1. I am of opinion that the document sued on is a promissory note.
2. The plaint shows that the suit is brought on the promissory note as the original cause of action. The admission of the contents of this document made by the defendant in his written statement does not avail the plaintiff, the document being itself inadmissible in evidence from want of stamp-Ankur Chunder Roy v. Madhub Chunder Ghose 21 Cal. W.R. Civ. Rul., 1. My reasons for this opinion are those stated in Sheikh Akbar v. Sheikh Khan I.L.R., Calc., 256, which case as well as that of Radhakant Shaha v. Abhoychurn Mitter I.L.R. Cal., 721 the present case resembles, the facts of Golap Chand v. Thakurani Mohokoom Kooaree I.L.R. Cal. 314 and Hiralal v. 'Datadin I.L.R.All. 135 coming under a different principle.
Bird wood, J.
3. The Subordinate Judge has adopted an unusual course in mixing up a reference under Section 49 of the Stamp Act with one under Section 617 of the Code of Civil Procedure. A reference under the former Act must be disposed of by three Judges of this Court, whereas one under the Code can be dealt with by one of the Division Benches ordinarily sitting. However, as the two references now made arise out of the same case, It will not be inconvenient to dispose of them together.
4. On the question referred under the Stamp Act, I concur with Mr. Justice Jardine that the document sued on is a promissory note. It is chargeable with a duty of two annas.
5. On the question referred under Section 617 of the Code, I am of opinion that the plaintiff cannot, in this case, recover irrespectively of the promissory note, because he does not seek to prove the consideration otherwise than by the note, which is inadmissible in evidence, and because the admissions contained in the Written statement do not amount to an admission of the claim as for money lent.
6. The case is not one in which secondary evidence would be admissible for the purpose of proving the contents of the unstamped promissory note; for primary evidence, i. e., the document itself, is forthcoming. To such a case, Section 65, Clause (b) of the Evidence Act would not apply. The admission of secondary evidence would, moreover, be an evasion of Section 34 of the Stamp Act of 1879, under which the note cannot 'be acted on,' being unstamped. See Muttukaruppa Kaundan v. Rama Pillai 3 Mad. H.C. R 158. To prove it by secondary evidence, and so make it the basis of a decree, would clearly be to act on it. The note cannot, therefore, be looked at in dealing with the claim.
7. The document itself and secondary evidence of its contents being inadmissible, no other evidence can, under Section 91 of the Evidence Act, be given to prove the terms of the contract between the parties, of which the note was intended to be the evidence-Ankur Chunder Roy v. Madhub Chunder Ghose 21 Cal. W.R. Civ, Rul., 1. If the plaintiff had sought to prove the consideration by other evidence, as for instance, by evidence as to an admission of the debt by the defendant, such evidence would have been admissible. But he rests his claim on the note; and that being inadmissible, he must fall back and recover, if at all, on admissions, if any, in the written statement.
8. In Farr v. Priced, the verdict for the plaintiff was set aside on the ground that the promissory note sued on bore a nine-penny instead of an eight-penny stamp, as required by the Statute, 37 Geo. III, c. 90 ; but Lord Kenyon, C.J., observed that 'as there were other general counts in the declaration, if the plaintiff could give other evidence of consideration paid by him to the defendant, he would not be concluded from recovering by the fact of the defendant's having given this imperfect promissory note for it;' and in Tyte v. Jones, quoted in the note to that case, Lord Kenyon 'permitted the plaintiff,' who had obtained an unstamped promissory note from the defendant, 'to recover on a common count for money lent, by proving that when the money for which the note had been given was demanded of the defendant, he acknowledged the debt.'
9. In Golap Chand v. Thakurani Mohokoom Kooaree I.L.R., Calc., 314 the case of Farr v. Price is cited as an authority for the rule that the existence of an unstamped promissory note does not prevent the lender of money from recovering on the original consideration if the pleadings are properly framed for that purpose; and the Judges who decided Golap Chand' s case I.L.R. Cal. 31 remark further that, in. this country, the great power given of raising the true issues between the parties prevents the question of pleading having much importance; and they held that Lord Kenyon's decision in Farr v. Price1 East., 55at p. 59 precisely governed the case, in which the plaintiff, who sued on an unstamped promissory note, sought to give evidence of the advance, the form of pleading being, as the Judges said, not material. In the present case, it is not necessary to decide whether the plaintiff may be allowed to give independent evidence of the advance,-evidence, that is, apart from the defendant's admissions in the written statement;-for what the plaintiff relies on, as I understand from the terms of the reference, after the rejection of the promissory note, are the admissions in the written statement only. So that the case is similar to that of Ankur Chunder v. Madhub 21 Calc. W.R. Civ. Rul., 1 rather than to that of Golap Chand v. Thakurani Mohokoom Kooaree I.L.R., Cal., 314. And the only question is whether the written statement of the defendant amounts to such an admission of the claim as to dispense with the production of the promissory note in evidence. If it does not, and if the production of the note itself is necessary, the suit must fail. In Ankur Chunder's case 21 Cal. W.R. Civ. Rul., . 2 the plaintiff did not set out the document sued on in the plaint, nor did the defendant admit it in such a way as to make it unnecessary for the plaintiff to produce it; and Couch, C.J., observed: 'It seems to me that, when the plaintiff made it a part of his case that he should produce and prove the document, it cannot be said that his case was so admitted by the defendant that he need not produce it.' In that case, the defendant admitted that he wrote the 'amanati rokha' filed by the plaintiff, but denied that he had received the money covered by it. The plaintiff's appeal was accordingly dismissed.
10. This decision seems to govern the present case. And I think the Subordinate Judge ought to reject the claim, as the plaintiff does not offer any independent evidence of the advance alleged by him, and the defendant does not in his written statement admit that any money was lent to him, as alleged by the plaintiff, but sets up an entirely different transaction, in respect of which he admits no remaining liability.
Nanabhai Haridas, J.
11. I concur.