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l Appeals Nos.
2537 of 1966.
591 Appeals by special leave from the judgment and decree dated September 22, 1966 of the Andhra Pradesh High Court in Second Appeals Nos. 875 of 1961, 488 and 516 of 1962.
A. K. Sen, A. V. Rangam and T. Raman, for the appellant (in all the appeals): B. V. Subramanyam and B. Parthasarathy, for respondents 1 and 2 (in all the appeals).
The Judgment of the Court was delivered by Mitter, J.
The main question in these three appeals is, whe ther reception of secondary evidence of a written agreement to rant a lease is barred by the provisions of sections 35 and 36 of the Indian Stamp Act.
The relevant facts are as follows.
There is a rice mill in Bhimiavaram, West Godavari District, which was formerly owned by the appellant along with respondents 3, 4 and 5.
The mill was built on a site with an area of Ac.
1 75 by one K. N. Raju who had obtained a lease thereof from the guardian of respondents 1 and 2.
It was executed on 21st December 1941 and was to expire on 17th July 1956.
The appellant and respondents 3, 4 and 5 were successors in interest of the said leasehold rights.
Respondents I and 2 served notice of ejectment on the lessees to quit the site and deliver possession on the expiry of the said lease.
According to the lessees there were negotiations for a new lease.
Respondents I and 2 demanded enhanced rent and an agreement was ultimately arrived at on January 6, 1957 between the appellant and respondent No. 5 for themselves and on behalf of respondents 3 and 4 on the one hand and respondents I and 2 on the other for grant of a new lease for a period of thirty years commencing on January 1, 1957.
The rent was fixed at Rs. 5401 per annum payable every two months.
There was an option given to the lessors to purchase the rice mill It a price to be fixed by the President of the Rice Mills ' Association but in case the said option was not exercised, the lessees were entitled to remove the structures of the mill.
The lessees were to continue in possession and a deed of lease was to be executed and registered within a short time.
The agreement was written on two stamp papers of Rs. 0 12 0 each and signed by the appellant and the 5th respondent on the one hand and respondent No. I on his own behalf and on behalf of respondent No. 2.
The document was delivered to the respondent No. I after execution.
The appellant 's further case is that thereafter he effected considerable improvements to the mill costing about Rs. 30,000,/ 592 and purchased the shares of respondents 3 and 4 in the said mill but respondent No. 5 who had originally joined the appellant in the suit for specific performance of the said agreement sold his share in or about September 1965 to respondent No. 6 herein.
On March 12, 1957 respondents I and 2 instituted a suit O.S. No. 81 of 1957 in the court of the District Munsif of Bhima varam against the appellant and respondents 3, 4 and 5 besides certain other persons who were in occupation of the site, for recovery of possession after removing the rice mill and structures standing thereon on the basis that on the expiry of the old lease they had become entitled to possession.
Respondents I and 2 instituted another suit O.S. No. 100 of 1957 on 4th April, 1957 in the same court claiming damages from the appellant and respondent No. 5 for failure to deliver the site from 1st January, 1957 till date of delivery of possession.
In paragraph 6 of the plaint in this suit they expressly stated that they would file a separate suit to recover the future mesne profits.
The total claim in this suit was computed at Rs. 4,700/ being the amount due for 94 days from 1st January, 1957 to 4th April, 1957 at the rate of Rs. 501per day.
On April 5, 1958 the, appellant and respondent No. 5 instituted O.S. No. 92 of 1958 against respondents 1 to 4 praying for specific performance of the agreement to lease mentioned above with a direction that the respondents 1 and 2 should execute the lease deed.
By their written statement filed in O.S. No. 92 of 1958 respondents I and 2 denied the execution of the agreement to, lease while in the two suits for recovery of possession and damages for illegal occupation the appellant and respondent No. 5 pleaded the aforesaid agreement for lease in defence and submitted that they were entitled to remain in possession without any liability as to damages.
The three suits were tried together.
As respondents I and 2 did not produce the original agreement which according to the appellant had remained with them, oral evidence was called by the appellant to prove the execution of the said document.
In his judgment the learned Munsif held: "The plaintiffs have no right to lead any oral evidence in respect of the suit agreement to lease dated 6 1 1057.
However, in order to appreciate the case put forward by the plaintiffs in the absence of the agreement to lease oral evidence has been recorded to determine whether the plaintiffs are entitled to specific performance as the full facts must be before the court.
" Examining the evidence the learned Munsif recorded his finding that : 593 "The plaintiffs on whom the burden lies have not proved by evidence of P.Ws., I to 5 and 7 which is interested and developed that the agreement to lease dated 6 1 1957 is true and valid." O.S. No. 92 of 1958 was therefore dismissed.
O.S. No. 81 of 1957 was decreed against the appellant and others and they were directed to deliver vacant and peaceful possession after removing the constructions and the mill thereon on or before 9th July 1960.
Suit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for Rs. 117 2 10.
The Subordinate Judge, Narsapur who heard the appeals from the judgment and decrees of the learned Munsif set them aside.
The suit for specific performance of the contract of agreement to lease was decreed and defendants 1 and 2 in that suit were directed to execute and register a lease deed from 1st January, 1957.
Ile accepted the oral evidence tendered on behalf of the plaintiffs in that suit and recorded that the objection regarding the admissibility of the oral evidence was raised only at the time of the argu ments on the ground that the agreement was written On a stamp paper of Rs. 1 8 0 when it should have been written on a paper with a stamp of Rs. 60/ .
According to the learned Subordinate Judge the defendants had suppressed the agreement to lease whereby the plaintiffs were deprived of the opportunity of making good the deficiency of the stamp.
The learned appellate Judge held further that the conditions mentioned in section 27 A of the Specific Relief Act had been fulfilled.
He also found that the parties were contemplating the execution of a deed of lease subsequent to the agreement and the mere fact that plaintiffs continued their possession after the expiry of the period of the previous lease did not take the case out of the purview of section 27 A of the Specific Relief Act.
The High Court in Second Appeal went elaborately into the question of the admissibility of the oral evidence regarding the agreement to lease and held that. "although the objection was raised by defendants I and. 2 in the trial court at the time of the final arguments and not before the oral evidence was received in regard to the admissibility of oral evidence, even then since section 36 is not attracted to such an objection, the oral evidence cannot be acted upon.
It is inadmissible in evidence and it cannot be received for any purpose.
" The appellant before us challenges this finding of the High Court.
Learned counsel for the appellant Mr. Sen argued that the admissibility of secondary evidence, be it oral or in writing, must 594 be primarily decided in terms of the Indian Evidence Act.
Inasmuch as the original document which was insufficiently stamped was suppressed by the defendants in the suit for specific performance, secondary evidence of the contents of the document could be led in terms of section 65(a) of the Evidence Act.
The Evidence Act imposed no bar to the reception of oral evidence by way of secondary evidence to prove the terms of the agreement to lease which was in writing and duly executed.
According to counsel the Stamp Act did not create a bar with respect to the reception of secondary evidence to prove a document which was unstamped or insufficiently stamped in any case where the party seeking to rely upon the execution of the document and the terms thereof offered to pay the penalty in terms of section 35 of the Stamp Act.
According to Mr. Sen section 35 raised a bar only in cases which were expressly excluded by proviso, (a) to section 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with the penalty in terms of the said proviso.
Mr. Sen further argued that the whole object of section 35 of the Stamp Act was that the Government revenue due by way of stamp should be protected.
But even then section 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage.
It was not reasonable, according to counsel to limit the operation of section 36 only to cases where the original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infirmity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non production of the document, it should be acted upon by courts of law if the party tendering oral evidence was agreeable to make up the deficiency in the stamp and pay the penalty in terms of section 3 5.
We find ourselves unable to accept the submissions made on behalf of the appellant.
The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evidence.
By various Chapters it deals with matters as to how facts are to be proved and which facts need not be proved.
section 59 of the Act lays down that, all facts except the contents of documents may be proved by oral evidence.
Documentary evidence is dealt with in Chapter V and section 61 provides that the contents of the document may be proved either by primary evidence or secondary evidence.
Under s.62 primary evidence means the document itself produced for inspection of the court.
section 63 shows the different kinds of secondary evidence admissible with regard to documents.
It includes several kinds of copies as specified in sub cls.
595 (1)to (3) of the section, counterparts of documents as against the parties who did not execute them in terms of cl.
(4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of cl.
Under section 64 documents must be proved by primary evidence except in cases mentioned thereafter.
Section 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in cls.
(a) to (g) thereof.
Under section 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
As the first court of appeal recorded the finding that it was the defendants who were responsible for suppression of the original agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the provisions of the Indian Evidence Act.
The Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act.
The Stamp Act which is now in force is an Act of 1899 but it had a fore runner in a statute of 1 879.
Chapter IV of the Stamp Act deals with instruments not duly stamped.
Section 33(1) of this Act provides that : "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except and 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.
" The relevant portion of section 35 is as below: "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 any such person or by any public officer, unless such instrument is duly stamped Provided that (a) any such instrument not being an instrument chargeable with a duty not exceeding ten paise only, or 596 a bill of exchange or promissory note, shall, subject to all 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, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.
Section 36 lays down that: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the around that the instrument has not been duly stamped.
" 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 evidence.
Proviso (a) is only applicable when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.
Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself.
section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is.
an instrument for the purpose of section 35. 'Instrument ' is defined in section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded.
There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
If section 35 only deals with original instruments and not copies section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit.
The words "an instrument" in section 36 must have the same meaning as that in section 35.
The legislature only relented from the strict provisions of section 35 597 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding.
In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered.
Once the time for raising objection to the admission of the, documentary evidence is passed, no objection based on the same ground can be raised at a later stage.
But this in no way extends the applicability of section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.
The above is our view on the, question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res Integra.
It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.
One of the earliest decisions is the judgment of the Judicial Committee of the Privy Council in Raja of Bobbili vs Imuganti China Sitaramaswami Garu(1).
In this case, a suit was brought by the Raja of Bobbili to obtain the proprietary possession of an estate once belonging to the family.
The original defendant was the widow of a son of the sister of the plaintiff 's paternal grandfather, a former Raja of Bobbili, by whom the estate, the subject of dispute was granted by a deed of April 5, 1848 to a cousin who had then married the then Raja 's sister.
The donee died in 1872, and his widow thereupon restored the estate to the Raja on the footing that the grant had been only for her husband 's life.
The Raja then granted the estate to another cousin who died in the same year.
This was the husband of the original defendant.
It was necessary for the Raja to show that the grant of 1848 was absolute and unconditional.
The deed of grant was however not forthcoming having been lost.
The question was whether the draft or a copy, of the instrument tendered as secondary evidence of its contents when the original instrument was shown to have been insufficiently stamped, could be, subjected to the penalty prescribed by section 34 of the Indian Stamp Act, 1879 as a preliminary to its being admissible in evidence.
The respondent denied that such a deed was ever executed and averred that the gift consisted in transferring the estate to the donee 's name in the register, upon the footing that the estate was to revert to the donor, in the event of the donee leaving no heir male of his body.
At the trial the plaintiff offered in evidence what purported to be an unauthenticated copy and the defendant objected to the admission of the (1) 23 Madras 49. 598 same on the ground that it was the copy of a document which was insufficiently stamped.
The District Judge refused to receive the document or allow it to be proved and dismissed the suit.
The appeal to the High Court of Madras was also unsuccessful, the learned Judges of the High Court holding that: "The copy should not be admitted on payment of a penalty, for the provision of the Stamp Act regarding penalty (section 39 of Act I of 1879) prescribes that such payment shall be endorsed on the document and presupposes that the document is forthcoming." Before the Judicial Committee counsel for the appellant admitted that he was not in a position to dispute that the original deed of gift dated 1848 had not been sufficiently stamped in terms of the Madras Regulation XIII of 1816 and that he would be unable to maintain his claim for the estate unless he was permitted to prove the copy of the deed and use it as secondary evidence either on due payment of a penalty in court, or upon its endorsement by the Collector.
He based his right to that remedy on the provisions of the Stamp Act of 1879.
The Judicial Committee held on the construction of the said Act that the judgment appealed from was correct observing : "These clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents which, at the time of their execution, were not stamped at all, or were insufficiently stamped.
It is only upon production of the original writ, that the Collector has the power given him or the duty imposed upon him, of assessing and charging tie penalty, a duty which he must, in that case, perform by writing an indorsement upon the writ submitted to him, which then, and not till then, becomes probative in law.
" Reference was made to, section 33 of the Act of 1879 which is in pari materia with section 33 of the Act of 1899.
section 34 of the Act of 1879 was on the same lines as the present section 35.
The Board further held that the effect of granting the remedy which the appellant maintained he was entitled to would be to add to the Act of 1879, a provision which it did not contain, and which the Legislature ,of India, if the matter had been brought under their notice, might ,possibly have declined to enact.
More than sixty years after the above decision this Court observed that the law laid down there was well settled and that a copy of an instrument could not be validated : The State of Bihar vs Karam Chand Thapar & Bros Ltd. (1).
It is not necessary to (1) ; 599 examine the facts of that case except to note that the contention put forward was whether an instrument i.e. an award received in court which had been prepared in triplicate, the other two having been sent to the parties, was an original instrument which could be used by the payment of stamp duty under section 35 of the Stamp Act and validated.
This Court held that although the document sent to the court was marked as a certified copy, it was in reality an original instrument for the purpose of the Stamp Act.
The above judgment shows that if the document tendered in court was not an original instrument but a copy the decision would have been otherwise.
However we may point out that the passage which occurs at page 835 of the report (reproduced hereinafter in part) as being quoted from the decision of the Judicial Committee is not to be found in their Lordships ' judgment.
The latter portion of the passage occurs in the judgment of the Madras High Court in Thaji Beebi vs Tirumalappa Pillai(1), but this does not in any way detract from the weight of the opinion expressed by a Bench of five Judges of this Court.
In Thaji Beebi 's case (supra) the plaintiff sued upon a "cadjan" mortgage which was said to be, in possession of the first defendant whose ancestors were alleged to have created the mortgage in favour of the plaintiffs ' ancestors.
The first defendant denied tile existence of any such deed.
The plaintiff examined two witnesses to prove the mortgage one of whom stated that he had attested the document which was unstamped.
Plaintiffs led oral evidence to prove the mortgage and also put in a petition by the first defendant 's ancestor in which the mortga e was admitted.
No objection was taken by the defendants to the reception of the secondary evidence.
The trial court found the mortgage proved but dismissed the suit on the defendants ' plea that the plaintiffs ' ancestors had sold away the lands.
On appeal the District Judge upheld the decision on the ground that the trial court ought not to have received secondary evidence of the mortgage.
The High Court dismissed the Second Appeal on the same ground.
The question as to whether it was open to.
the plaintiff to rely on the oral evidence of the alleged execution of the instrument and the alleged passing of possession of the property under that instrument in order to show that that possession operated to create by prescription only the title of a mortgage in the defendants, was answered in the negative by observing : "To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessary connect the possession with the contents of the document relating thereto; and that would be contrary to the express provisions of section 35 of the Stamp Act which (1) 30 Madras 336 at 337.
600 lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be "acted upon" by any such person unless duly stamped.
" The decisions of different High Courts make it quite clear that the cause of the non production of the original instrument is immaterial i.e. whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging that the document was suppressed by his opponent.
In Chidambaram vs Meyyappan(1) the plaintiffs produced an unstamped document as the basis of their claim.
Before the trial commenced a mob invaded the court and set fire to it with the result that records of many cases including the record of the above case were destroyed.
When the trial commenced the plaintiff sought to put in a copy of the document and it was objected to on the ground that the copy could not be stamped even on payment of penalty.
The Subordinate Judge without admitting the document but leaving the question, of its admissibility open until he had heard the arguments of counsel, marked it as an exhibit.
In rejecting the plaintiffs appeal the learned Judges of the Madras High Court referred to the decision of the Privy Council in Raja of Bobbili 's case ( 2 ) and observed that the destruction by the mob 's action put the plaintiffs in no better position.
Numerous decisions on the point had been referred to by the learned Judge hearing the Second Appeal in the High Court but we do not think it necessary to take note of them in any detail.
Mr. Sen relied strongly on certain observations in a judgment of the Rangoon High Court in Maung Po Htoo and three vs Ma Ma Gyi and one( 3 ) .
This arose out of a suit for administration of the estate of one Daw Thet San and for a declaration that a deed of gift executed by him was void.
The District Court found that the deed of gift was void as being a testamentary disposition and (,ranted a declaration to that effect.
In appeal to the High Court the decision that the deed of gift was void was not contested and the only question for decision was whether the adoptions mentioned therein were proved.
The appellants wished to use a certain part of the deed as evidence to prove that the plaintiff and one Tun Sein were not adopted while the respondents claimed that it could not be admitted in evidence for any purpose.
The deed itself was not produced which admittedly had been in possession of Po Htoo who put in a certified copy alleging that he had lost the original.
On a consideration of the entire evidence the District Judge found (1) A.I.R. 1946 Madras 298 (2) 23 Madras Rangoon 363.
601 that the original deed of gift was insufficiently stamped.
This decision was not questioned before the High Court but the appellant claimed that it could not be admissible in evidence and was riot to 'be considered for any purpose.
Referring to the decision of the Judicial Committee and the passage which we have quoted already the Judges of the Rangoon High Court remarked that their Lordships observation (quoted by us earlier) that "Those clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents, which , at the time of their execution, were not stamped at all, or were insufficiently stamped." did not intend to go as far as their words suggested.
According to the Rangoon Judges: ".
section 35 of the present Act, read with the provisions of the Evidence Act, excludes both the original instrument itself and secondary evidence of its contents.
Similarly, under section 36, when either the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped.
In this view, they held that the terms of the deed of gift could be considered.
With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect.
Neither under the decision of the Judicial Committee nor the express words of section 34 of the Stamp Act of 1879 mentioned in that judgment (present section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.
As we have expressed our view already section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence.
Section 36 only,lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage.
It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.
In the case before the Judicial Committee the copy was one other than ,the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.
For the same reason we must hold that the dictum in Satyavati vs Pallayya(1) that (1) A.I.R. 1937 Madras 431 at 432.
602 "section 35 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted.
" is not good.
Learned counsel for the appellant also relied on the decision in Ponnuswami vs Kailasam(1).
In this case a suit as filed for recovery of the loans which were evidenced as two documents described as hand letters which were admittedly unstamped.
Before the trial stamp duty and penalty was levied by the court on the tooting that they were bonds.
The defendant admitted the execution of the two documents but pleaded that in substitution of his liability under them he had executed a promissory note and had made payments towards the same, leaving a balance of Rs. 40/only payable on the loan.
Neither party let in any evidence.
The defendant raised the only contention that the suit was not sustainable on the two documents because they are inadmissible in evidence for any purpose.
The learned Judge in revision took the view that it was not necessary for him to decide as to the exact nature of the two documents to determine whether they were admissible in evidence but he went on to add : "Assuming that these two documents should not have legally admitted in evidence, nevertheless it is contended for the petitioner. . that as the defendant had admitted the execution of the documents and had only pleaded a substitution of liability by the execution of another promissory note and a partial discharge towards it there was no necessity for the plaintiff to adduce proof of his claim by seeking to get the two documents admitted in evidence.
In other words the plaintiff will be entitled to a decree on the failure of the defendant to make out the Plea set up by him in defence.
" We do.
not think this judgment helps the appellant.
If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty.
The learned Judge never mean to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document.
The learned Judge of the Madras High Court relied on an earlier decision of that court in Alimana Sahiba vs Subbarayudu (2)wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled.
The defendant admitted the execution of the promissory note sued on but pleaded discharge.
Subsequently at the stage of the argument the defendant raised a legal objection (1) A.T.R. 1947 Madras 422.
(2) A.I.R. 1932 Madras 693.
603 to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by section 12 of the Stamp Act and contended that the promissory note should accordingly be.
treated as unstamped for any purpose.
In Alimana Sahiba 's case (supra) the learned Judge stated in clear terms that "Under the provisions of section 12 (of the Stamp Act) therefore it must be taken that this promissory note was not duly stamped and accordingly if any question arose as to its admissibility in evidence the same may have to be held to be inadmissible." The learned Judge however took the view that as facts admitted need not be proved the circumstance that the promissory note was not admissible in evidence is immaterial for the purpose of this case.
No doubt the learned Judge added (see at p. 696) "Now when once this document has been admitted in evidence and marked as an exhibit ' then having regard to the provisions of section 36, Stamp Act, its admissibility could not be re opened on the ground of the document not having been duly stamped.
That position being clear under the provisions of section 36, Stamp Act, the whole discussion would thus seem to be entirely unnecessary and for no purpose, so far as the facts of this case are concerned.
" It was wholly unnecessary, as was pointed out by the learned Judge himself, to consider the question of admissibility under section 36 of the Act.
His decision really rested on the conclusion that a fact which is admitted did not require proof.
The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently stamped original document.
In the result the appeal is dismissed with costs.
The respondents moved an application C.M.P. No. 87 of 1971 under Order 47 Rule 3of the Rules of this Court for a direction that a relief for future mesne profits from the date of the suit be added to the decree.
On the fact of this case we cannot allow the application.
The respondents in their own plaint had stated that they would file a suit for future mesne profits and it was because of this that the courts below did not grant any such relief.
R.K.P.S. Appeal dismissed.

Output:
On the question whether reception of secondary evidence of a written agreement to grant a lease, insufficiently stamped, is barred by the provisions of sections 35 and 36 of the Stamp Act, HELD :The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped.
The second liml of the section 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 have the effect of the document being "acted upon" by the person having by law or authority to receive evidence.
Proviso (a) is applicable only when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.
Clearly, secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself.
There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
[596 D] If Section 35 only deals with original instruments and not copies, section 36 cannot he so interpreted so as to allow secondary evidence of an instrument to have its benefit.
The words "an instrument" in Section 36 must have the same meaning as in Section 35.
The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding.
[596 H] State of Bihar vs Karam Chand Thapar & Bros. Ltd. ; Raja of Bohbili vs Inuganti China Sitaramaswami Garu, 23 Madras 49.
, Thai] i Beehi vs Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram vs Mayyappan, A.I.R. 1946 Madras 298, referred to.
Observations in Maung Po Htoo and three vs Ma Ma Gyi and one, I.L.R. 4 Rangoon 363 and Satyavati vs Pallayya, A.I.R. 1937 Madras 431 at 432, disapproved.
Ponnuswami vs Kailasam, A.T.R. 1947 Madras 422, and Alimana Sahiba vs Subbarayudu, A.T.R. 1932 Madras 693, explained.


Input:
ivil Appeal No. 10296 of 1983 Appeal by Special leave from the Judgment and Order dated the 30th September, 1983 of the Patna High Court in C.W.J.C. No. 4139 of 1983 Pramod Swarup for the Appellant.
K.N. Rai for the Respondent.
The Judgment of the Court was delivered by 649 SEN, J.
The controversy in this appeal by special leave against an order of the Patna High Court dated September 13, 1983 relates to the legality and propriety of the action of the Chief Minister of a State in issuing certain directions, and incidentally the scope and extent of the power of a Minister to interfere with the working of a statutory functionary under his department.
The facts are that on the bifurcation on the district of Muzaffarpur and creation of the new districts of Muzaffarpur and Hajipur, a separate Central Co operative Bank called the Vaishalli District Central Co operative Bank for the district of Hajipur was registered with its registered bye laws.
Bye law No.29 of the said registered bye laws provides inter alia as follows: "29.
Management: The Management of the Bank shall vest in a Board of Directors which will consist of 17 persons: XX XX XX XX XX Provided also that the first Board of Directors of the Bank shall be nominated by the Registrar, Co operative Societies, Bihar for a period not exceeding one year at a time and not exceeding three Co operative years in aggregate and that the Registrar, Co operative Societies may modify the nomination if and when required.
" The Registrar, Co operative Societies, Bihar, in exercise of the powers conferred by bye law 29 by his order dated July 22, 1981 nominated a Committee of Management of 17 members, including the appellant, to be the first Board of Directors of the Co operative Bank for a period of six months i.e. upto December 31, 1981, or till further orders, whichever was earlier.
The Committee of Management was specifically directed to get the election of the Board of Directors of the Central Bank held in accordance with the law within six months of the date of their nomination and the Registrar by the order had reserved his discretion to make changes in the nomination of the Board by the use of expression 'until further orders '.
The Registrar by his letter dated October 1, 1981 directed the Committee of Management to complete the election of the Board of Directors of the Bank as per programme laid down therein by December 20, 1981 as the six months ' term of the nominated Board 650 was going to expire on December 31, 1981.
Copies of the letter were endorsed to the District Co operative Officer, Vaishalli for necessary action as also to the Executive Officer of the Bank stating that it would be his personal responsibility to get the desired steps taken in that connection as per the time schedule fixed.
In accordance therewith, the District Co operative Officer, Vaishalli by his letter dated October 23, 1981 directed the Executive Officer of the Co operative Bank to get the election of the Board of Directors completed by December 20, 1981.
The case illustrates an unfortunate trend which has now become too common these days in the governance of the country.
The appellant who was nominated to be the Secretary of the first Board of Directors and is apparently a political person had a direct approach to the seat of power viz., the then Chief Minister Dr. Jagannath Misra.
The result was that the first Board of Directors as constituted by the Registrar kept on flouting with impunity the repeated directions of the Registrar, Co operative Societies in that behalf, since they were not interested in holding the general meeting for the purpose of election of the Board of Directors.
Instead of complying with the directions of the Registrar, the appellant by using the letterhead of the District Congress Committee (1), Vaishalli and after bypassing the Registrar of Co operative Societies and all other officials, directly approached Dr. Jagannath Misra, the then Chief Minister of Bihar, and got the term of the first Board of Directors extended from time to time and the election of the new Board postponed without any lawful justification.
The then Chief Minister made an endorsement thereon dated October 29, 1981 addressed to the Minister (Co operation) with a direction that the Registrar should extend the period of the Committee of Management for the time being.
The Registrar was constrained by his order dated November 26, 1981 to extend the term of the Committee of Management for a period of six months i.e. till June 30, 1981 but he nonetheless gave a specific direction to the Committee of Management to call the general meeting and get the Board of Directors elected within the extended term, but this was of no avail.
On April 21, 1982 the appellant addressed a letter to the then Chief Minister for further extension of the term of the Committee of Management by one year and the then Chief Minister made an endorsement thereon addressed to the Minister (Co operation) to take necessary steps for extending the term.
Again, the Registrar by his order dated June 21, 1982 was forced to extend the term of the nominated Board of Directors for a 651 period of one year i.e. upto May 31, 1983, or until further orders, whichever was earlier.
Nevertheless, the Registrar while extending the term again made a direction requiring the Committee of Management to call the general meeting to get the new Board of Directors elected but despite the said direction, no such meeting was ever called.
On April 13, 1983, the appellant again addressed a communication to the then Chief Minister for extension of the term of the nominated Board of Directors for a period of one year from June 1, 1983 and the then Chief Minister by his order dated June 13, 1983 extended the term for six months and endorsed the same to the Minister (Co operation).
The Registrar accordingly by his order dated June 23, 1983 further extended the term of the nominated Board till November 30, 1983, or till further orders, whichever was earlier.
While extending the term, he again made a specific direction to the Committee of Management to call the general meeting for the aforesaid purpose.
With the resignation of the then Chief Minister on August 13, 1983, the respondent No. 3 Laliteshwar Prasad Shahi, Minister for Industries for the State of Bihar appears to have issued a direction on September 5, 1983 to the Commissioner of the Co operative Department.
The communication was marked as 'unofficial ' and was to the following effect: "If the Committee is reconstituted, the Board shall legally consist of 7 members only.
For this purpose, 7 names are being sent.
When the Committee is superseded under another provision, it may consist of even 15 members.
For this purpose, 8 names are being sent on a separate page.
" On a buff sheet, the Minister indicated the first set of seven names and the second of eight names.
In compliance thereof the Registrar by his impugned order dated September 6, 1983 in supersession of all his earlier orders reconstituted the first Board of Directors with immediate effect and directed that the tenure of office of the reconstituted Board shall be for the remainder of the term i.e, till November 30, 1983, or till further orders, whichever was earlier.
652 The short question that falls for determination is whether the then Chief Minister was entitled to usurp the functions of the Registrar of Co operative Societies under bye law 29.
Further, the question is whether the Minister was entitled to issue a direction to the Registrar of Co operative Societies to reconstitute the nominated Board of Directors under bye law 29; and if so, whether he could go further and assume the functions of the Registrar and forward to him a list of names to be nominated on the reconstituted Board.
Under bye law 29, it is the function of the Registrar to constitute the first Board of Directors which necessarily carries with it the incidental or ancillary power to reconstitute such Board when he is satisfied that the circumstances attendant so require.
It is urged on behalf of the appellant that the Registrar had no power to reconstitute the Board under bye law 29 and that in any event the Minister could not issue any direction to the Registrar as to the manner in which the Board was to be reconstituted.
The contention to the contrary advanced by the respondents is that the then Chief Minister had illegally usurped to himself the statutory functions of the Registrar under bye law 29 and passed the several orders in question to oblige the appellant and a handful of persons who retained their control over the Central Cooperative Bank contrary to the scheme of the Act, and that upon his demitting the office of the Chief Minister, the Minister for Industries was fully justified in issuing a direction to the Registrar for reconstitution of the Board.
It is said that the Minister was an important political worker in the district of Vaishalli and he was informally asked to suggest the names of suitable persons to the Registrar for his consideration.
The communication referred to was addressed by the Minister to the Commissioner of the Cooperative Department and marked as 'unofficial ' merely contained his informal suggestion.
The submission is that the Minister is entitled to issue a direction of this nature to a statutory functionary under his department and therefore the Registrar had necessarily to act under the directions of the Minister.
The Bihar & Orissa Cooperative Societies Act, 1935 ( 'Act ' for short) is intituled as: "An Act to consolidate and amend the law relating to Cooperative Societies in the States of Bihar and Orissa", and the Preamble recites that the object and purpose of the legislation was "to facilitate the formation working and consolidation of cooperative societies for the promotion of thrift, self help and mutal aid among agriculturists and other persons with common needs".
653 Sub s.(1) of s.7 provides that a society which has as its objects the promotion of the common interests in its members in accordance with cooperative principles, or a society established with the object of facilitating the operations of such a society, may be registered under the Act with or without limited liability.
Sub section
(1) of s.11 provides that if the Registrar is satisfied that a society has complied with provisions of the Act and the Rules and that its proposed bye laws are not contrary to the Act, or to the Rules, he may, if he thinks fit, register the society and its bye laws.
Sub section
(2) of section 14 of the Act provides that the management of a registered society shall be vested in a managing committee constituted in accordance with the Rules.
Sub s.(3) of section 14 of the Act provides that the term of office of the elected members and office bearers of the managing committee of the society shall be as provided in the bye laws of the society and the elected members and office bearers shall continue to hold office after the expiry of their term till their successors are elected or for three months, whichever is earlier.
A Central Cooperative Bank is a financing Bank within the meaning of s.2(c) which means a registered society the main object of which is to make advances in cash or kind to other registered societies or to both such societies and agriculturists.
From the very nature of things, a Central Cooperative Banks holds large sums of money.
Under the scheme of the Act, the Registrar of Cooperative Societies is charged with the duty of administering all cooperative societies within the State.
The Bihar Cooperative Societies Rules, 1959 provide that, subject to nomination by the Registrar of such number of members to the managing committee and in such manner as may be prescribed by him, a managing committee of a registered society including its office bearers shall be elected by vote from among the members of the society at the annual general meeting held in accordance with the bye laws.
Bye law 29 read with the proviso confers power on the Registrar to constitute the first Board of Directors of the Central Cooperative Bank.
Under the second part of the proviso to bye law 29, he has the necessary power to reconstitute such Board.
section 65A of the Act, on which reliance is placed, runs thus: "65 A.
Notwithstanding anything to the contrary contained in this Act, the State Government may, of its own motion or on an application made to it by any party aggrieved by the constitution, or reconstitution, 654 amalgamation, election, supersession, liquidation or any other matter concerning working of the society, call for any record of inspection or enquiry made under this Act or proceedings of any matter pending before the Registrar or his subordinate or any person acting under his authority and examine and pass such orders as it may deem fit.
" We fail to appreciate the propriety of the Chief Minister passing orders for extending the term of the first Board of Directors.
Under the Cabinet system of Government, the Chief Minister occupies a position of pre eminence and he virtually carries on the governance of the State.
The Chief Minister may call for any information which is available to the Minister in charge of any department and may issue necessary directions for carrying on the general administration of the State Government.
Presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar under bye law 29 in extending the term of the first Board of Directors from time to time.
The executive power of the State vested in the Governor under article 154 (1) connotes the residual or governmental functions that remain after the legislative and judicial functions are taken away.
The executive power includes acts necessary for the carrying on or supervision of the general administration of the State including both a decision as to action and the carrying out of the decision.
Some of the functions exercised under "executive powers" may include powers such as the supervisory jurisdiction of the State Government under s.65A of the Act.
The Executive cannot, however, go against the provisions of the Constitution or of any law.
The action of the then Chief Minister cannot also be supported by the terms of s.65A of the Act which essentially confers revisional power on the State Government.
There was no proceeding pending before the Registrar in relation to any of the matters specified in s.65A of the Act nor had the Registrar passed any order in respect thereto.
In the absence of any such proceeding or such order, there was no occasion for the State Government to invoke its powers under s.65A of the Act.
In our opinion, the State Government cannot for itself exercise the statutory functions of the Registrar under the Act or the Rules.
655 Neither the Chief Minister nor the Minister for Cooperation or Industries had the power to arrogate to himself the statutory functions of the Registrar under bye law 29.
The act of the then Chief Minister in extending the term of the Committee of Management from time to time was not within his power.
Such action was violative of the provisions of the Rules and the bye laws framed thereunder.
The Act as amended from time to time was enacted for the purpose of making the cooperative societies broad based and democratizing the institution rather than to allow them to be monopolized by a few persons.
The action of the Chief Minister meant the very negation of the beneficial measures contemplated by the Act.
For the same reasons, it must be held that the Minister for Industries also exceeded his own authority in directing the manner in which the new Board of Directors was to be constituted by the Registrar under bye law 29 by forwarding a list of 7 names to be nominated by him in the reconstituted Board and a further list of 8 names indicating that if the Committee of Management was superseded under another provision, it should consist of those 15 persons.
There is no warrant for the submission that the Registrar had no power to reconstitute the first Board of Directors under bye law 29 or to curtail the extended term.
While the proviso to bye law 29 lays down that the first Board of Directors shall be nominated by the Registrar for a period not exceeding one year at a time and not exceeding three cooperative years in the aggregate, it does not entail the consequence that when the term of the first Board of Directors is extended from time to time, it must necessarily extend to three cooperative years.
The expression "cooperative year" is defined in s.2 (bb) to mean the year beginning from the 1st of July to the 30th of June.
The second part of the proviso expressly confers power on the Registrar to modify the nomination of such Board, if and when required.
On a reading of bye law 29 read along with the proviso, it is manifest that the first Board of Directors is entitled to hold office for a period not exceeding three cooperative years in the aggregate, unless it is reconstituted by the Registrar within the aforesaid period.
That apart, the order passed by the Registrar dated July 22, 1981 nominating the first Board of Directors was for a period of six months i.e. upto December 31, 1981 or till further orders.
The words "till further orders" appear in all the subsequent orders extending the term of the Board and therefore the Registrar had reserved 656 to himself the right to curtail the extended term by reconstituting the Board, at any time.
In the instant case, however, the impugned order issued by the Registrar to reconstitute the first Board of Directors was not made by him at his own discretion in the exercise of his powers under bye law 29 but was made at the behest of the Minister for Industries and it must accordingly be held to be invalid.
In the circumstances of the case, we feel it proper to direct the Registrar, Cooperative Societies, Bihar to take over the Vaishalli District Central Cooperative Bank and exercise all the powers and perform all the duties which under the Bihar and Orissa Cooperative Societies Act, 1935 and the Bihar Cooperative Societies Rules 1959 and the bye laws of the Central Cooperative Bank are vested in the Committee of Management.
The Registrar shall either himself or through an Officer in the Cooperative Department designated by him call a general meeting of the society at such time and place at the headquarters of the Central Cooperative Bank and to require the society to elect a new Board of Directors.
We further direct that neither the members of the first Board of Directors constituted by the Registrar of July 22, 1981, nor the so called Board of Directors reconstituted by him on September 6, 1983, shall interfere with the affairs of the society.
In compliance with these direction, the Registrar of Cooperative Societies will issue immediate instructions for taking over the management of the Central Cooperative Bank and may designate an Officer in the Cooperative Department to discharge the duties and functions of the Committee of Management till a new Board of Directors is constituted in accordance with law.
The appeal is disposed of accordingly.
There shall be no order as to costs.
N.S.K. Appeal allowed.

Output:
Bye law 29 of the Bihar Co operative Society Rules, 1959 provided that the management of a Co operative Bank shall vest in the Board of Directors, and that the first Board of Directors shall be nominated by the Registrar for a period not exceeding one year at a time and not exceeding three Co operative years in the aggregate, and that the Registrar could modify the nomination if and when required.
The Registrar, Cooperative Societies in exercise of the power conferred by the aforesaid bye law nominated a Committee of Management of 17 members to the first Board of Directors of the District Co operative Bank.
The Committee was directed to get the election of the Board of Directors completed within six months of the date of their nomination.
The appellant who was a political person was nominated to be the Secretary of the first Board.
The appellant got the period of the first Board of Directors extended from time to time and the election of the Board postponed without any lawful justification.
Between October 1981 and November 1983 at the instance of the appellant, the Chief Minister gave directions to the Minister (Co operation), that the Registrar be asked to extend the term of the Board, and the Registrar 647 in turn extended the term with the direction that the Committee of Management should call a general meeting and get the Board of Directors elected.
When the Chief Minister demitted office, the third respondent, who was the Minister for Industries issued a direction to the Commissioner of the Co operative Department, marked as 'unofficial '.
It was stated therein that if the Committee was reconstituted the Board shall legally consist of seven members only.
For this purpose seven names were sent If the Committee was superseded it was to consist of fifteen members.
On a separate sheet the Minister indicated the first set of seven names and second set of eight names.
In compliance with the Minister 's directive the Registrar by his impugned order in supersession of all earlier orders reconstituted the first Board of Directors with immediate effect and directed that the tenure of the office of the reconstituted Board shall be for the remainder of the term i.e. till November 30, 1983.
Being aggrieved, the appellant assailed the order by a writ petition in the High Court, which was dismissed.
On appeal to this Court, it was contended on behalf of the appellant that the Registrar had no power to reconstitute the Board under bye law 29 and that in any event the Minister could not issue any direction to the Registrar as to the reconstitution of the Board.
The respondents, however, contended that the Chief Minister had illegally usurped the statutory functions of the Registrar and passed several orders and that the Minister was justified in issuing the requisite orders.
Allowing the appeal, ^ HELD: 1.
Neither the Chief Minister nor the Minister for Cooperation or Industries had the power to arrogate to himself the statutory functions of the Registrar under bye law 9.
Under the Cabinet system of Government, the Chief Minister occupies a position of pre eminence and he virtually carries on the governance of the State.
The Chief Minister may call for any information which is available to the Minister in charge of any department and may issue necessary directions for carrying on the general administration of the State Government.
Presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby exceeded his powers in usurping the statutory functions of the Registrar under bye law 29 in extending the term of the first Board of Directors from time to time.
[655 A, 654 C D] 2.
The executive power of the State vested in the Governor under article 154(1) connotes the residual or governmental functions that remain after the legislative and judicial functions are taken away.
The executive power includes acts necessary for the carrying on or supervision of the general administration of the State including both a decision as to action and the carrying out of the decision.
Some of the functions exercised under "executive powers" may 648 include powers such as the supervisory jurisdiction of the State Government under section 65A of the Act.
The action of the Chief Minister cannot however be supported by the terms of section 65A of the Act inasmuch as there was no proceeding pending before the Registrar in relation to any of the matters specified in section 65A of the Act nor had the Registrar passed any order in respect thereto.
[654 E G] For the same reasons, it must be held that the Minister for Industries also exceeded his own authority in directing the manner in which the new Board of Directors was to be constituted by the Registrar under bye law 29 by forwarding a list of 7 names to be nominated by him in the reconstituted Board and a further list of 8 names indicating that if the Committee of Management was superseded under another provision, it should consist of those 15 persons.
[655 C D] 3.
Under bye law 29, the Registrar had the power to reconstitute the first Board of Directors or to curtail the extended term.
Proviso to bye law 29 lays down that the first Board of Directors shall be nominated by the Registrar for a period not exceeding one year at a time and not exceeding three cooperative years in the aggregate.
It however does not entail the consequence that when the term of the first Board of Directors is extended from time to time, it must necessarily extend to three cooperative years.
That apart, the extended term of the first Board of Directors was to enure "till further orders" and therefore the Registrar had reserved to himself the right to curtail the extended term by reconstituting the Board, at any time.
[655E 656A] Upon this view, the Court directed (i) the Registrar, Cooperative Societies, to take over the District Central Cooperative Bank and exercise all the powers and perform all the duties vested in the Committee of Management which under the Bihar & Orissa Cooperative Societies Act, 1935 and the Bihar Cooperative Societies Rules, 1959 and the bye laws thereunder are vested in the Committee of Management.
And (ii) the Registrar, either himself or through an Officer in the Cooperative Department designated by him, shall call a general meeting of the Society and require the society to elect a new Board of Directors.[656 C D]


Input:
Civil Appeal No. 2614 of 1969.
From the Judgment and Order dated 20 12 1967 of the Allahabad High Court in Second Appeal No. 3105 of 1963.
G. N. Dixit and O. P. Rana for the Appellant.
Ex parte for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
A second appeal under section 100 of the Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded to the Lower Appellate Court for fresh disposal in accordance with law point.
The order of remand was made under the provisions of Order XLI Rule 23 of the Civil Procedure Code 1908, as amended by the Allahabad High Court.
The 1132 successful appellant before the High Court filed an application under section 13 of the Court Fees Act, 1870 claiming a refund of the Court Fees Act, 1870 claiming a refund of the Court fee paid in the Second Appeal.
The application came before G. C. Mathur, J., who entertained a doubt whether section 13 of the Court Fees Act applied to a case of remand under the provisions of Order XLI Rule 23 Civil Procedure Code as amended by the High Court and referred the question for the consideration of a Full Bench.
Thereafter the application was heard by the Full Bench consisting of Jagdish Sahai, Pathak and Kirty, JJ.
Pathak and Kirty JJ., took the view that refund of Court Fee could be ordered under section 13 of the Court Fees Act, even where the remand was made under the amended provisions of Order XLI Rule 23.
Jagdish Sahai, J. dissented.
In accordance with the opinion of the majority, the court fees paid by the appellant before the High Court was directed to be refunded.
The State of U.P. obtained a certificate under Article 133(1)(c) of the Constitution and has preferred this appeal.
Section 13 of the Court Fees Act 1870, in so far as it is material is as follows: "If an appeal or a plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure as ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in section 351 of the same code for a second decision of a lower court, the lower court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal".
Section 13, thus speaks of a suit remanded in appeal on any of the grounds mentioned in section 351 of the same Code i.e. the Code of Civil Procedure which was then in force.
Section 351 of the Code of Civil Procedure 1859 provided for the remand of a case by the appellate court to the lower court for a decision on the merits on the case.
where "the lower court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact whish shall appear to the appellate court essential to the rights of the parties".
If the decision on the preliminary point was reversed by the appellate court.
The Code of 1859 was repealed and replaced by the Code of 1877.
Section 562 of the 1877 Code was substantially in the same terms as section 351 of the 1859 Code.
The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908.
Order XLI Rule 23 of the 1908 Code also provided for the remand of a case 1133 to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court.
In exercise of the powers vested in it under section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amended the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice.
The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court Fees Act 1870 was attracted to a case where the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad.
In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908.
It was as follows: "158.
In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or rule".
It follows from Section 158 that reference in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908.
The submission of the learned counsel was that the reference to any provision of the Code of Civil Procedure 1908 pursuant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to section 158 and not to the provisions of the rules in the first schedule.
He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court.
The first part of the submission of the learned counsel has to be rejected straightaway having regard to the express reference to 'Order ' and 'Rule ' in section 158 of the Code of Civil Procedure 1908.
The second part of the submission requires a slightly closer examination.
Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including 1134 "Rules".
Section 2(18) defined "Rules" as meaning "Rules and forms contained in the first schedule or made under section 122 or section 125".
Section 121 of the 1908 Code declared that the rules in the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance with the provisions of part X of the Code" (section 121 to 131).
Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil code subject to their superintendence, and made by such rules, annual, alter or add to all or any of the rules in the first schedule".
Section 126 made the rules made by the High Court subject to the previous approval of the Government of the State.
Section 127 provided that the rules so made and approved shall have the same force and effect as if they had been contained in the first schedule.
These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes.
That is the clear effect of the definition of the expressions "Code" and "Rules" and sections 121, 122 and 127.
It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear.
We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra vs Smt.
Javatri Devi(1), regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.
Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 23, as originally passed by the Legislature and not as amended by the High Court.
In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
We are of the view that the question was rightly answered by the Full Bench of the Allahabad High Court and the appeal is, therefore, dismissed.
P.B.R. Appeal dismissed.

Output:
A second appeal under section 100 Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded by the High Court under Order XLI, Rule 23 CPC as amended by the High Court to the Lower Appellant Court for fresh disposal in accordance with law.
A majority of the Division Bench allowed the respondents claim for refund of the court fees on the view that refund could be ordered under section 13 of the Court Fees Act even where the remand was made under the amended provisions of Order XLI, Rule 23.
In appeal it was contended that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature and not as amended by the High Court.
^ HELD: A conspectus of the relevant provisions of the Code of Civil Procedure 1908 makes it clear that the rules made by the High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore necessarily become part of the code for all purposes.
That is the clear effect of the definition of the expression 'code ' and 'rules ' and sections 121, 122 and 127 of the Code of Civil Procedure, 1908.
[1134 C E] Chandra Bhushan Misra vs Smt.
Javatri Devi A.I.R. (56) 1969 Allahabad 142 approved.


Input:
ivil Appeals Nos.
621 to 626 of 1965.
Appeals by special leave from the judgment and order dated March 6, 1964 of the Allahabad High court in Civil Misc.
Writs Nos.
1428 to 1433 of 1961.
J. P. Goyal and Sobhag Mal Jain, for the appellants (in all the appeals).
section P. Sinha and M. 1.
Khowaja, for respondents Nos.
2 to 4 (In all the appeals).
The Judgment of the Court was delivered 'by Mitter, J.
These six appeals by special leave arise from a common judgment of the Allahabad High Court rejecting six writ petitions filed by the appellants in that court for quashing the orders of the Board of Revenue arising out of cases filed under section 232 of the U.P. Zamindari Abolition and Land Reforms Act.
The relevant facts are as follows. ' In 1945 one Ram Dhari Singh who was the kadar of the proprietary rights of.
a village sued the appellants and the respondents other than the Board of Revenue for their ejectment under section 171 of the U.P. Tenancy Act alleging that the appellants had illegally sublet the lands to the,said respondents.
The appellants and the respondents made a common cause denying the alleged subletting and stating that the entries in the village records about.
the respondents being subtenants were erroneous.
On 3rd March 1946 i.e., towards the end of 1353 F. the suit was dismissed on the ground that there had been ' no ' subletting and that the, entries regarding the sub letting in the village records were not correct.
No attempt was however made by anyone to bring the village records in harmony with the said decision with the result that the said respondents continued to figure therein as sub tenants as before.
On his attention being drawn to this fact, the Lekhpal on his own authority removed the entries in favour of the said respondents s lowing them as sub tenants from the records of the year ending 1358 F. 500 The entries in the year 1356 F. were left undisturbed and it was not within the jurisdiction of the Lekhpal to make any alterations therein.
The U.P. Zamindari Abolition and Land Reforms Act (here inafter referred to as the 'Act) came into force with the commencement of 1360 F. i.e. last July, 1952.
Under section 20(b)(i) every person who was recorded as occupant in the Khasra or Khatauni of 1356 F. prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act was to be called an "adhivasi" and was subject to the provisions of the Act, to be entitled to take or retain possession of the land (unless he would become a bhumidar or an asami).
The second Explanation to the section provided that where any entry in the records referred to in clause (b) of section 20 had been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901, the entry so corrected was to prevail for the purposes of the said clause.
The third Explanation provided that for the purposes of the second Explanation an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in the records had been made before the said date, and had become final even though the correction may not have been incorporated in the records.
On the strength of the Khasra and Khatauni of 1356 F. the respondents claimed adhivasi rights under section 20(b) (i) of the Act.
They filed six suits praying for recovery of possession under section 232 of the Act.
According to their case, the appellants were never.
in possession of the lands in dispute at any time.
They lost the suits before the Sub Divisional Officer and the Additional Commissioner of Varanasi but they ultimately succeeded in appeals to the Board of Revenue.
The appellants filed the writ petitions for quashing the orders: of the Board of Revenue.
The Hi Court went elaborately into the procedure for making entries in the records of rights and examined the question as to whether an entry recording a person as a sub tenant was equivalent to an entry recording him as occupant for the purpose of the Act.
The High Court concluded that the impugned orders of the Board of Revenue were wrong but held that the Board had jurisdiction to interpret section 2 it thought proper and as the orders passed by it were final without being subject to any appeal ', they could not be quashed by certiorari as being mere errors of law.
It is from this judgment that the present appeals have been launched.
Learned counsel for the appellants raised the following points in his address 501 (1) The correctness of the entry in the record of rights of 1356 F. can be gone into and is capable of challenge in a court of law exercising jurisdiction under article, 226.
(2) In the present case there was an adjudication in March,, 1946 and the respondents were not sub tenants : consequently, unless they showed that they had hereafter become sub tenants the benefit of the entry in their favour in 1 3 5 6 F. could not be availed of by them.
(3) Under rule 183 of the rules framed under the Act it was incumbent on the respondents to state in their applications the dates of their dispossession and the failure to do so rendered their petitions defective.
(4) In the Khasra of 1356 F. the respondents were only recorded as sub tenants but not as occupants and hence they cannot get the benefit of section 20(b) (i) of the Act.
Before entering into a discussion as to the merits of the points raised, it is worthy of note that before the Board of Revenue ie.
the ultimate fact finding authority the contention on behalf Of the respondents who were the appellants before the Board, was that they had been recorded as occupants in the revenue papers of 1356 F. and hence they were entitled to be reinstated to possession, it being unnecessary for them to prove that they were in actual possession in 1356 F. The arguments before the Board of Revenue on behalf of the present appellants were : (1) as the appellants were not in possession, they were not sub tenants either in 1356, F. or before and hence they could not be regarded ' as occupants in 1356 F: in support of this proposition reliance was placed on a decision, of this Court in The Upper Ganges Sugar Mills Ltd. vs Khalil ulRahman and others( ') which will be discussed later : (2) as both the courts below and the Board of Revenue, had concurrently found that there was no contract of sub tenancy, the respondents could not be regarded as sub tenants and could not rely on an entry in the year 1356 F. in their favour, and (3) a sub tenant was not an occupant and as such not, entitled ' to maintain an application under section 232 of the Act.
All these contentions were turned down by the Board of ' Revenue.
As regards the first point the Board took the view that the Upper Ganges Sugar Mills (1) case did not lay down that a, person had to be in actual possession before he could get the, benefit of the entry in the record of rights of 1356 F.
With regard to the second point, the Board held that even if the respondents had failed to prove that they were sub tenants they could" (1) ; 502 still be treated as trespassers.
The third point was disposed of by the Board placing reliance on an earlier decision of its own to the effect that the entry of sub tenancy should be held to be an entry of a recorded occupant.
There are two decisions of this Court which negative the points canvassed before us.
In the Upper Ganges Sugar Mill?(") case, the appellant company, a thekadar up to 1355 F. (June 1948) had retained possession of the lands in dispute by virtue of stay orders granted although the landlord had succeeded in the ejectment suit under the U.P. Tenancy Act in all the courts up to the Board of Revenue.
During the pendency of the company 's appeal to this Court, the Act came into ' force.
The company star proceedings to recover actual possession under section 232 of the Act read with sections 12 and 20.
The trial court decided in favour of the company and ordered delivery of possession under both the sections.
The landlords lost in appeal.
Thereupon there was a Second Appeal to the Board of Revenue which was dismissed in January 1956.
The landlords came to this Court on special leave, The appeals were remanded by this Court for a finding whether the company had acquired any rights under section 20 of the Act.
The Board held that the company was entitled to such benefit and had acquired Adhivasi rights thereunder.
Before this Court at the final hearing, there was a good deal of discussion as to the meaning of the expression "a person in occupation".
It was held, that in order that the company could take the benefit of section 20 it should have been recorded as in occupation of the land in dispute in the year 1356 F. and the only limitation.
placed by judicial decisions on the meaning of the word occupant" was that a person should be in occupation in his own right and not on behalf of some cane else.
On behalf of the landlords it was argued that the company was not in possession in its own right firstly because there was an order for ejectment in November 1948 and thereafter it retained in possession only on account of the stay orders; and secondly, as a , thekadar the possession of the company was on behalf of the landlords.
This Court held that on the landlords" own showing the company was not in possession as a thekadar is the theka had expired before 1356 F. and consequently the nature of occupation of the company was on its own behalf and not on behalf of the court or of the landlords.
In the result, the company was held entitled to Adhivasi rights.
This case establishes that a person recorded as an occupant on the relevant date although found by courts of law to have no right to I possession even prior thereto, is not to be denied Adhivasi rights.
(1) ; 503 The case of Amba Prasad vs Abdul Noor Khan and others( ') is more in point.
Amba Prasad was a zamindar of a village before the coming into operation of the Act.
The opposite parties were persons whose names had been recorded in column 23 (miscellaneous) in the Khasra for the year 1356 F. as persons in possession and they claimed to be recorded as occupants of the fields in dispute and to have obtained adhivasi rights under section 20.
The case of the respondents was that they were in occupation of the land, and had been dispossessed after June 30, 1948 by the appellant and as they were recorded occupants in 1356, F. they were not required to prove actual possession.
The appellants stand was that the entry was fraudulently made after July, 1949.
The suits were dismissed by the Sub Divisional Officer but in appeal the Additional Commissioner held that the respondents had ' acquired Adhivasi rights.
This was upheld by the Board of Revenue.
The appellant then filed appeals to this Court.
The real dispute , as noted by this Court was whether a person who was recorded as 'Qabiz ' but not as a tenant or Subtenant would get the advantage of section 2O of the Act and claim Adhivasi rights.
Examining the scheme of section 20 along with its.
Explanations, it was observed: "The section, speaking generally, says that certain persons "recorded" as "occupants" of lands (other than grove lands or lands to which section 16 applies) shall be known as adhivasis and shall be entitled to retain or to regain possession of them after the date of vesting which was July 1, 1952 .
Such persons. must be recorded as occupants, in the khasra or Khatauni for 1356 F. (1 7 48 to 13O 6 49).
If such a., person is in possession , he continues in possession.
If he is evicted after June 30, 1948 he is to be put back in possession notwithstanding anything in any order or decree.
By fiction such persons are deemed to be entitled to regain possession (Explanation I).
The emphasis has been laid on the record ' of khasra or khatauni of 1356 F. and June 30, 1948 is the datum line.
The importance of an entry in these two documents is further apparent from Explanations II and III.
Under the former if the entry is corrected before the date of vesting (1 7 52) the corrected entry is to prevail and under the latter the entry is deemed to be corrected (even though not actually corrected) if an order or decree of a competent court ordering the correction had been made before the date of vesting and the order or decree had become final.
There are thus two date lines.
They are June 30, (1) ; 504 1948 and July 1, 1952, and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the year .1356
F." The Court went on to add that the word 'occupant ' had not been defined in the Act and said.
: "Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the Ian( in possession or actual enjoyment.
The khasra, however, may mention the proprietor, the tenant, the subtenant and other.
person in actual possession, as the case may be.
If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant, the tenant, and between a tenant and the subtenant the latter and between him and a person recorded in ' the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants. .
The section eliminates inquiries into disputed possession by accepting the records in the kha or khatauni of 1356 F. or its correction before July 1. 1952.
It was perhaps thought that all such disputes would have solved them selves in the four years between June 30, 1948 and June 30, 1952.
" With regard to the question as to whether a mere entry in 1356 F. without possession in that year was sufficient, reference ,was made by this Court to the Full Bench decision of the Allahabad High Court in Ram.
Dular Singh and another vs Babu Sukh Ram & others(1) which had endorsed the earlier view in Nanakchand vs Board of Revenue, U.P. (16).
In the last mentioned case the Allahabad High Court had observed that the words in the section were not "every person who was an occupant in 135,6 F." nor were the words "every person who was recorded as an occupant in the year 1356F. and who was in possession in that year.
" According to the Allahabad High Court there was no warrant for introducing words in the section which were not there.
This Court felt that .in view of the long established line, of cases, there was no justification for reopening this question and the decision of the Board of 'Revenue was right.
These decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants.
The record of rights for the year 1356 F. had not been corrected afterwards.
We 'have, to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub tenants after the decision in favour of the landlord,, Ram Dhani Singh.
The last decision of this Court also shows, that as between the tenant and the sub tenant the entry in the record of Tights in favour of the (1) (2) 505 sub tenant makes him the occupant entitled to the adhivasi rights under section 20 of the Act.
With regard to the point as to the violation of rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it.
In the result, the appeals fail and are dismissed with costs.
One hearing fee.
R.K.P.S. Appeals dismissed.

Output:
In 1945 one R who was the thekadar of the proprietary rights of a village, sued the appellants and the respondents, other than the first respondent Board of Revenue, for their ejectment under section 171 of the U.P. Tenancy Act.
alleging that the appellants had illegally sub let the lands to the respondents.
The appellants and the respondents made a on cm denying the alleged 'sub letting and stating that the entries in the village records about the respondents being sub tenants were erroneous.
The suit was dismissed in March, 1946, I.e., towards the end of 1353 F on the ground that there was no sub letting and the entries were not correct No attempt was made by anyone to bring the village records in harmony with this decision and the respondents continued to figure as sub tenants in these records.
On his attention being drawn to this, the Lekhpal, on his own authority, removed the entries in favour of the respondents from the records for the year ending 1358 F but the entries for the year 1356 F were left undisturbed as it was not within the Lekhpal 's jurisdiction to alter these.
After the U.P. Zamindari Abolition and Land Reforms Act came into force in 1952 i.e., at the beginning of 1360 F, on the strength of the Khasra and Khatauni of 1356F, the respondents claimed Adhivasi rights under section 20(b)(i) of the Act and.
file six suits praying for the recovery of possession of the lands under 'section 232 of the Act.
They lost the suits before the sub Divisional Officer and Additional Commissioner of Varanasi but succeeded in appeals to the Board of Revenue.
The appellants thereafter filed writ petitions for quashing the orders of the Board; and the High Court although of the view that the impugmed orders of the Board of Revenue were wrong, held that the Board had jurisdiction to interpret section 20(b) as it thought proper; and as the orders passed by it were final without being subject to any appeal.
they could not be quashed by certiorari as being mere errors of law.
In appeal to this Court, it was contended, inter alia, on behalf of the appellants that (i) the correctness of the entry in the record of rights of 1356 F could be gone into and was capable of challenge in a court of law exercising jurisdiction under article 226; (ii) in the present case there was an adjudication in March 1946 that the 'respondents were not subtenants; consequently, unless they showed that they had thereafter become sub tenants, the benefit of the entry in their favor in 1356 F could not be availed of by them; (iii) in the Khasra of 1356 F the respondents were only recorded as sub tenants but not as occupants and could not therefore get the benefit of section 20 (b) (i) of the Act.
HELD: Dismissing the appeals.
The record of rights for the year 1356F had not been corrected afterwards.
The court had to go by the entry in the record of rights and 499 no enquiry need be made as to when the respondents became sub tenants after the decision in the suit filed by R. As between the tenant and the sub tenant, the entry in the record of rights in favour of the sub tenant made him the occupant entitled to the adhivasi rights under section 20 of the Act.
[5O4 G H] The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rahman and others; , ; Amba Prasad vs Abdul Noor Khan Sukh Ram & Ors.
, ; and Nanakchand vs Board of Revenue U.P. ; applied.