JUDGMENT V.R. Krishna Iyer, J. 1. Counsel for defendants 2 to 7 (who are the appellants in this second appeal) has argued a sterile point of law arising under S.35 of the Kerala Stamp Act (corresponding to S.36 of the Indian Stamp Act) challenging the view taken by the courts below that a copy of an insufficiency stamped or an unstamped instrument, admitted in evidence, cannot be acted upon or even regarded as admitted in evidence notwithstanding its exhibition as a document in the case. Sterile, I say, because some legal questions have large social stakes while others are barren of social benefit but provide scope for legal ingenuity, subtle forensic exercise and speculative litigation as in this case. This later class of legal point, if beset with judicial conflict, must be settled by legislative action in time unless the Supreme Court pronounces upon it in the meanwhile. 2. The plaintiff brought a suit for recovery of possession of the suit property, on the strength of his title, from defendants 1 to 4 who were alleged to be trespassers on the land. The jenmi of the property is one Meledathu Mana which leased the land on verumpattom right to another, by name Velappan. This latter assigned his right to his son Parangodan who, in turn, transferred the leasehold to the plaintiff. The plaintiff claimed to have obtained actual possession under this deed dated 17- 11-1960. While he was thus in possession, defendants 1 to 4 trespassed into the property on 20-4-1961 whereupon this suit for recovery of possession was brought. The defendants raised various contentions with which we are not very much concerned in the present appeal. However, they pleaded that Parangodan had executed an agreement to assign the property in favour of the 2nd defendant and had passed a letter dated 2-4-1960 embodying the terms of the agreement. He had also passed possession of the property to the 2nd defendant pursuant to the agreement. It is also seen that subsequent to the institution of the suit a regular assignment deed was executed (Ex. B7) dated 24 1 1962 to the 2nd defendant and thus he has validly become the lessee of the property. He had also passed possession of the property to the 2nd defendant pursuant to the agreement. It is also seen that subsequent to the institution of the suit a regular assignment deed was executed (Ex. B7) dated 24 1 1962 to the 2nd defendant and thus he has validly become the lessee of the property. If, as a matter of fact, there was a valid agreement to sell in favour of the 2nd defendant even earlier to the assignment of leasehold right to the plaintiff and pursuant to it he had been put in possession, may be, the plaintiff may have serious difficulties in getting a decree. The decisive factor in the case, therefore, is the factum of the agreement alleged to have been executed by Parangodan in favour of the 2nd defendant. A copy of the said agreement has been exhibited in the case as Ex. B1. When the original was produced in court it was discovered to be an unstamped instrument and was impounded under S.34 of the Kerala Stamp Act (for short, called the Act). Instead of paying the stamp duty and penalty the defendants cannily applied for a certified copy of the document from the court and produced it as evidence. So far as the records disclose or counsel are aware, the stamp duty and penalty not having been paid, the original agreement remains impounded. However, the defendants pressed into service the certified copy, to prove the alleged agreement to sell in their favour and at a moment when foresnsic alertness had fallen asleep this copy was marked as Ex. B1 in the suit. The plaintiff urged later that on account of the ban contained in S.34 the original of Ex. B1 was neither admissible in evidence nor capable of being acted upon and the copy Ex. B1 necessarily had to share the same fate, and that even if it had been inadvertently admitted in evidence it could not be relied upon as evidence or acted upon by the court to refuse a decree to the plaintiff. Of course, the plaintiff also took up the stand that Ex. B1 had not been admitted in evidence in the manner the law requires. The learned Subordinate Judge, after setting out the facts relating to Ex. B1, cryptically observed: "In the circumstances, Ex. Of course, the plaintiff also took up the stand that Ex. B1 had not been admitted in evidence in the manner the law requires. The learned Subordinate Judge, after setting out the facts relating to Ex. B1, cryptically observed: "In the circumstances, Ex. B1 cannot be treated as evidence." Although the judgment is bereft of any discussion on the point or reference to precedent, I am satisfied that the conclusion reached by the learned Subordinate Judge is sound. 3. It may be useful to formulate the few points for decision: (1) If the original instrument is available but is inadmissible or is inhibited from being acted by statute can a copy of that instrument be admitted or acted upon. (2) If a copy of an unstamped instrument has been admitted in evidence, does the immunity from further challenge conferred by S.35 of the Act protect such copy ? (3) If a document is admissible in evidence, when can it be said that it has been admitted in evidence so as to preclude its admissibility being assailed on account of S.35 of the Act? 4. I shall tread through the jungle of rulings which surround the subject although the ultimate feeling at the end of it all is that some simple amendment of the law would have eliminated the complex controversy which does nobody any good. 5. The question whether Ex. B1 has been admitted in evidence within the meaning of S.35 has to be considered first, for if it has not been so admitted, perhaps none of the other questions arise. O.13 R.4. Civil Procedure Code states that. There shall be endorsed on every document which has been admitted in evidence in the suit the following particulars viz., (a) .................... (b) .................... (c) .................... O.13 R.4. Civil Procedure Code states that. There shall be endorsed on every document which has been admitted in evidence in the suit the following particulars viz., (a) .................... (b) .................... (c) .................... (d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge." The Judicial Committee in Sadik Hussin Khan v. Hasim Ali Khan (43 IA No. 212) observed that: "Their Lordships, with a view of insisting on the observance of the wholesome provisions of these statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required" This highlights the importance of the endorsement of admission in evidence of a document prescribed by O.13, R.4 C. P. C. Of course, there is some controversy on the consequence of a document having been treated as evidence but not bearing the endorsement required. Some courts have held that a document tendered in evidence and admitted without objection cannot be excluded merely because no exhibit mark has been given to it or no endorsement has been made and signed as required by this rule. Other rulings have taken the view that documents admitted on the record without making the requisite endorsement cannot be regarded as illegally admitted. Of course, there are two stages in the production and exhibition in evidence of a document. First, it is put into court and next it is tendered in evidence and marked as an exhibit. It is only at the second stage that a document is admitted in evidence. Merely marking a document mechanically at the threshold of a trial (as sometimes is done) is not admitting it in evidence, which is a conscious act of the court after applying its mind, in some measure, to the question. It is only at the second stage that a document is admitted in evidence. Merely marking a document mechanically at the threshold of a trial (as sometimes is done) is not admitting it in evidence, which is a conscious act of the court after applying its mind, in some measure, to the question. In Ahmed Pillai Meera Sahib v Sankaran Madhavan (AIR 1957 Kerala 105) Joseph J. held that "This rule (O.13 R.4 of the Code of Civil Procedure) enjoins a duty on the court admitting a document in evidence to endorse thereon, among other things, a statement that the document has been admitted in evidence." In the case before His Lordship, the defendant had raised the objection in his written statement regarding the admissibility of the promissory note on the ground that it was insufficiently stamped and His Lordship observed that there was no proper endorsement of admission in evidence, "so that it cannot be said that the document was ever admitted in evidence." Joseph J. was further inclined to the view that . unless the court admitted a document after applying its mind consciously to the question whether the document was admissible or not, it could not be deemed to have been admitted in evidence. His Lordship assented to the proposition laid down by Wanchoo C. J. (as he then was) in Ratnalal v Isudas ( AIR 1954 Raj. 173 ) which may be extracted here: "A careful review, therefore, of the authorities leads us to the conclusion that once an instrument has been admitted in evidence, either after judicial determination of the issue relating thereto, where such issue has been raised, or because no objection was taken to its admissibility, but not by pure mistake, such admission cannot be called in question at any stage of the same suit or proceeding on the ground of insufficiency of stamp." I have no doubt in my mind that where the opposite party has raised objection to the admissibility of a document, unless there is something on record to indicate that the Judge has consciously admitted the document in evidence after applying his mind to the question, the mere fact that the document has been marked (quite often provisionally and subject to the decision on the objection) is not tantamount to admitting the document in evidence. The ruling in Sri Yerri Swami v Nadiga Chinna Vennurappa (AIR 1949 Madras 300) also supports this view although in Nalluru Basavaiah Naidu v Takkella Venketeswarulu ( AIR 1957 AP 1022 ) it has been observed that when there is no order rejecting a document tendered in evidence and, on the other hand, it is marked as an exhibit, it must be taken to have been admitted in evidence without further going into the question whether the Judge had applied his mind or not. It must be stated in recognition of counsel's efforts that processions of judicial pronouncements rally behind both view points. One cannot give ritualistic importance to the marking of a document or to the stamping on it of the particulars prescribed in O.13 R.4 C.P.C. The presence or absence of either of these totems cannot decide the question whether the document has been actually admitted in evidence. What we must adopt is not a totemic test but an actual ascertainment whether the Judge, has, may be carelessly or mistakenly but consciously, admitted the document as evidence in the case. However, what is expected is not an elaborate search but a prima facie conclusion. In the present case, the formalities of O.13 R.4 C. P. C. appear to have been complied with and if one were to go by the decision in Perimi Chakrapani Naidu v Mattapalli Venkataraju (AIR 1938 Madras 958) the rubber stamp with the initials of the Judge will be sufficient to treat the document as admitted in evidence. Maybe, in the present case, by oversight, the plaintiff failed to raise objection to the copy, Ex. B1, and the Judge, without adverting to the fact that the original has been impounded by him, has admitted the document in evidence. I am not prepared to say that Ex. B1 has not been admitted in evidence when, prima facie, the particulars required have been duly stamped and the Judge has duly initialled. Indeed, a detailed enquiry as to whether the Judge has applied his mind before admitting the document is embarrassing, delicate and difficult of solution in many cases and the Legislature did not contemplate it at all, in my view. Indeed, a detailed enquiry as to whether the Judge has applied his mind before admitting the document is embarrassing, delicate and difficult of solution in many cases and the Legislature did not contemplate it at all, in my view. The affixing of the seal with the necessary endorsements and the signature of the Judge, prima facie, (and subject to clear indications to the contrary) raises the presumption that the document has been duly admitted in evidence. In the present case, I hold that Ex. B1 which bears the endorsement has been admitted in evidence, nothing to contra indicate it being evident. 6. Now to the Stamp Act. Broadly considered, an objection under the Stamp Law should really proceed from the State whose revenues may be affected and not from a private party who has no direct interest in protecting the public revenue but is using it as a legal contrivance to wriggle out of an otherwise honest obligation. Ramesam J., dealing with an objection, as has been raised here, observed in Konakalla Rama Rao v Nallari Pitchayya (AIR 1927 Madras 786)" "After all, as Parsons, J. has pointed out, the Stamp Act is a fiscal provision; its object is to collect revenue and its object has been satisfied in this case. The Government has its revenue, and there is nothing absurd in the plaintiff being given a decree." Viswnatha Sastri J. rightly remarked, in AIR 1957 AP 1022 : "The object of the Stamp Act is to provide revenue for the State and not to arm a litigant with a weapon of defence and S.36 proceeds on that basis. If the objection as to the defective stamping is not taken or is overruled and the document is admitted in evidence, the matter stops there and neither the parties nor the Court can thereafter agitate the question of its admissibility." Krishna J. in Vinayak Dattatraya v Hasanali Haji Nazarali ( AIR 1961 MP 6 ) frowned upon objections, based upon the Stamp Act, to the admissibility of documents and stated: "After all, this is a matter primarily between the State and the litigant. Certainly, the opposing litigant can take advantage of this and remind the Court of its own duties in this regard of seeing that the taxpayer is not cheated. Certainly, the opposing litigant can take advantage of this and remind the Court of its own duties in this regard of seeing that the taxpayer is not cheated. But the law does not enable, and in my opinion should not enable, the over zealous opposing litigant sidetracking the dispute merely by repeatedly insisting upon apparent or real deficiencies of stamp duty, when the Court itself having considered it once, finds that the tax payer's interests have either not been affected or have been adequately safeguarded." It is thus obvious that the object of the Stamp Law is to raise revenue for the State and S.34 is calculated to safeguard its interests. The non admissibility of a document acts as a disincentive to dodging stamp duty and is only meant to force payment. And so, when the private litigant objects under S.34 of the Act the court's vigilance is aroused; nothing more. However if the object is "to collect revenue, one wonders why S.35 gives a reprieve of sorts to instruments which have wrongly been brought on record, encouraging, as an end result, indifference to the collection of revenue and legal quibbles of varied shades. If stamp duty is leviable upon a document, why should the fact that it has been wrongly admitted in evidence put the party in default in a better position than one who diligently pays the stamp duty and the penalty too? This anomaly deserves legislative scrutiny. Let me at the outset extract, omitting unnecessary portions, S.34 and 35 of the Stamp Act with which we are concerned in this case: "34. Instrument not duly stamped inadmissible in evidence, etc. This anomaly deserves legislative scrutiny. Let me at the outset extract, omitting unnecessary portions, S.34 and 35 of the Stamp Act with which we are concerned in this case: "34. Instrument 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 not being an instrument chargeable with a duty of twelve naye paise or less than twelve naye paise shall, subject to all just exceptions, 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 limes the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; ........................... 35. Admission of instrument where not to be questioned: Where an instrument has been admitted in evidence such admission shall not, except as provided in S.59, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." 7. The original of Ex. B1 is admittedly hit by S.34 and it has been impounded by the court on this score. The defendant has not chosen to comply with the demand for duty and penalty. Having failed in this obligation to the State, he has hit upon an ingenious device of applying for a copy from the court and producing it as evidence in the same suit. Having been admitted as evidence in the case, it is now beyond assail in view of S.35 of the Stamp Act, according to the counsel for the appellant. But the question remains whether, when the original has been excluded by the court, a copy can claim a privilege which the original does not enjoy. Having been admitted as evidence in the case, it is now beyond assail in view of S.35 of the Stamp Act, according to the counsel for the appellant. But the question remains whether, when the original has been excluded by the court, a copy can claim a privilege which the original does not enjoy. If it can be done, the circumvention of the legal provision receives court sanction, I do not think the law allows it although I must confess that many decisions can be and have been cited in support of the opposing view points. 8. Let us first consider under what circumstances, if at all, secondary evidence is permissible when the original is shown to be unstamped or insufficiently stamped and is, therefore, inadmissible under S.34, and secondly, whether the ban under S.34 and the invulnerability under S.35 will extend to copies. These questions have been elaborately dealt with in a ruling reported in 1967 (2) AWR 444 by Mr. Justice Ekbote and, if I may say so with great respect, I agree with the reasoning of His Lordship in that decision. S.17 makes it obligatory that "All instruments chargeable with duty and executed by any person in the State of Kerala shall be stamped before or at the time of execution." An 'instrument' means a document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded and it is difficult to hold that a copy of an instrument is itself an instrument. The copy does not create or extinguish or otherwise affect any right or liability. It is the original that produces these legal results. S.34 deals with instruments chargeable with duty and, therefore, necessarily contemplates original deeds only. Moreover, the proviso (a) to that Section relates to payment of duty and penalty thereon. The other provisos to S.34 also emphasise the presence of the original instrument in court. S.35 refers to such instrument as are covered by S.34 and confers a certain immunity from being called in question regarding admissibility at any later stage of the suit or proceeding, on the ground that the instrument has not been duly stamped. S.34 and 35 are interconnected and must be read together as relating to the same instruments. And if S.34 relates to the original document only, S.35 also must be read likewise. S.34 and 35 are interconnected and must be read together as relating to the same instruments. And if S.34 relates to the original document only, S.35 also must be read likewise. In my view, reading S.2(j) defining instrument, S.17 laying down when an instrument has to be stamped, S.34 which provides for impounding of instruments not duly stamped and S.35 which insulates from attack instruments once admitted in evidence, you reach the conclusion that S.35 does not have any reference to copies at all and the freedom from further challenge on the score of absence or insufficiency of stamp is available only to original instruments. 9. If S.35 has no reference to copies, then, it follows that a valid objection could be raised to its non admissibility for two reasons. If the original is not admissible because it has not complied with the stamp law, a copy thereof cannot be in a better position. Otherwise, it will lead to the strange result that a party who has defeated public revenue can still circumvent the public policy of the law by keeping back the original and producing a copy thereof. Of course, there will be a few cases of hardship where the original is lost, destroyed or is suppressed by the objecting party himself and the party who wants to produce the copy and who might be willing to pay the duty and penalty on the original is unable to get the benefit of S.34 for no default of his. Indeed, the objecting party, when summoned to produce the original in his custody, may keep it back and when the party who wants to rely on the document produces a copy may be handicapped from exhibiting it in evidence if it is shown that the original is not duly stamped (even though he may be prepared to pay what the amount S.34 requires). But hard cases cannot make bad law and it will be extremely anomalous if, as in the present instance, the original is produced in court and, for non payment of stamp duty, is impounded and excluded from evidence, a copy can find its way into the pool of evidence in the case almost unwittingly and then S.32 rescues it from subsequent reproach. There is another reason why the copy cannot be marked. There is another reason why the copy cannot be marked. S.62 of the Evidence Act deals with secondary evidence and enumerates the circumstances in which secondary evidence may be given of a document. If the primary evidence is available but on account of legal derects cannot be admitted in evidence, secondary evidence cannot be given. Where the primary evidence itself is tabooed, secondary evidence cannot enjoy a better status. Again, S.65 proceeds on the essential basis that the primary evidence is itself admissible. And so a copy is, and ought to be, subject to all the infirmities of the original. 10. Two pronouncements of the Supreme Court give guidance to a proper solution of the issues arising in this appeal. The first reported in 1961 SC 1655 (AIR ) certainly lays down that once a document is admitted, notwithstanding its being not duly stamped, it is invulnerable, in the subsequent stages, to objection for absence or insufficiency of stamp. The second, which is more significant for this case, is State of Bihar v M/s Karam Chand Thaper & Bros. Ltd. ( AIR 1962 SC 110 ) where Venkatarama Iyer J. observed: "It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. ....... Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, a certified copy', and that under S.35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and 'acted upon' and that in consequence no decree could be passed thereon. The law is no doubt well. settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v Inugenti China Sitaramasami Garu, 26 Ind. App. 262, where it was observed: "The provisions of this section (S.35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and accordingly secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents. Therefore, the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof." Thus, their Lordships ruled that a copy could not be validated under S.35 of the Indian Stamp Act although, in the case before the court, what purported to be a certified copy of the award was held to be the original and, therefore, amenable to validation. S.34 of the Kerala Act (corresponding to S.35 of the Central Act) banishes the original if not duly stamped and, on the authority of the Privy Council and the Supreme Court, the claim of a copy of such instrument to admissibility has to be negatived. The fate of a copy or of any other secondary evidence when the primary instrument is itself hit by S.34 has been the subject of several cases. For instance, in the decision reported in Polavarthi Venkata Subha Rao v Jupudi Kesava Rao (1967 (2) AWR 444). His Lordship Ekbotte J. presented the contention of Mr. D. Narasuraju thus: "He further contended that S.35 has nothing to do with the admissibility of secondary evidence. What secondary evidence is admissible and when is governed by the provisions of the Indian Evidence Act. He therefore urged that once the document is not before the Court, S.35 becomes inapplicable and secondary evidence, if permissible under S.65 of the Indian Evidence Act, ought to be received and acted upon." His Lordship answered the question thus: "I do not think there is any force in this contention. ....... The expressions 'acted upon' and 'for any purpose' are emphatically clear. They clearly point out that in no case if the document is insufficiently stamped it can be acted upon unless the requirements of S.35 are fulfilled. Such an acting upon the instrument may be when the document is before the Court or even when it is not before the Court. They clearly point out that in no case if the document is insufficiently stamped it can be acted upon unless the requirements of S.35 are fulfilled. Such an acting upon the instrument may be when the document is before the Court or even when it is not before the Court. In either case it cannot be acted upon, whether that instrument is proved by primary evidence, by production of the document itself or by secondary evidence such as admissible under S.65 of the Evidence Act. In the first case, when the document is produced it can be admitted provided the requirements of S.35 are fulfilled. But if the document is not before the Court, when it is found that it is insufficiently stamped admission of secondary evidence would practically amount to acting upon an insufficiently stamped document which is quite contrary to the imperative language of S.35." If this view were correct -- and I agree with it -- I cannot act upon the copy, Ex. B1, because, that would virtually be acting upon the original, contrary to the injunction contained in S.34 of the Act. For, S.35 of the Act only insulates the document against attack on the score of inadmissibility in evidence but does not ensure its being acted upon. The two concepts may to some extent overlap but are different, all the same. To dismiss the plaintiff's suit because Ex. B1 or its original creates an agreement to sell in favour of the defendant, is to act upon the instrument. 11. Dealing with the admissibility of secondary evidence when the primary evidence is under eclipse, as it were, the learned Judge observed: "But where the original is not duly stamped, it is now clear that no stamp duty or penalty can be levied upon any kind of secondary evidence. S.35 requires the levy of penalty and stamp duty only in a case where the original is before the Court, that is to say, the stamp duty and penalty are leviable only on the original and not on secondary evidence. When that is not possible, when the original is either destroyed or even suppressed by anyone of the parties, no secondary evidence is possible in regard to such an unstamped or insufficiently stamped document. The reason is that the secondary evidence is only admissible where primary evidence is admissible. When that is not possible, when the original is either destroyed or even suppressed by anyone of the parties, no secondary evidence is possible in regard to such an unstamped or insufficiently stamped document. The reason is that the secondary evidence is only admissible where primary evidence is admissible. Furthermore, the admitting of secondary evidence of a document not duly stamped would be equivalent to 'acting on such documents which is prohibited by S.35. When once it is realised that it is only the original of an instrument which can be admitted in evidence on payment of deficit duty and penalty, then it presents no difficulty in reaching the conclusion that if the original is not before the Court and if it is insufficiently stamped, no secondary evidence can be admitted even on payment of deficit duty and penalty. It matters in my judgment very little where the document is lost because of the negligence of any party or is destroyed by the wrongful act of a party. It is also in my opinion immaterial whether a party objecting to the admissibility of the parol secondary evidence has himself suppressed or destroyed the document." Of course, Ekbote J. proceeds to observe that it is the duty of a party to a document to see that it is properly stamped lest he should later suffer for the deed not being duly stamped. Of course, if all that the State is anxious to protect is its revenue, I see no reason why legislative provision should not be made to collect the duty and penalty when secondary evidence is offered and admitted. Otherwise, the opposite party, by suppressing the original, may gain an advantage which he does not deserve and also, in some cases, the misfortune of the loss or destruction of the original for reasons beyond the control of the party may deny to him the privilege of payment of duty and penalty which others similarly placed may claim. Nothing is lost, so far as I can see, by amending S.34 of the Act to provide for levy of duty and penalty on the copy when the original is not available and secondary evidence is tendered. Nothing is lost, so far as I can see, by amending S.34 of the Act to provide for levy of duty and penalty on the copy when the original is not available and secondary evidence is tendered. Nor am I able to discern any great virtue in providing, as has been done in S.32 of the Act, that once admitted, the admissibility of the document cannot be disputed, thus putting a premium on accidental mistakes and careless orders. In every case, the party, whether he produces the original or copy, whether the document has been admitted in evidence or not, should be made to pay the duty and penalty so that neither public revenue nor public justice suffers. 12. The preponderance of judicial opinion particularly the current of recent rulings, supports the view that only the original can be validated by payment of stamp duty and penalty, that secondary evidence is inadmissible if the original is itself inadmissible on account of its not being duly stamped. Otherwise, public policy can be defeated and the basic assumption in S.65 of the Evidence Act violated. Moreover, as stated by me earlier, S.34 of the Kerala Act, like other similar statutes elsewhere, forbids not merely admissibility but also 'acting upon' and S.35 of that Act (corresponding to S.36 of the sister statutes elsewhere) absolves the document, which has been admitted, only from the vice of inadmissibility but does not end the embargo on 'acting upon'. The decision in AIR 1968 Madras 294 my be usefully referred to in this context. Rama Moorthy J. considered the question of the admissibility of secondary evidence to prove the terms and conditions of a sale when the alleged agreement of sale was found to be unstamped. The decision in AIR 1968 Madras 294 my be usefully referred to in this context. Rama Moorthy J. considered the question of the admissibility of secondary evidence to prove the terms and conditions of a sale when the alleged agreement of sale was found to be unstamped. His Lordship referred to the wide and absolute character of the prohibition contained in S.25 of the Stamp Act (S.34 of the Kerala Act) and went to the extent of holding that "even though in the pleadings the contesting party may admit the execution of the unstamped document, no relief could be granted on the basis of the admission, as it would amount to acting upon the unstamped document." Dealing with the question whether it would be open to the party, who suppresses the original, to urge that secondary evidence should not be adduced, his Lordship observed: "Learned counsel urged that the plaintiffs are wrong doers and if the plaintiffs had produced the agreement of sale, even though unstamped, his client would have got the document admitted in evidence on payment of the requisite stamp duty and penalty, and a party who prevents the aggrieved party from validating the transaction by payment of stamp duty and levy of penalty cannot take advantage of the fact that the document is unstamped." After referring to a decision reported in AIR 1956 Madras 693, which supported the opposite view, their Lordships dissented from that single Judge's decision and followed the ruling reported in AIR 1946 Madras 457 "in which it was held that even if the contesting party was in wrongful possession of an unstamped document, relief could not be given to the other side .......... once it was conceded that the document in question was unstamped, the suppression by the defendant of the document would not render the position for the plaintiff any the better, as the prohibition in S.35 would be attracted and would come into play." A few more decisions bearing on the point were also discussed and secondary evidence of the unstamped original was disallowed. In 1966 (2) AWR 231 Mr. Justice Gopalakrishnan Nair held that an unstamped document of sale was not receivable in evidence in view of the clear provisions of S.35 of the Stamp Act as it would amount to deliberately circumventing S.35 (S.34 of the Kerala Act) to permit secondary evidence of the contents of the unstamped original. In 1966 (2) AWR 231 Mr. Justice Gopalakrishnan Nair held that an unstamped document of sale was not receivable in evidence in view of the clear provisions of S.35 of the Stamp Act as it would amount to deliberately circumventing S.35 (S.34 of the Kerala Act) to permit secondary evidence of the contents of the unstamped original. The learned Judge referred to a Division Bench decision of the Madras High Court reported in ILR 30 Mad. 336 where also the original document was not produced and secondary evidence was led. The Division Bench held that the receiving of such secondary evidence would amount to giving some effect to the unstamped document by connecting the possession of the defendant with the contents thereof and was, therefore, contrary to the provisions of S.35 of the Indian Stamp Act. In fact the Andhra Pradesh decision also referred to AIR 1946 Mad. 298 where a copy of an unstamped document was excluded from evidence even an offer of payment of duty and penalty. A Full Bench of the Andhra Pradesh High Court in AIR 1967 AP 257 has ruled on the same lines. 13. I am free to concede that there are some decisions taking a contrary view, such, for instance, as those reported in AIR 1951 Mad. 326 AIR 1957 AP 784 , AIR 1934 Mad. 700 , but it appears to me that correct principle and public policy apart from the logic of the law, lead to the conclusion that if the original is unstamped, the impediment cannot be overcome by producing a copy and further that giving effect to the copy in order to decree or dismiss the suit would be impliedly acting upon the document which is expressly forbidden by the statute, even if the document has been admitted in evidence. 14. In this view, Ex. B1, the original of which has been impounded, can neither be admitted in evidence nor acted upon. Ex. B7 sale is pendente lite and therefore ineffectual against the plaintiff's claim for recovery of possession on title. Defendants 1 to 4 not having established any right to be in possession on the strength of an agreement to sell, the decrees and judgments of the courts below, concurrent as they are, must be sustained. Ex. B7 sale is pendente lite and therefore ineffectual against the plaintiff's claim for recovery of possession on title. Defendants 1 to 4 not having established any right to be in possession on the strength of an agreement to sell, the decrees and judgments of the courts below, concurrent as they are, must be sustained. The other evidence, oral and documentary have been rejected by the courts below; and exercing jurisdiction under S.100 C.P.C. I cannot disturb the findings purely on a different appreciation of evidence. 15. The defendants' counsel has urged before me that he has rights under the Kerala Land Reforms Act, 1963, since he has been keeping possession under the honest belief of a tenancy in his favour and that he has complied with the other requirements laid down in the Act to claim fixity of tenure. That claim, ambitious as it may strike at the first flush, has not been considered by the courts below, nor, indeed, could they have been considered since the legislation, which has conferred extensive and extra ordinary rights upon lessees and pseudo lessees, is subsequent to the institution of the suit. Act 35 of 1969 is the basis of the appellants' contention. All that I need say here is that nothing said here will stand in the way of any rights or claims that the defendants may set up and make out under the new agrarian legislation. When raised, the questions involved therein will also be considered by the court on their merits. Subject to this observation, I dismiss the second appeal with costs.