OBELISETTY RAMANADHAM Vs. OBELISETTY BHASKAR RAO

JUDGEMENT

(1.) THIS revision is directed against the order dated 16. 3. 2007 passed in i. A. No. 232 of 2007 in O. S. No. 42 of 2003 on the file of the Court of the IV Additional district Judge, Warangal, whereby the court below permitted a xerox copy of the partition list to be adduced as a secondary evidence as provided for under Section 65 of the Indian Evidence Act, 1872 (for short, 'the Act' ).

(2.) BRIEF facts are that petitioner herein, who is none other than the father of the respondents herein, instituted the suit, o. S. No. 42 of 2003, seeking partition of the plaint schedule properties into four equal shares and put him in possession of his share. In the said suit, the stand of the defendants i. e. , the respondents herein is that the suit schedule property was already partitioned and that during the course of partition, a list of partition was prepared by the elders on 19. 12. 1996 and the original was handed over to the father i. e. , the petitioner herein and xerox copies alone were given to the respondents. Despite the fact that a notice under Section 66 of the Act was issued to the petitioner for production of the said document the same was not produced into Court. Hence, the second defendant i. e. , the first respondent herein filed I. A. No. 232 of 2007, a petition under section 65 of the Act, seeking permission to accept xerox copy by way of secondary evidence. The same was opposed by the petitioner herein stating that the original was never given to him and it is also further stated by him that the said document was described as an award by PW. 1 in his cross-examination and as such it requires to be stamped and as the same is not duly stamped it is inadmissible in evidence. It is also contended that no stamp duty can be collected on the xerox copy and as such the same cannot be allowed to be a part of the evidence. On a consideration of the entire material on record, the Court below allowed the said application holding that the said xerox copy could be admitted in evidence under Section 65 of the Act. As stated above, the said order is under challenge in this revision.

(3.) SRI Bankatlal Mandhani, learned counsel for the petitioner mainly contended that a document, which requires stamp duty and is not properly stamped, is inadmissible in evidence. In this context, learned Counsel has drawn my attention to the provisions of Sections 35 and 36 of the indian Stamp Act, 1899 (for short, 'the stamp Act') and placed strong reliance on a judgment of the Supreme Court in Jupudi kesava Rao v. Pulavarthi Venkata Subba rao and others, AIR 1971 SC 1070 and also on a judgment of this Court in E. Venkat v. E. Yadgir, AIR 1973 AP 398.