1. This appeal arises out of a suit filed by the plaintiff to recover Rs. 2000, future interest on it and costs of the suit out of the estate of deceased Bhulabhai Gokuldas, to whom various amounts had been advanced by him from time to time between 13-12-1936 and 27-1-1938. Defendants 1 and 2, who are Bhulabhai's brothers, contended that they were separate from him, that none of his property was in their possession and that the suit was time-barred. The suit was filed on 18-11-1940, and the only amount advanced within three years before suit was the last item of Rs. 25 paid to Bhulabhai on 27-1-1938. But the plaintiff alleged in his plaint that on 19-11-1937, Bhulabhai had endorsed an acknowledgment of his liability in his khata in the ledger, and that the bar of limitation was saved thereby under Section 19, Limitation Act. That endorsement being unstamped, both the Courts below held it inadmissible in evidence, as it amounted to an acknowledgment which required a stamp of one anna under Article 1 of Schedule 1, Stamp Act. The plaintiff was, therefore, given a decree for Rs. 25 and Rs. 4-4-0 as interest thereon with proportionate costs.
2. The endorsement in the khata runs as follows:
Rs. a. p.
1,679 9 3 due as principal.
147 12 0 due for interest (details are set
1,827 5 3 found due after understanding
(Signed) Shah Bhulabhai
3. The only question in this appeal is whether this amounts to an acknowledgment, requiring to be stamped under Article 1. That Article prescribes a stamp of one anna for an
acknowledgment of a debt exceeding twenty rupees in amount or value, written or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book... when such book is left in the creditor's possession, provided that such an acknowledgment does not contain any promise to pay the debt.
This Article would apply to a written or signed acknowledgment of a debt exceeding Rs. 20, left in the possession of the creditor, (1) if it is intended to supply evidence of such debt but (2) does not contain any promise to pay the debt.
4. When the balance of an account is acknowledged by a writing made in the creditor's account book and signed by the debtor, it is often difficult to say whether the intention is to admit the correctness of the account or to supply evidence of the debt. In the latter case, the acknowledgment requires to be stamped, and if it is not stamped, it cannot be admitted in evidence for any purpose, so that in such a case the creditor is met with the heavy penalty of losing his claim altogether, since the document cannot be made admissible even on payment of stamp duty and penalty to Government. This is apt to attract some sympathy for the creditor, and although there is an apparent conflict of judicial opinion in the interpretation of the Article, the test applied in each case was what was the dominant intention of the parties in the passing of the writing. For this purpose surrounding circumstances and oral evidence can be taken into consideration. Thus in A.I.R. 1925 Mad. 12151 a letter written in reply to a letter sending a statement of account, and admitting that the account sent was correct was held to be not an acknowledgment requiring to be stamped, because the intention was merely to admit the correctness of the account, and not to supply evidence of the debt. Mr. Thakor for the plaintiff-appellant pointed out a number of similar rulings. A.I.R. 1941 Nag. 704 which distinguish between an admission of the correctness of accounts and an acknowledgment of liability, and lay down that a debtor's admission taken in writing in order that he may not subsequently dispute its correctness cannot be regarded as an acknowledgment intended to supply evidence of the debt. I respectfully agree with this as a general proposition of law and it does not in any way conflict with the view taken by a Full Bench of this Court in 21 Bom. 201 There the acknowledgment was similar to that with which we are concerned in this appeal, and it was held that it required to be stamped. Mr. Thakor points out that it had been conceded in that case that the acknowledgment required to be stamped and the only question referred to the Full Bench was whether though unstamped, it could be admitted in evidence to save the debt from the bar of limitation under Section 19, Limitation Act, as held in the earlier decision in 18 Bom. 614 The Full Bench overruled that case and held that it could not be admitted in evidence for any purpose whatever. Though it was not disputed in the lower Court in the Full Bench case that the writing was an acknowledgment within the meaning of Article 1 of Sch. 1, Stamp Act, yet the point was argued in the High Court, and the Full Bench held that it fulfilled all the requirements of that Article. The acknowledgment ended with the words-'After making up all accounts, this writing is made and given', and from these words it was held to have been intended to be used as evidence. In distinguishing this case Schwabe C.J. and Ramesan J. observed in 46 Mad. 9487 : . the words amounted to giving the figure and the statement was that account having been taken the balance due was so much, and I can understand the view in those oases that there was merely sending (signing) an acknowledgment of the debt for giving the other party an acknowledgment (of debt) for use in evidence.
5. In every case the primary question is whether the document was brought into existence with the dominant intention of supplying evidence of the debt, and this must be determined both from the wording of the document and the surrounding circumstances. In the present case not only is the wording of the acknowledgment similar to that of the acknowledgment in 21 Bom. 20l but the plaintiff himself has admitted that he took the writing in order that it might serve the purpose of acknowledgment. In other words it was intended to be used as evidence for the purpose of Section 19, Limitation Act. Mr. Thakor next contends that in view of this finding the acknowledgment must be held to fall within the exception contained in the proviso to Article 1, since according to the rulings of the Privy Council in 33 I.A. 1658 and of this Court in 46 Bom. 249 an unconditional acknowledgment implies a promise to pay and therefore, amounts to an 'agreement', and if unstamped, would be admissible in evidence on payment of the required stamp duty and penalty. But the proviso will be applicable only if the acknowledgment 'contains' a promise to pay, which obviously means an express promise. An implied promise to pay, by way of an inference from an unconditional acknowledgment, is not sufficient for the purpose of the proviso.
6. Hence the acknowledgment relied upon by the plaintiff requires to be stamped with a one-anna stamp, and not being so stamped, it is inadmissible in evidence even for the purpose of saving the bar of limitation under Section 19, Limitation Act. The appeal is dismissed with costs.