JUDGMENT : C. Shah, J. These two cross appeals arise out of the decree in suit No. 88 of 1947 on the file of the Subordinate Judge, Masulipatam filed by Sri Yarlagadda Venkata Ramalinga Prasad Bahadur Zamindar who will hereinafter be called 'the plaintiff', against Srimanthu Rajah Yarlagadda Sivaram Prasad Bahadur Zamindar who will hereinafter be referred to as 'the defendant'. The following genealogy shows the relationship between the parties to this litigation: Chek 2. Sri Raja Ankineedu Prasad Bahadur I great grandfather of the plaintiff and the defendant was possessed of an extension Zimindari known as Challa-palli or Devarakota estate. By the rule of primogeniture the estate devolved on his death upon his eldest son Sri Mallikarjuna Prasad. Durga Prasad the younger son then instituted suit No. 18 of 1880 for partition of the Zamindari and separate possession of his share. The litigation was carried to the Privy Council and it was ultimately decided by the Judicial Committee on May 1, 1890 that the estate of Devarakota was impartible and descends to the eldest son of the last owner. The Judgement of the Privy Council is reported in Srimantu Raja Yarlagadda Mallikarjuna v. Srimantu Raja Yarlagadda Durga, LR 17 I.A 134 Thereafter the two younger brothers of Mallikarjuna Prasad, Durga Prasad and Venkata Ramalinga Prasad, sued Mallikarjuna Prasad separately by suits Nos. 10 & 13 of 1891 on the file of the District Court, Krishna for maintenance. This litigation was also carried to the Privy Council and a decree for maintenance at the rate of Rs. 750/- per month was awarded to each of the two claimants. The Judgment of Privy Council is reported in Raja Yarlagadda Mallikarjuna Prasad Nayudu, L.R. 27 I.A. 151. 3. After the death of Mallikarjuna Prasad Nayadu in 1921, four suits-being suits Nos. 30, 31, 32 and 33 of 1925 on the file on the District Court, Krishna Masulipatam were filed by the grandsons of the common ancestor against Ankineedu Prasad II - father of the defendant-claiming maintenance out of the impartible estate of Devarakota. One of the plaintiff's in those suits was Anantha Sridharam-father of the plaintiff. The suits were withdrawn. Ankineedu Prasad II-father of the defendant-died in 1928. One of the plaintiff's in those suits was Anantha Sridharam-father of the plaintiff. The suits were withdrawn. Ankineedu Prasad II-father of the defendant-died in 1928. The plaintiff having been denied a right to maintenance instituted suit No. 88 of 1947 on the file of the Sub-ordinate Judge, Masulipatam for a declaration that the plaintiff-had a right to be maintained out of the impartible estate of Devarakota and its accretions and that the defendant who was the holder of the impartible estate was bound to pay to the plaintiff maintenance at the rate of Rs. 500/- per month with interest at the rate of 6% per annum. The claim in the suit was based on three grounds: (a) that the Devarakota estate was joint family property of the plaintiff and defendant; (b) that there exists a custom or usage in the family entitling the plaintiff, though not the son of the last holder to maintenance; and (c) that the plaintiff-is entitled to maintenance under the provisions of the Madras Impartible Estates (Second Amendment) Act, 12 of 1934. 4. The defendant pleaded that the impartible estate and its accretions had ceased to be joint family property of the plaintiff and the family of the defendant, since the plaintiff's father as representing his branch of the family and the defendant as representing the estate entered into a family arrangement which was recorded in suit No. 31 of 1925 on the file of the District Court, Krishna as a result of which the plaintiff's father had renounced and surrendered the right of succession of the members of his branch to the estate, and the plaintiff could not on that account claim to be maintained out of the impartible estate. It was also contended by the defendant that the claim of the plaintiff under the provisions of the Madras Impartible Estates (Second Amendment) Act 12 of 1934 was not maintainable as the estate of Devarakota had ceased to be joint family property, and that in any event the rate at which maintenance was claimed was excessive, the estate being unable to bear a burden exceeding Rs. 50/- per month as maintenance to the plaintiff. 5. 50/- per month as maintenance to the plaintiff. 5. During the pendency of the suit the estate of Devarakota was notified under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 26 of 1918' and the defendant filed an additional written statement contending that the impartible estate of Devarakota had been handed over to the Government of Madras on September 7, 1949 in pursuance of the notification issued in that behalf and as the Impartible Estates Act 2 of 1904 stood repealed by Act 26 of 1948, the plaintiff's claim based on the Impartible Estates Act would no longer be enforced. Holding that he had no jurisdiction in the matter the Subordinate Judge ordered that the plaint be returned for presentation to the proper Court. 6. The plaintiff appealed to the High Court of Madras. The High Court remanded the suit with a direction that the plaintiff's claim for maintenance upto September 7, 1949 the date of the notification issued under Act 26 of 1948 was maintainable and the Civil Court had jurisdiction to entertain that claim. 7. The Subordinate Judge thereafter heard the suit on the other issue, viz. whether the family arrangement set up by the defendant with the-plaintiff's father was true, valid and binding on the plaintiff, and if the plaintiff was entitled to maintenance, the rate at which the maintenance should be awarded. The Sub-Judge held, inter alia that the right which a junior member of a family has in an impartible estate "is a real and valuable right and is not a mere spes succession is" and renunciation of that right amounts to a release of his right as against the impartible estate within the meaning of Art 55, Sch. I of the Indian Stamp Act and as the memorandum evidencing an arrangement in that behalf was not stamped as required by that Article, certified copies thereof produced by the defendant at the trial were not admissible in evidence for any purpose. I of the Indian Stamp Act and as the memorandum evidencing an arrangement in that behalf was not stamped as required by that Article, certified copies thereof produced by the defendant at the trial were not admissible in evidence for any purpose. The learned Judge also held that the other evidence adduced by the defendant did not establish that in consequence of renunciation of the rights by the plaintiff's father, the estate of Devarakota had become the exclusive property of the defendant, that the evidence did not show that the plaintiff's father gave up or renounced the right to succeed by survivorship to the estates on behalf of himself or on behalf of his branch and that the evidence did not establish that the renunciation or surrender of the right by the plaintiff's father, even if true, operated to extinguish or put an end to the right of the plaintiff as a junior member to succeeds to the estate by survivorship, if ever a state of affair came to pass when that claim could be made. Holding that the plaintiff was not entitled to maintenance by virtue of any custom, but that he was entitled to maintenance as a junior member under section 9 of the Impartible Estates Act, 1904, the learned Judge awarded to the plaintiff maintenance at the rate of Rs. 100/- per month' till September 7, 1949. For the period after that date he declared that the plaintiff's claim based on section 9 of the Impartible Estates' Act was not maintainable in the Civil Court, and the proper forum for agitating that question was provided in Act 26 of 1948. 8. The learned Judge did not direct any charge to be created upon the estate because the estate had ceased to exist by the operation of Act 26 of 1948. Against the decree of the Trial Court, the defendant appealed to the High Court of Andhra Pradesh, and the plaintiff filed a memorandum of cross objections against the decree appealed from. The learned judges of the High Court substantially agreed with the Trial Court. Against the decree of the Trial Court, the defendant appealed to the High Court of Andhra Pradesh, and the plaintiff filed a memorandum of cross objections against the decree appealed from. The learned judges of the High Court substantially agreed with the Trial Court. They held that the certified, copies of the memorandum relied upon by the defendant were inadmissible in evidence as the originals were not duly stamped and by payment of penalty the defect could not be cured as the originals were not produced, that there was no other evidence to prove that the plaintiff's father had on behalf of himself and his branch relinquished the right of survivorship to the estate, and accordingly the plaintiff's right to maintenance was not lost. The High Court declined to interfere with the rate of maintenance awarded by the Trial Court. Against the decree passed by the High Court, these two appeals have been preferred to this Court. Appeal No. 572 of 1962 being by the original plaintiff and appeal No. 573 of 1962 by the original defendant. 9. The first question which falls to be determined is whether the plaintiffs father had by a family arrangement renounced the right of his branch to claim the estate by survivorship and that by that arrangement the estate had become the separate property of the defendant. The Courts below have held that apart from the copy of the memorandum produced in suit No. 31 of 1925 there was no other evidence which proved any such family arrangement. That conclusion must be accepted by this Court, and counsel appearing on behalf of the defendant did not make any serious attempts to challenge that finding before us. The defendant had sought to rely upon a document Ext. B-1 which is an office note in the record of the defendant put up for sanction for payment of Rs. 1,25,000/- to the plaintiff's father and his three uncles. This note contained a statement that the amount was paid as consideration forgiving up the Coparcenary rights to all the properties relating to the Devarakota estate. But to this office note the plaintiff was not a party. The person who prepared that note was not examined. It had therefore no probative value The oral evidence led by the defendant was of two witnesses. But to this office note the plaintiff was not a party. The person who prepared that note was not examined. It had therefore no probative value The oral evidence led by the defendant was of two witnesses. D.W. 1 Vasireddi Chandra Mow-leswara Rao stated that in the maintenance suit filed by the plaintiff's father and his uncles the witnesses had at the request of the plaintiff's father agreed to speak to the Zamindar for settlement of the disputes. Thereafter according to the witness there were negotiations as a result of which all the disputes were settled and the plaintiff's father and his uncles withdrew the suits filed by them after receiving Rs. 1,25,000/-. He further stated that at the time of the settlement by way of compromise, it was arranged that there should not be any disputes whatsoever in future regarding the hereditary rights and maintenance by the plaintiff's father or his uncles. According to this witness the plaintiff's father and his uncles were never joint with the defendant and that consideration of Rs. 1,25,000/- was given to settle future disputes and not for renunciation of the rights of the plaintiff's father or of his branch to the impartible estate. D.W. 2 Budhiraju Sreeramulu who was a "suits clerk" of the defendant at the material time deposed that in suits Nos. 30 to 33 of 1925 a settlement was arrived at and "on that day the plaintiffs father and his brothers were paid Rs.1,25,000/- and a draft memorandum was prepared in that behalf by Y. Dakshinamurthi Sastry. The witness stated that no consideration was paid for withdrawing the suits. There is nothing to show in the evidence that there was any agreement to renounce the right of the plaintiff to the estate. Counsel for the defendant, however, strongly relied upon Ext. B-88 a copy of the memorandum filed in the suit No. 31 of 1925. The witness stated that no consideration was paid for withdrawing the suits. There is nothing to show in the evidence that there was any agreement to renounce the right of the plaintiff to the estate. Counsel for the defendant, however, strongly relied upon Ext. B-88 a copy of the memorandum filed in the suit No. 31 of 1925. The memorandum recited: "In view of the extreme difficulty the plaintiff has experienced and anticipates in establishing the family usage and the territorial custom on which the plaintiff based his claim for maintenance of the 2nd and succeeding generations and the other issues of fact and law involved in the case, and in view of the enormous expenditure of money, time x x x x necessary for continuing the litigation up to the Privy Council and the uncertainty of the ultimate result of the protracted litigation and in pursuance of the imperial decision, after a careful consideration of the pleadings and evidence in the cases and the further representations of the parties, about their respective contentions before the selected arbitrator M.R. Ry. Sree Raja Vasireddi Chandra-mouleswara Prasad Bahadur Garu, the present Zamindar of Impartible estate of Chintalpati Vantu who is the common relation held in high esteem and respect by the parties to the effect that there is no family usage or territorial custom entitling the 2nd and succeeding generations of the plaintiff's branch to any maintenance or any other provision at the hand of the holder of the impartible estate of Devarakota, the plaintiff is advised to and does hereby withdraw the suit and submit that the same may be dismissed in respect of all reliefs claimed in the suit without costs. The plaintiff takes leave to report and place on record as a separate and distinct transaction quite apart from and independent of the above withdrawl of the claim for maintenance in the suits, the fact that he and the plaintiffs in O.S. No. 31, 32, 33 of 1925 have equivocally declared and communicated to the 2nd defendant as the representative of the defendants branch, their intention to sever and the fact of their actual and voluntary severance of their coparcenary rights of succession, if any outstanding so that there may be no possible disputes and wasteful litigation concerning succession to the impartible estate of Devarakota being the joint and ancestral property between the branches of the plaintiff and defendants. For securing a lasting harmony peace and goodwill by removing all contingencies of wasteful litigation by the plaintiffs giving up their supposed coparcenary rights of succession which may be contended to be outstanding, the 2nd defendant as the holder of the impartible estate of Devarkota and the representative of the defendant branch of the family has, on the advice and recommendation of the said Raja of Muthyala, Zamindar of Chintalapati Vantu given a sum of Rs. 1,25,000/- to the plaintiffs in all the suits (O.S. Nos. 30 to 33 of 1925) jointly which they gratefully acknowledge hereby and undertake to distribute as they like and agree among themselves without any reference to the 2nd defendant". 10. Pursuant to this memorandum it is stated that the suit filed by the plaintiff's father was withdrawn. 11. Paragraph-3 of the memorandum Ext.B-8 recites that all the plaintiffs gratefully acknowledge the receipt of an amount of Rs. 1,25,000/- Rs. One lakh twenty five thousand only). That indicated that the document was intended to serve as an acknowledgment of receipt of Rs. 1,25,000/-. It also contained an undertaking to distribute the amount among the three recipients. Whether as a receipt or as an agreement, the original of the memorandum had to bear stamp duty to be admissible in evidence. The document was also intended to be made the repository for evidence of the renunciation of rights to the impartible estate for the, consideration stated, and amounted to a release of the claim of the plaintiff in suit No. 31 of 1925. 12. Section 17 of the India Stamp Act 'provides: "All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution." By Section 3 it is provided that: "Subject to the provisions of this Act and the Exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefor respectively, that is to say :- (a) Every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or after the first day of July, 1899. (b) x x x (c) x x x 13. Article 55 of Sch. 1 of the Stamp Act prescribes the stamp duties in respect of documents of release. (b) x x x (c) x x x 13. Article 55 of Sch. 1 of the Stamp Act prescribes the stamp duties in respect of documents of release. The memorandum of which Ext; B-7 purports to be a copy had therefore to be stamped as acknowledgment of receipt for the consideration of Rs. 1,25,000/-, as an agreement in respect of the distribution of the amount among the persons to whom it was "paid, and as document evidencing renunciation of the rights in the impartible estate. But it was not stamped. The Stamp Act makes no exemption in respect of documents which are filed in Court and form part of Court proceedings from liability to Stamp Duty. If the original document was produced in court the defect could have been rectified by payment of penalty. But the original was never produced. Section 36 of the Stamp Act, in so far as it is material, provides :- "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": 14. There is therefore a bar against the admission of evidence of any instrument which is chargeable with duty if it has not been duly stamped. It it now settled law that the document which may be admitted in evidence on payment of penalty is the original document and not a copy thereof. In The State of Bihar v. M/s. Karamchand Thaper & Brother Ltd., 1962 1 SCR 827 this Court held referring to the Judgment of the Privy Council in The Rajah of Bobbili v. Inuganli China Sitaramaswami Garu, ILR 23 Mad. 49 : L.R. 26 IA 262 (P.C.) that copy of an instrument not duly stamped cannot be admitted in evidence after payment of penalty. 15. It appears that it was the case of the defendant that the suits were disposed of pursuant to the memorandum Ext. B-8 filed in Court in Suit No. 31 of 1925. The original of the memorandum was never summoned nor produced; it was represented to the Court that this could not be produced as the original had been destroyed under the rules for destruction of records. That was, however, not accepted by the plaintiff. B-8 filed in Court in Suit No. 31 of 1925. The original of the memorandum was never summoned nor produced; it was represented to the Court that this could not be produced as the original had been destroyed under the rules for destruction of records. That was, however, not accepted by the plaintiff. Exhibit B-8 is merely a certified Copy and there is no reliable evidence on the record that the original was lost or destroyed. In the absence of any such evidence the certified copy of the document was not admissible in evidence. It may be mentioned that Ex. B-7 was only provisionally marked for identification, and it was not admitted on the record. The documents being inadmissible, both on the ground that a certified copy is not admissible unless the original is proved to have been lost or destroyed or is otherwise not available and also on the ground that the original being unstamped secondary evidence thereof is inadmissible in evidence even on payment of penalty. There is therefore no evidence on the record to prove that the plaintiff's father had renounced or surrendered the right of the plaintiff to take the estate by survivorship or that the joint family between the plaintiff and the defendant has ceased to exist. 16. The only other question which remains to be considered is about the quantum of maintenance to be awarded to the plaintiff. Under Section 10 of the Impartible Estates Act, in determining the amount of maintenance payable to persons mentioned in Section 9, the Court shall, inter alia, have regard to the following considerations, namely (1) the net income of the estate; (2) the number of persons to be maintained out of the estate; (3) the nearness of relationship of the present claimant for maintenance; (4) other sources of the claimant; and (5) the circumstances of the family of the claimant. 17. It is further provided by sub-s (2) of section 10 that the maintenance shall be so fixed that the total amount payable out of the estate by way of maintenance to the relations under Section 9 shall not exceed ?th of the net income. 18. The defendant did not produce the books of account relating to the management of the estate. 18. The defendant did not produce the books of account relating to the management of the estate. The net income of the estate was a matter within his special knowledge and the plaintiff being a junior member of the family could not have any information about the same. It is true that in a suit for maintenance, the burden of proving the rate at which the maintenance should be awarded to the claimant lies in the first instance upon the claimant, but where, the evidence which has a bearing on the rate of maintenance is within the special knowledge of the defendant and he voluntarily withholds that evidence, the Court would be justified in raising an adverse inference against the defendant that if that evidence is produced, it would be contrary to his claim. The defendant in his written statement merely stated that the maintenance at the rate of Rs. 50/- per month would be adequate. DW. 2 examined on behalf of the defendant did not speak about the income of the estate. He merely deposed that on the issue of the notification dated September 7, 1949 a manager had been appointed and the estate had been taken over by the Government. The defendant pleaded that all his documents and records had been taken away by the manager appointed under Act 23 of 1943 and therefore he was unable to lead evidence. This was evidently a ruse on the part of the defendant to withhold material evidence. It would not have been difficult for him event at the late stage at which he filed the memorandum stating that the documents had been taken away to secure production of those documents for proving what the net income of the estate was. The trial Court after taking into consideration the rate of maintenance awarded in the earlier suits and also taking into consideration the fact that the plaintiff was a great grandson of the common owner thought that the maintenance should be awarded at the rate of Rs. 100/- per month. This rate has been confirmed by the High Court. We may observe that the rate at which the maintenance has been awarded is only upto September 7, 1949. 100/- per month. This rate has been confirmed by the High Court. We may observe that the rate at which the maintenance has been awarded is only upto September 7, 1949. Having regard to the large estate the other circumstances and the evidence including the rate at which maintenance has been awarded to other members of the family, and having regard also to the conduct of the defendant and his failure to produce before the Court evidence which was in his possession or within his power, we direct that maintenance be awarded to the plaintiff at the rate of Rs. 200/-per month from the date of the suit till September 7, 1949. The amount of maintenance awarded will stand charged upon the Estate. 19. We accordingly partially allow the appeal filed by the plaintiff and dismiss the appeal filed by the defendant. The plaintiff will be entitled to costs proportionate to his success in this Court and in the High Court. There will be no order as to costs in the appeal filed by the defendant. Appeal partly allowed.