It’s worth mentioning that the fundamental Stamp Act of 1899 makes no explicit provision for the admissibility of completely unstamped instruments/documents as evidence. This Act, on the other hand, allows for the admission of under-stamped or improperly stamped instruments and documents. Sections 33 and 35 of the core legislation deal with under-stamped papers and give out some of the actions that can be taken to make an under-stamped document lawful or accepted under the law. Other state stamp duty laws, notably the Maharashtra Stamp Act 1958, which has comparable requirements to the federal Act, also address the consequences of under-stamped or inadequately stamped documents/instruments.
S.33 Examination and impounding of instruments.—
(1) If any instrument, chargeable with duty in his opinion, is produced or comes in the performance of his functions before any person having authority to receive evidence by law or consent of parties, and every person in charge of a public office, except an officer of police, shall if it appears to him that such instrument is not duly stamped, impound the same.
(2)To that end, every such person should inspect every instrument so charged and presented or coming before him in order to determine whether it is stamped with a stamp of the value and description required by Indian law at the time the instrument was performed or initially executed:
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints on this behalf.
Section 35 in The Indian Stamp Act, 1899
Instruments not duly stamped inadmissible in evidence, etc.—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 [shall], 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;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
An instrument that is not properly stamped may be accepted in evidence upon payment of the applicable duty or, in the instance of an instrument that is improperly stamped, the amount needed to make up such obligation plus penalty. The document of the agreement was inadmissible as evidence because it was improperly stamped, as we previously said. The agreement to sell with possession is an instrument that needs payment of the stamp duty applicable to a deed of transfer, as the court has the jurisdiction to receive a document in evidence and give effect to it. Because the statutory duty was not paid, the trial court correctly ruled that it was inadmissible as evidence.
The question before the Hon’ble Apex Court in OMPRAKASH vs. LAXMI NARAYAN & ORS. [2014 SCC 618] was whether the admissibility of a document produced by a party would be determined by the recital in the document or the plea of the opposing party in the suit and whether the document in question is “conveyance” as defined under the Act and is duly stamped. Instruments that have not been properly stamped are inadmissible as evidence, and so forth. No instrument chargeable with duty shall be allowed as evidence for any purpose by any person having by law or consent of parties permission to receive evidence, nor shall any such person or public official act on, register, or authenticate any such document unless it is suitably stamped:
Any such instrument shall be admitted in evidence on payment of the duty with which it 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 thereof;
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