LAXMIBEN WD O CHINUBHAI BAPALAL MODI Vs. MANIBEN WD O GIRDHARLAL BAPALAL MODI

JUDGEMENT

(1.) The learned Judge - and I again say quite rightly - has scrutinized the document and held as follows. I quote below his assessment of the document from paragraph 18 of his order. The learned Judge states:-

(2.) If any authority in support of the above proposition of law emerging from the application of the common sense point of view is needed the judgment of the Allahabad High Court in the case of Ratanji Bhagwanji & Co. v. Prem Shanker A.I.R. 1938 Allahabad 619 can be adverted to. The learned Judge of the Allahabad High Court there observed:

(3.) The question however is: Can this court now set aside the order of the learned trial Judge for admitting the document even though it is insufficiently stamped taking the document as one instrument as per sec. 5 of the Bombay Stamp Act? Had it been a matter of simple corollary the question would not have presented any difficulty. However sec. 35 of the Bombay Stamp Act (corresponding to sec. 36 of the Indian Stamp Act) precludes this court from going behind the finding of the learned trial Judge in admitting this insufficiently stamped document except for the purpose of sec. 58 of the Bombay Stamp Act (corresponding to sec. 61 of the Indian Stamp Act). Once we concede that for the purpose of stamp duty a document is to be taken as a unit it follows a fortiorari that the admission of the document by the trial court is of a document insufficiently stamped or unstamped. Once such document is admitted into evidence by the learned trial Judge rightly or wrongly the question stands unfortunately concluded as per the provisions of law. Even the Allahabad High Court judgment which has been referred to by me above in support of the submission of Mr. Pandya for the heirs of deceased Chinubhai itself provides that where the trial court admitted an insufficiently stamped document in its entirety but relied only on a portion of it as an acknowledgment to save limitation the appellate court would be precluded from questioning the admissibility of the document even though it had been wrongly admitted by the trial court. This point has been set at rest by the Supreme Court in the case of Javar Chand & Ors. v. Pukhraj Surana A. I. R. 1961 S. C. 1655. The Supreme Court observed that -where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The court has to judicial determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses sec. 36 comes into operation. Once a document has been admitted in evidence as aforesaid it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not liable to be reviewed or revised by the same court or a court of superior jurisdiction. What the Supreme Court lays down is the law of the land as Article 141 of the Constitution of India ordains. Mr. Pandya therefore could not plead with any appreciable vehemence that this document admitted into evidence despite the strong protest raised on behalf of the bears of deceased Chinubhai could be successfully taken out of consideration. He however tried to urge further arguments on the basis of the very judgment of the Supreme Court in Javer Chands case (supra). The Supreme Court has stated in the course of its judgment as follows :