(1) The general question, which presently falls for determination is: whether a certificate appended to an affidavit by a Notary Public, which is not
duly stampted, is admissible in evidence ?
(2) While the statement of Mr. R S. Jamwal Advocate, a Notary Public, was being recorded to, prove the certificate appended by him to an
affidavit alleged to have been executed by the first defendant, an objection was raised on behalf of the latter that the certificate could not be
admitted in evidence, as the same was not duly stamped Reliance in support of the objection was placed upon sec 11 of the Stamp Act,
hereinafter the Act? read with Art. 42 of Schedule I to the Act. This objection was sought to be met on a twin ground that certificate or
endorsement of a Notary Public not being an instrument within the meaning of Section 2 (14) of the Act, no duty was chargeable on it and that in
any case sec. 11 gave a discretion to a party desirous of making use of a instrument to pay or not to pay a stamp duty on it.
(3) Sec. 3 of the Act is the charging section, whereas Schedule I prescribes the stamp duty with which a particular instrument is chargeable. Sec.
3, in so far as it is material for the decision of the point as issue, is reproduced as below :
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 therefore respectively, that is to say.
(a) every instrument mentioned in that schedule which, not having been previously executed by any person, is executed in the State on or after the
date on which this Act comes into force."" On its plain terms, Sec. 3 provides that subject to other provisions of the Act, all other instruments,
except those exempted under the first schedule shall be chargeable with duty mentioned in the said schedule. Instrument has been defined u/s 2
(14) in the following words :
instrument"" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or
recorded.
(4) Use of the word ""includes' in the Subsection leaves no room for doubt that the definition of the word ""instrument"" in it is not exhaustive,
Consequently a document which creates, transfers, limits, extends, extinguishes or records or purports to record, transfer limit, extend, extinguish
or record any right or liability alone is not an instrument within the meaning of the Subsection Section II, however, gives an extended meaning to the
word 'instrument' according to which, even a notarial act is an instrument chargeable with duty. This section, which places instruments in five
categories mentioned in Clauses (a), (b), (c), (d), and (e) opens with the words: ""the following instruments may be stamped with adhesive stamps,
namely and Cl (a) refers to notarial acts obviously, therefore, a notarial act reduced to the form of writing is instrument within the meaning of this
section as well as Section 3 and is chargeable with duty unless exempted under the schedule. The expression : ""subject to the provisions of the
Act"" occurring in sec. 3 makes it obligatory to take notice of sec. 11 and treat a notarial act as an instrument, granting that a mere certificate of a
Notary Public that contents of the affidavit were read over and explained to its deponent and admitted by him to be correct, does not by itself
create, extinguish, extend, transfer, limit or record any right or liability and is not as such, instrument defined in sec. 2 (14) as argued by Mr.
Joginder Singh. The other limb of Mr. Singh's argument is that the use of the word 'may' in Sec. 11 does not make it obligatory on the party in
whose favour as instrument has been executed to get it executed on a sufficient stamp of proper description gives a discretion to the party to pay
stamp duty on the document or even not to pay it, if I may say so, is amusing. If such an interpretation is to be placed upon the word 'may'
occurring in Sec 11 then only fools would pay the stamp duty. A party may like to pay the stamp duty at the time of the execution of the document
itself or may even choose to get it admitted in evidence or otherwise acted upon on payment of penalty as provided u/s 35.
(5) Sec. 11 has, however, to be read alongwith Art. 42 which reads as under :
Description of the instrument Proper stampduty
42, Notarial Acts, that is to Three Rupees say, any instrument, endorsement, note, attestation, certificate or entry not being a Piotest (No : 50)
made or signed by a Notary Public in the execution of the duties of his office, or by any other person lawfully acting as a Notary Public.
(6 Under this Article, a certificate or endorsement appended to an affidavit by a Notary Public shall be chargeable with duty, provided the same
has been appended by him in execution of the duties of his office, but not otherwise. Under Cl. (a) of Sec. 8 of a Notary's ActCentral Act No :
LIII of 1952 made application to the State of Jammu & Kashmirverifying, authenticating, certifying or attesting the execution of a document or all
such acts as may be done by a Notary Public by virtue of his office. Such an act is an instrument chargeable with duty under Art. 42, which by
virtue of the J&K Taxation Laws (Amendment) Act, 1974 has been enhanced from Rs. 3/ to Rs. 5/. The affidavit in dispute certified to have bean
sworn by the first defendant in the year 1977, the certificate recorded on it by the Notary Public was, as such, required to bear adhesive stamp
amounting to Rs. 5/. It doss not bear any stamp at all and is, therefore, clearly inadmissible in evidence u/s 35 But the same not being an instrument
chargeable with a duty of ten Paisa, or all of exchange, or a promissory note, or an acknowledgement, can be admitted in evidence on payment of
the duty alonwith penalty of ten times of the duty payable on it. Two weeks time is, accordingly, allowed to the plaintiff to pay the duty as well as
the penalty in case he may like the court to admit the instrument in evidence or to be otherwise acted upon by it.
(7) The case shall come up after two weeks on a date to be fixed by the D. R.
