K. MUHAMMED Vs. NANI

JUDGEMENT

(1.) Counsel for defendants 2 to 7 (who are the appellants in this second appeal) has argued a sterile point of law arising u/s 35 of the Kerala Stamp Act (corresponding to Sec. 36 of the Indian Stamp Act) challenging the view taken by the courts below that a copy of an insufficiently stamped or an unstamped instrument, admitted in evidence, cannot be acted upon or even regarded as admitted in evidence notwithstanding its exhibition as a document in the case. Sterile, I say, because some legal questions have large social stakes while others are barren of social benefit but provide scope for legal ingenuity, subtle forensic exercise and speculative litigation as in this case. This later class of legal point, if beset with judicial conflict, must be settled by legislative action in time unless the Supreme Court pronounces upon it in the meanwhile. The plaintiff brought a suit for recovery of possession of the suit property, on the strength of his title, from defendants 1 to 4 who were alleged to be trespassers on the land. The jenmi of the property is one Meledathu Mana which leased the land on verumpattom right to another, by name Velappan. This latter assigned his right to his son Parangodan who, in turn, transferred the leasehold to the plaintiff. The plaintiff claimed to have obtained actual possession under this deed dated 17-11-1960. While he was thus in possession, defendants 1 to 4 tress passed into the property on 20-4-1961 whereupon this suit for recovery of possession was brought. The defendants raised various contentions with which we are not very much concerned in the present appeal. However, they pleaded that Parangodan had executed an agreement to assign the property in favour of the 2nd defendant and had passed a letter dated 2-4-1960 embodying the terms of the agreement. He had also passed possession of the property to the 2nd defendant pursuant to the agreement. It is also seen that subsequent to the institution of the suit a regular assignment deed was executed (Ex. B7) dated 24-1-1962 to the 2nd defendant and thus he has validly become the lessee of the property. If, as a matter of fact, there was a valid agreement to sell in favour of the 2nd defendant even earlier to the assignment of leasehold right to the plaintiff and pursuant to it he had been put in possession, may be, the plaintiff may have serious difficulties in getting a decree. The decisive factor in the case, therefore, is the factum of the agreement alleged to have been executed by Parangodan in favour of the 2nd defendant. A copy of the said agreement has been exhibited in the case as Ex. B1. When the original was produced in court it was discovered to be an unstamped instrument and was impounded u/s 34 of the Kerala Stamp Act (for short, called the Act). Instead of paying the stamp duty and penalty the defendants cannily applied for a certified copy of the document from the court and produced it as evidence. So far as the records disclose or counsel are aware, the stamp duty and penalty not having been paid, the original agreement remains impounded. However, the defendants pressed into service the certified copy, to prove the alleged agreement to sell in their favour and at a moment when forensic alertness had fallen asleep this copy was marked as Ex. B1 in the suit. The plaintiff urged later that on account of the ban contained in Sec. 34 the original of Ex. B1 was neither admissible in evidence nor capable of being acted upon and the copy Ex. B1 necessarily had to share the same fate, and that even if it had been inadvertently admitted in evidence it could not be relied upon as evidence or acted upon by the court to refuse a decree to the plaintiff. Of course, the plaintiff also took up the stand that Ex. B1 had not been admitted in evidence in the manner the law requires. The learned Subordinate Judge, after setting out the facts relating to Ex. B1, cryptically observed: "In the circumstances, Ex. B1 cannot be treated as evidence." Although the judgment is bereft of any discussion on the point or reference to precedent, I am satisfied that the conclusion reached by the learned Subordinate Judge is sound.

(2.) It may be useful to formulate the few points for decision:

(3.) I shall tread through the jungle of rulings which surround the subject although the ultimate feeling at the end of it all is that some simple amendment of the law would have eliminated the complex controversy which does nobody any good.