Nawab Khan respondent brought a suit against Inayat and four others, petitioners, for possession of land (details of which appear in the plaint). The suit was based on the contention that sometimes in the month of February 1960, petitioner No, 1 told the respondent that the land in suit was available for purchase for a sum of Rs, 7,000.00, and if he so desired, it could be purchased for him. The parties being closely related, a sum of Rs, 7,000.00 was paid by the respondent to petitioner No, 1 for the purpose and in this connection a document (copy Exh. P. W. 3/1) was stated to have been executed on the 18th of February 1960. It was further averred in the plaint that instead of purchasing the suit land for the respondent, the petitioners have purchased it for Rs, 5,000.00, out of the money so advanced. The petitioners contested the suit and denied execution of the document and also raised objection as to its admissibility, being insufficiently stamped.
2. The original document was not produced, as the same was stated to have been lost in a previous litigation between the parties for recovery of the balance amount of Rs, 2,000.00, out of the total sum advanced. Accordingly, secondary evidence, in the form of a photostat copy of the document was allowed to be adduced by the trial Court. Subsequently on 25th of July 1964, on objection by the petitioners in respect of the nature of the document, the trial Court, basing its conclusion on the statement of learned counsel for the respondent, held it to be an "amanatnama"
(deed of trust). A fresh issue was, however, framed in respect of the controversy between the parties as to the original document being insufficiently stamped. The issue reads as under :-- "Whether the original 'amanatnama' was properly stamped? If not, what is its effect?"
The trial Court has held by its order dated the 21st of December 1964, that the original document was properly stamped, as a receipt with a four annas stamp and photostat copy thereof has been rightly admitted as secondary evidence. The petitioners have come up to this Court in revisional jurisdiction.
3. The first contention put forward on behalf of the peti-tioners is that once the trial Court has found the document in question to be an `amanatnama' it could not subsequently hold the same to be a receipt. It was argued that the aforesaid two orders of the 25th of July 1964, and the 21st of December 1964, are contradictory in character and it is a case of error of jurisdiction. It has been further contended that the original document being a bond and not a receipt or an acknowledgment under the provisions of the Stamp Act, the duty of four annas paid on the said document was insufficient and as the original is not properly stamped, the trial Court has erred in exercise of its jurisdiction in permitting the respondent to lead secondary evidence in the form of a photostat copy'of the said document. On the other band, the respondent argues that the document is an `amanatnama' and as the original has been properly stamped, the trial Court has in no manner erred in exercise of its jurisdiction in permitting the respondent to lead secondary evidence in the form of a photostat copy of the said document, the original having been proved to have been lost.
4. It is not denied that an instrument not duly stamped is not invalid. Such a document is only subject to the disabilities mentioned in section 35 of the Stamp Act, namely, that the document cannot be admitted in evidence or registered, or authenticated or acted upon by any public officer.
However, an original instrument not duly stamped can be admitted in evidence on payment of deficit duty and penalty. In respect of secondary evidence, where the original is not duly stamped, the law is well established that secondary evidence in such circumstances is not admissible. The reason is not far to seek. Secondary evidence is only admissible when primary evidence is admissible. Further, admitting secondary evidence of documents not duly stamped would be equivalent to acting on such documents, which is prohibited by section 35 of the Stamp Act. In English law, the rule is more inflexible, as would appear from Smith v. Henley wherein it was held that even where the original had been destroyed by the wrongful act of the party objecting, secondary evidence of an unstamped document cannot be given. In the light of the discussion above the point that falls for determination is whether the original document was properly stamped. The text of the document is as under . {{URDU TEXT}}
5. Learned counsel for the petitioners has argued that the document in question relates to several distinct matters and shall be chargeable with the aggregate amount of duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the Stamp Act by virtue of the provisions of section 5 of the Act. It is maintained, on the language of the document, that although the document has been captioned as "rasid amanatnama" and it also contains the words (03.0.jj{{URDU TEXT}}and there is recital of undertaking to return the money on demand in case of failure of the purpose for which the money had been advanced and there is mention of the executant rendering himself liable for breach of trust in case of non-payment, yet the covenant in the deed as to purchase of land of Mst. Rabia Bibi with the money advanced and registration of a regular sale deed in that regard in the name of the respondent is a distinct covenant chargeable as a bond under the pro-visions of section 2(5) read with section 5 of the Stamp Act, in addition to being charged as a receipt. In support of this contention learned counsel has strongly relied on Maula Bux and others v. Munna Lal and others in which case the document was in the form of an agreement attested by two witnesses which recited certain sums to be due from one party to the other and it also contained covenant to pay interest and the document was held by the learned Judges to be a bond. Learned counsel for the respondent, however, argues that the document is merely a receipt and the covenant with regard to return of money in case of non- fulfilment of the purpose, for which it has been deposited in trust with the executant or the1 2 executant rendering himself, liable for breach of trust in case of non-payment, merely flows out of the original receipt and is not a distinct covenant. He further argues that the recital as to purchase of property in the name of the respondent with the money left with the executant, is merely descriptive of the purpose and is not the leading object or a distinct matter chargeable with stamp duty as a bond. Reliance is placed on Eknath and another v. Joja Nath S. Gowrde and others and Mullett v. Huchison and paras. 492 and 521 of Vol. 33 of Halsbury's Laws of 3rd England Edition.
6. A test suggested to determine whether matters etc. are distinct or not, is that they are capable of being carried out by several instruments instead of one. Although it is not always easy to distinguish matters which are and matters which are not distinct for purposes of taxation under the Stamp Act, yet the following rules are well settled : "Rule A.--Any matter which is not expressed would be implied by law is not distinct.
Rule B.--Any matter which is ancillary to the leading object of the instrument is not distinct.
Rule C.--Where several parties execute, their parts of the instrument are not distinct if there is community of subject-matter either as to property or interest.
From the three Rules above and the authorities cited at the bar it can be safely deduced that where a provision in an instrument is such that even if it has not been expressed it could have been implied by law, such a provision is not a distinct matter and no duty is chargeable in respect of it and that an instrument stamped for its leading and principal object covers everything accessory to that object. Bearing this principle in mind I find that the leading and principal object of the document in question was purchase of the land of Mst. Rabia Bibi under a regularly registered sale deed in the name of Nawab respondent and all other recitals were accessory to that object. On this view of the matter, the document was chargeable as a bond under the provisions of section 2(5) read with sections 5 and 6 of the Stamp Act and the same having been insufficiently stamped, no secondary evidence thereof could be adduced. Further, following with respect the dictum laid down in Mst. Halima and another v. Emperor that where secondary evidence has been admitted under erro-neous impression, the same has to be ruled out. I hold that the secondary evidence in the instant case in the form of Exh. P. W. 3/1 has to be ignored. The argument of learned counsel for the respondent on the basis of section 36 of the Stamp Act that because the copy of the original has been admitted as secondary evidence, such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped is without merit for the reason that the section relates to original instruments and not to secondary evidence. The authorities Abid Hussain and others v. Asghar Hussain and others , Wazir Chand and another v. Kundan Lal and another and Nirode Basini Mitra v. Sital Chandra Ghatak are clearly distinguishable and inapplicable. The authority more in point is Bhagwan Das Lala Gangaram v. Amardas Shamdas and another wherein, it has been held that the bar of section 36 of the Stamp Act applies only to original documents.
7. For the reasons given above, the revision petition is allowed and the order dated 21-12-1964 of the learned trial Judge set aside. There will be no order as to costs in the revision petition. (1844) 41 E R 680 AIR 1939 All. 205 I L R 9 Born. 417 108 E R 861 AIR 1947 Lah. 306 19 I C 445 AIR 1936 Pesh. 200 AIR 1930 Cal. 577(1) AIR 1938 Pesh. 323 4 5 6 7 8 9 1 2 3 4 5 6 7 8 9