A. Narayana Pai, C.J.
1. This is a plaintiffs second appeal against the decree of the Civil Judge, Mysore on appeal, dismissing his suit which had been decreed by the Munsiff.
2. The plaint stated a case of a loan of Rs. 1.000/- advanced by the plaintiff to the defendant in the 'morning of 1st April, 1957 followed by the execution of a promissory note by the defendant at about 1 P. M. in the afternoon of the same day. The promissory note was insufficiently stamped. But there was at the foot of the paper containing the text of the promissory note, a receipt for consideration amount signed by the defendant and attested by two witnesses, and there was also on the back of the paper an endorsement of a payment of Rs. 55 described as interest due in respect of the promissory note.
3. In dismissing the suit, the Civil Judge recorded a definite finding of fact that the plaintiff's case of a loan advanced in the morning and promissory note executed in the afternoon cannot be believed. He takes the view on an examination of the evidence adduced by the plaintiff himself that the loan, if any, was undoubtedly advanced simultaneously with the execution of the promissory note and that therefore the transaction cannot be split up into two independent transactions, one of loan and one of promissory note. On this finding, he applied the law and held that the promissory note was wholly inadmissible in evidence and could not be used for any purpose. Regarding the endorsement relied upon as an acknowledgment saving limitation, the Civil Judge held that the acknowledgment could not possibly be related to an independent loan spoken to by the plaintiff but is so clearly connected with the inadmissible promissory note itself that the plaintiff cannot make any use thereof.
4. So far as the finding of fact itself is concerned, I do not think that there is any ground to interfere with it in second appeal. The criticism that the Civil Judge has stated no reason for disbelieving or discarding the evidence, is in my opinion, unwarranted. The evidence of the two attestors is to the effect that although they have signed under the text reading: 'Namagala rubu rubu melkanda 1000, ondu savira rupayigalu pavatiyagirutte' meaning that the above said sum of Rs. 1,000 has been paid in their presence, the money was not actually paid in their presence but that they subscribed their signatures to the said text because the defendant showed them the money which he had received in the morning and the scribe also asked them to write like that. I do not think that there can be any two meanings for the Kannada expression mentioned above or that it is possible to contend that the said expression which undoubtedly points to actually witnessing the payment of the money can be read to mean their seeing the money after receiving the acknowledgment from the defendant that he had received the same sometime earlier. In that view the Civil Judge cannot be found fault with for holding that the evidence of these witnesses is so completely contradicted by the document to which they are parties and it is impossible to believe it.
5. Once that finding of fact is accepted, the legal result must also be accepted because under Section 35 of the Stamp Act the promissory note shall not be admitted in evidence for any purpose.
6. The wording of the endorsement also leaves no room for doubt that the money was paid in respect of the promissory note ((Promoting babattu) original in Kannada transliterated --Ed.) and not in respect of any loan independent of the promissory note. The Civil Judge has therefore, rightly interpreted the endorsement and stated its legal effect.
7. Mr. Gopal, the learned Counsel for the appellant, tried to argue that even if the advancing of the money and the execution of the promissory note may be simultaneous, it is not impossible in the eye of law to regard the two things as independent transactions or two transactions giving rise to two different causes of action. It is however not possible to accept that position in view of the ruling of this court in Shivanna v. Thammaiah. (1963) 2 Mys LJ 263 = (AIR 1964 Mys 56) where it has been pointed out, - while dealing with a case of an application to amend the plaint by adding allegations tending to make out a loan different from and anterior to the suit promissory note, --that the amendment could be permitted and the plaintiff could succeed only if he places before the court material sufficient to satisfy the court that the loan itself was not simultaneous or contemporaneous with the execution of the suit promissory note and that the loan was a transaction which was anterior to and independent of the suit promissory note. Although the discussion is made in connection with an application for amendment of the plaint, what this court has laid down is a principle of law which is of general application to questions of this nature. If what is in fact a single transaction in which the parties agreed that the promissory note should be the sole repository of the evidence of the liability or the single source of the said liability, an attempt to split the transaction into two, one of a loan and the other of a promissory note independent of the loan, would really amount to repealing the effect of Section 35 of the Stamp Act which is not permissible for the court to do.
8. For making use of the acknowledgment Mr. Gopal depends upon a decision of the Madras High Court reported in Meunammal v. S. N. O. Reddiar. : AIR1960Mad237 . In that case the first finding was that the loan was Independent of the suit promissory note. Having recorded that finding, the court dealing with the endorsement on the back of the promissory note stated:
'Therefore, in this case when the defendant made payments towards the promissory note, it is obvious that what was paid was towards the debt evidenced by the promissory note and what was acknowledged successively in Exs. A2, A3 and A4 was the subsistence of the debt itself, which the parties then believed at the time was evidenced by Ex. A1 in the sense that Ext. A-1 would be admissible in evidence to prove the existence of the debt itself.'
The carefully worded statement of the legal position is sufficient to reject the argument of Mr Gopal because the said statement followed upon and is directly related to the first finding that the debt was independent of the promissory note. If the debt is independent of the promissory note, then even if the promissory note is not admissible in evidence because it is unstamped or insufficiently stamped, the acknowledgment or acknowledgments could and should be regarded as instruments independent of the promissory note the liability whereof to stamp duty should also be examined independently of the fact that they might be endorsed on the back of the promissory note
9. The factual position in this case being quite different it is not possible for Mr. Gopal to derive any support from the said ruling of the Madras High Court.
10. The second appeal fails and is dismissed. No costs.