against B on basis of agreement to sell executed in the year 1989. During the hearing, A filed IA for reading photocopy of agreement to sell as secondary evidence because he is not able to find the original agreement to sell. The Trial Court allowed the IA but in review rejected that because agreement to sell was insufficiently stamped therefore bar of section 35 of stamp act applies. The High Court confirmed the order. The Hon’ble Supreme Court held that bar of Section 35 will not apply because amendment of 1990 wherein explanation was added to the stamp act was substantive in nature and therefore new obligation of stamping cannot be imposed on agreement of sell executed between A and B.[2]

 

(i)             The mere description of a provision as an "Explanation " or "clarification" does not determine its actual effect.

 

(ii)           It is a well-established principle of law that clarification or Explanation must not have the effect of imposing an unanticipated duty or depriving a party of an anticipated benefit.

 

(iii)         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 application. Thus, it will not affect the agreement(s) executed prior to such amendment.

 

(iv)         If the documents sought to be admitted are not chargeable with duty, Section 35 has no application.

 

(v)           On admissibility of secondary evidence:

 

(a)  Law requires the best evidence to be given first, that is, primary evidence

(b) If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given.

(c)  A party must endeavour to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.

(d) When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.

(e)  Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.

(f)   Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.22

(g) Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law.

(h) Secondary evidence can be presented as a substitute when the original document/ primary evidence is in the possession of the opposing party or held by a third party;

(i)   Such a person refuses to produce the document even after due notice,

(j)   It must be ensured that the alleged copy is a true copy of the original.

 

(vi)         If a document that is required to be stamped is not sufficiently stamped, then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced. The present facts, however, differ.

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[1] LLB, ACS, BCOM(H) Budhirajalawchambers@gmail.com , +91-9654055315

[2] CIVIL APPEAL NO. 4910 OF 2023, Judgment dated 29/11/2023