Judgement Appeal (No. 47 of 1923) from a decree of the High Court (August 9, 1920) affirming a decree of the Subordinate Judge of Purulia. The respondent granted to the appellants a lease dated December 14, 1906, for 999 years of land for use as a coal mine in consideration of a sum of Rs. 1920 as salami, or premium, and payment of 5 annas per ton of coal raised as royalty with a minimum of Rs. 960 per annum. The instrument was stamped with stamps to the value of Rs. 40, of which Rs. 20 was the amount payable under the Indian Stamp Act, 1899, in respect of the premium. Sect. 26 of the above Act provides that " where the amount or value of the subject matter of any instrument chargeable with ad valorem duty cannot be .... ascertained at the 08 Law. Rep. 51 Ind. App. 332 ( 1923- 1924) Lachmi Narayan Agarwalla V. Braja Mohan Singh date of its execution, nothing shall be claimable under such instrument more than the highest amount or value for which, if stated in an instrument of the same description, the stamp actually used would .... have been sufficient." The balance l of Rs. 20 would have been sufficient under the Act for an instrument providing for royalties up to Rs. 2000. Sect. 35 of the above Act provides that no instrument shall be admitted in evidence " unless such instrument is duly stamped," but provides further that instruments (subject to certain exceptions) shall be admitted in evidence on payment of the duty chargeable, or such an amount as makes up the deficiency in the stamp together with a penalty as therein provided. In 1917 the respondent brought a suit against the appellants, claiming under the lease royalties for the years 1911 to 1916; he valued his claim at Rs. 39,900. The appellants pleaded (inter alia) that, having regard to s. 26 of the Indian Stamp Act, no more than Rs. 2000 could be claimed. The Subordinate Judge admitted the lease in evidence under the proviso to s. 35, and rejected the above plea ; he gave the respondent a decree for Rs. 20,622. Upon appeal to the High Court the decision was affirmed. 2000 could be claimed. The Subordinate Judge admitted the lease in evidence under the proviso to s. 35, and rejected the above plea ; he gave the respondent a decree for Rs. 20,622. Upon appeal to the High Court the decision was affirmed. The learned judges (Dawson Miller C.J. and Mullick J.) were of opinion that there was nothing in s. 35 of the Act which excluded its operation in the case of instruments coming within s. 26. 1924. June 26. Sir George Lowndes K.C. and E. B. Raikes for the appellants. Sect. 35 applies only to instruments not duly stamped. But having regard to the special provisions of s. 26 applicable to leases where the annual amount payable is .uncertain, the lease was duly stamped. The amount claimable under it was however, limited by that section to Rs. 2000. [Reference was made to Baijnath v. Ahmed Musaji Salleji. (( 1912) 17 Cal. W. N. 395.)] The respondents did not appear. The judgment of their Lordships was delivered by LORD DUNEDIN. In this case, which has been heard ex parte, Sir George Lowndes has said everything that could be said on behalf of the appellants, but he has not created any doubt in their Lordships minds that the judgment of the High Court at Patna was right. It is clear to their Lordships that the proviso (a) of s. 35 of the Indian Stamp Act, 1899, is of equal ambit with the body of the section, and that just as an instrument cannot be acted upon—that is to say, nothing can be recovered under it unless it has a proper stamp—so by the proviso if there is not a proper stamp it may be put on afterwards on payment of a penalty, and the instrument then becomes effective. Their Lordships will humbly advise His Majesty that the appeal be dismissed.