1. This second appeal is by the defendant against the decree passed by the Civil Judge at Dharwar in Regular Appeal No. 47 of 1974 modifying the decree passed by the Principal Munsiff at Hubli in Original Suit No. 527 of 1973.
2. The respondent Kallayya instituted the suit for recovering the amount due under the pronote Exhibit P-1 dated 14-7-1972 executed by the defendant in his favour. The defendant resisted the suit inter alia contending that the pronote is not supported by consideration and that it being insufficiently stamped is not admissible in evidence.
3. The learned Munsiff held that the execution of the pronote is proved and that it is supported by consideration. Though the learned Munsiff decreed the suit of the plaintiff, he made a direction for payment of the decretal amount in monthly instalments of Rs. 80 commencing from the 2nd of April, 1974. The defendant Devendrappa challenged the decree in the Court of the Civil Judge at Dharwar. The plaintiff also filed cross-objections complaining against the grant of instalments. The learned Civil Judge allowed the cross-objections of the plaintiff and dismissed the appeal of the defendant. Hence, this second appeal.
4. Sri V. S. Gunjal, learned counsel for the appellant, firstly maintained that the Court below was not right in holding that the appellant was not entitled to call in question the admission of the suit pronote Exhibit P-1 in evidence. S. 36 of the Indian Stamp Act, 1986 provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in S. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. If the pronote was admitted in evidence by the Court of first instance, the bar contained in S. 36 of the Act would be attracted. But it was maintained by Sri Gunjal that on the facts of the present case, it cannot be said that the suit pronote was admitted in evidence. The suit pronote was put to the plaintiff when he was in the witness box, who spoke about its execution. It is at that stage that the suit pronote was marked as Exhibit P-1. There is no reference in the deposition of the plaintiff to any objection raised for admitting the suit pronote in evidence and marking the same as exhibit. I also perused the order sheet of the Court of first instance. I do not find any reference to any objection having been raised for the admission of the suit pronote in evidence. I have, therefore, no hesitation in agreeing with the finding of the Court below that the suit pronote was admitted in evidence by the Court of first instance. That being the position, the appellant-defendant is precluded from calling in question the admission of the suit pronote on the ground that the same has not been duly stamped. The conclusion which I reach receives full support from the decision of the Supreme Court in Javer Chand v. Pukhraj Surana : 2SCR333 .
5. What I have held above is sufficient dispose of this appeal, but as Sri Gunjal, learned counsel for the appellant, submitted arguments on the question as to whether, having regard to the circumstances of the case, the suit document can be regarded as having been duly stamped, I consider it appropriate to deal with the same. The argument of Sri Gunjal was constructed on the facts as found by the lower appellate Court. The facts found are that the suit promissory note was executed on the 14th of July, 1972 by the defendant. When the defendant affixed his signature, four revenue stamps of 10 Naya Paise each were affixed. It is on those four revenue stamps that the defendant affixed his signature. But the plaintiff pointed our immediately thereafter that in addition to the revenue stamps, additional stamp with the inscription 'Refugee Relief' of the requisite value has to be affixed as required by the Stamp and Excise Duties (Amendment) Act, 1971. As refugee stamps were not readily available, the same were immediately obtained and affixed below the revenue stamps already affixed on the promissory note. Thereafter the defendant cancelled the same by putting the date 14-7-1972 on the four refugee relief stamps of 10 Naya paise each. It is on the basis of these facts found by the Court below that it was maintained that the suit pronote cannot be regarded as a document which is duly stamped. The expression 'duly stamped' is defined in S. 2(1) of the stamp Act to mean as follows:--
''Duly stamped', as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India.'
6. S. 17 of the Indian Stamp Act provides that all instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution. What was maintained by Sri Gunjal is that this is a case in which the suit pronote was not stamped before or at the time of execution. As admittedly, the refugee relief stamps were affixed after the signature was affixed by the defendant on the pronote, it was contended that the suit pronote cannot be regarded as having been stamped before or at the time of execution. The facts found clearly establish that the suit pronote was not duly stamped before the execution of the pronote. The question for consideration is as to whether the facts as found by the Court below are sufficient to establish that the suit pronote was duly stamped at the time of execution. In support of his contention, Sri Gunjal, learned counsel for the appellant, relied on the decision of the Bombay High Court in Mrs. Rohini Chandrakant Vijayakar v. A. I. Fernandes : AIR1956Bom421 . Disagreeing with the view taken by the Madras High Court in Surij Mull v. Hudson ((1901) ILR 24 Mad 259). This is what Chief Justice Chagla has observed (at p. 423):
' In that case the executant was only one and the promissory note was signed by him and subsequently it was stamped, and the question was whether the provisions of S. 17 had been complied with, and the Madras High Court held that the uncontradicted evidence of the plaintiff shows that the acts were practically simultaneous and the stamping was therefore done at the time of execution within the meaning of section 16 which corresponded to section 17 of the present Act.
With very great respect to the Madras High Court, it is difficult to understand the significance of the expression 'practically simultaneous'. Either the stamping is after execution or it is before or at the time of execution. If the stamping is after execution, then clearly the case does not fall within S. 17 Mr. Kapadia has suggested that if the transaction of execution and stamping is one, then it could be said that the stamping was done at the time of execution.
But it is clear in our opinion that Section 17 requires that the stamping should be done some time before the document is executed or that a stamped paper must be placed before the executant who must execute it or just before he executes it he must stamp it and execute the document.
But if the executant has already finished with the execution of the document and in the eye of the law the document could be said to have been executed any subsequent stamping, however close in time, could not be said to be stamping at the time of execution, and again when we look at the scheme of S. 12(1)(b) that also contemplates clearly that the document which is executed already bears an adhesive stamp in other words, the execution is subsequent to the stamping of the document.'
7. S. 17 of the Indian Stamp Act permits stamping of the document either before or at the time of execution. The word 'execution' has been defined in S. 2(12) of the Act to mean signing or affixing the signature. The expression 'at the time of execution' employed in S. 17 of the Act in the context indicated that affixing of the stamp as well as the affixing of the signature must take place simultaneously. In the very nature of things, it is very difficult to resort to both the processes, one of affixing the signature and the other of affixing the stamp at the same time. It is, therefore, reasonable to construe the expression 'at the time of execution' as requiring affixing of the stamp in close proximity in point of time to the affixing of the signature. If immediately after the signature is affixed the requisite stamp is affixed, such acts, in my opinion, do constitute affixing of the stamp at the time of execution of the document. With great respect, I find it not possible to agree with view taken by the Bombay High Court in Rohini's Case.
8. In Surij Mull v. Hudson ((1901) ILR 24 Mad 259) this is what the Madras High Court observed:--
'The uncontradicted evidence of the plaintiff shows that the acts were practically simultaneous and the stamping therefore was done 'at the time of execution' within the meaning of S. 16 of the Stamp Act (I of 1879), which is the Act governing the present case. Even under the present Act (II of 1899), where 'execution' is defined as meaning 'signature', we do not think it would make any difference if the stamp is affixed and cancelled immediately after the signature, the signing and the stamping being continuous acts in the same transaction.'
In my opinion, the view expressed by the Madras High Court in Surij Mull's case represents the correct legal position. As in this case the requisite stamps were affixed very soon after the signature was affixed by the defendant on the pronote it must be regarded as having been stamped at the time of execution.
9. For the reasons stated above, this appeal fails and is dismissed with costs.
10. Appeal dismissed.