Chandrasekhara Sastry, J.
1. The plaintiff who is the appellant in this Second Appeal, was a licensed stamp-vendor to sell Court-fee general stamps in the District Munsif's Court, Nuzbid. The defendant was a clerk appointed by him, according to the allegations in the plaint, on a monthly salary of Rs. 25/-for the purpose of depositing money in the Sub-treasury and taking delivery of the indented stamps and selling the stamps at the Court and maintaining a true and proper account of the above transactions. The further allegations in the plaint are as follows: The plaintiff was furnishing the defendant with the necessary funds for the purchase of stamps. The defendant was not paying the plaintiff all the sale proceeds of stamps. So, in April 1955, after the Court was closed for summer vacation, the plaintiff demanded the dfefendant to render a trueand proper account of all the transactions and pay to the plaintiff the amount which was lying with the defendant representing the sale proceeds of the stamps and also to deliver the unsold stamps. But the defendant did not do so.
But he sent the account books alleged to have been maintained by him to the plaintiff with one K. Venkata Rao examined as P. W. 2 in the case. The defendant did not pay any amount or give the unsold stamps to the plaintiff. From a perusal of the accounts, it is clear that the plaintiff noted some false entries in the accounts. The plaint gives certain instances of false entries. It is also alleged that the defendant is under a duty to maintain and render a true and proper account of all the transactions of stamp-vending. The defendant was employed as a clerk till April, 1955. A decree was prayed for directing the defendant to render a true and proper account of the transactions of stamp vending conducted on behalf of the plaintiff by the defendant during the period of his employment and (or passing of a decree in plaintiff's favour for the amount found due by the defendant.
2. The defendant pleaded that he was employed as a clerk on a 'monthly salary of Rs. 40/-, but that he had nothing to do with the handling of the money itself. His duty was merely to write the accounts to the dictation of the plaintiff. The plaintiff himself was attending to all the transactions connected with stamp-vending. The plaintiff himself had to pay the defendant towards his salary a sum of Rs. 446/- for which the defendant would file a separate suit. As the suit claim is based upon an alleged agreement which is void qn account of its illegality and being opposed to law and public policy, the suit is liable to be dismissed. The following material issues were framed by the Trial Court:
'(i) Whether the defendant is an employee of the plaintiff as alleged?
(ii) Whether the defendant is liable to accountfor, and if so, to what extent?
(iii) Whether the defendant was vending stamps on behalf of the plaintiff?
(iv) x x x x
(v) Whether the suit is not maintainable in law, as the suit claim is opposed to public policy?'
On the 1st issue, the Trial Court found that the defendant was employed as a clerk under the plaintiff to write accounts and to vend stamps and on the 2nd issue, it found that the defendant is liable to account for the plaintiff. On the 3rd issue, it found that the defendant was vending stamps on behalf of the plaintiff. On the 5th issue, it found that the appointment of the defendant by the plaintiff for the purpose of carrying on stamp vending business on behalf of the plaintiff is only collateral to the stamp-vending business of the plaintiff and that, therefore, the plaintiff is entitled to enforce his claim for rendition of account and that the suit is maintainable in law. In the result, a preliminary decree for accounts was passed. Against this judgment and decree of the trial Court, the defendant filed an appeal in the Court of the Additional District Judge, Krishna at Masulipatam.
The learned Additional District Judge also found that the plaintiff appointed the defendant as a clerk to sell stamps and maintain a true and proper account of the sales and that the defendant is liable to render to the plaintiff a true and proper account of the transactions. But he held that the suit claim is opposed to law and not enforceable, as, in his view, the appointment of the defendant to attend to the stamp-vending on behalf of the plaintiff, who is the person licensed to vend stampsis prohibited under Section 34 of the Court-fees Act, 1870 and Section 69 of the Indian Stamp Act. In that view, the learned Additional District Judge allowed the appeal and dismissed the plaintiff's suit, and directed the parties to bear their own costs in both the Courts. Hence, the above second appeal is filed by the plaintiff.
3. It is argued by Mr. Suryanarayana, the learned Counsel for the appellant that there is nothing either in the Court-fees Act or in the Indian Stamp Act which prohibits the appointment of a clerk by a licensed stamp-vendor to attend to the sale transactions relating to the stamps and that, therefore, the view pf the learned Additional District Judge that the suit claim is opposed to law and not enforceable is erroneous.
4. The question that arises for consideration is whether a licensed stamp-vendor can validly appoint a clerk to attend on his behalf to the transactions relating to the stamp-vending. It is argued by the learned Counsel for the defendant-respondent that the plaintiff atone is the person who can sell stamps and could not depute the same to a clerk in view of Section 34 of the Court-fees Act and Section 69 of the Indian Stamp Act. Section 34 of the Court-fees Act reads as follows :
'34. (1) The Appropriate Government may, from time to time, make rules for regulating the sale of stamps to be used under this Act, the persons by whom alone such sale is to be conducted, and the duties and remuneration of such persons.
(2) All such rules shall be published in the Official Gazette, and shall thereupon have the force of law.
(3) Any person appointed to sell stamps who disobeys any rule made under this section, and any person not so appointed who sells or offers for sale any stamp, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both'.
Stress is laid upon the following expression in clause (1) of the Section 'the persons by whom alone such sale is to be conducted, and the duties and remuneration of such persons'. Stress is also laid on the word 'appointed' in Clause (3). Section 69 of the Indian Stamp Act is as follows:
'69. (a) Any person appointed to sell stamps who disobeys any rule made under Section 74, and
(b) any person not so appointed who sells or offers for sale any stamp (other than a one anna or half an anna adhesive stamp); shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.'
With reference to this Section also, the learned Counsel for the respondent laid stress on the Expressions 'Any person appointed to sell stamps' in Clause (a) and 'any person not so appointed' in Clause (b). I am also referred to Section 74 of the Indian Stamp Act which provides that:
'74. The State Government may make rules for regulating :
(a) the supply and sale of stamps and stamped papers,
(b) the persons by whom alone such sale is to be conducted, and
(c) the duties and remuneration of such' persons: Provided that such rules shall not restrict the sale of one anna or half anna adhesive stamps.'
Again the expression used in Clause (b) of this section is 'the persons by whom alone such saleis to be conducted'. Relying upon these expressions, it is strenuously contended by Mr. Kodandaramaiah, the learned Counsel for the respondent that the plaintiff could not under law appoint the defendant as a clerk either to purchase the stamps from the Treasury or to sell the stamps to others and that it was the duty of the plaintiff and the plaintiff alone to attend to these transactions. It is also contended that, from the use of the word 'appointed', the plaintiff is really the holder of an office and that he himself has to perform those duties as such officer and that he could not depute those duties to another whom he may appoint as a clerk. Reliance also is placed upon a rule under which it was provided that:
'Private parties may be licensed stamp-vendors by Collectors and Divisional Officers at their discretion. Tahsildars and deputy Tahsildars in independent charge have been empowered to issue licences when stamp-vendors' places are permanently vacant to grant leave to stamp vendors without limit of time, to till up temporary vacancies caused by the grant of such leave and to grant licence for the sale of stamps to substitutes appointed by them in such cases.'
My attention is also drawn to the rule which prescribed that
'Appointments of vendors made by Tahsildars and Deputy Tahsildars in independent charge should not ordinarily be interfered with unless their men are clearly unsuitable, or unless someone with an obviously superior claim has been over-looked. A single appeal will be allowed against orders of appointment and punishment of stamp-vendors; and Collectors may entertain revision petitions in exceptional circumstances when the appellate order has been passed by the Revenue Divisional Officer.' (Vide pages 398 and 399 of the Madras Stamp Manual, Fourth Edition).
5. It is contended by Mr. Suryanarayana, the learned counsel for the appellant that the word 'appointment' in these sections does not indicate that the person holding licence is holding any office as such and that, so far as private stamp-vendors are concerned, they will be given a licence by the concerned authority to sell Court-fete and general Stamps and that it will be open to such private licenced stamp-vendor to appoint any clerk for attending to the transactions relating to the sale of stamps on behalf of the vendor himself. It is also contended that the prohibition contained either in Section 34 of the Court-fees Act or Section 69 of the Indian Stamp Act is only a prohibition against any person other than a licenced stamp-vendor selling stamps in his own right and not on behalf of the licenced stamp-vendor. In other words, the words 'sells or offers for sale' in Section 69 of the Indian Stamp Act and the words 'sell' and 'sale' in Section 34 of the Court-fees Act referred to a sale by a person in his own right and not on behalf of any licenced stamp-vendor.
6. I have already referred to above the provision under which the private parties may be licenced as stamp-vendors by Collectors and divisional Officers at their discretion. Any such private licensed stamp-vendor has to execute an engagement in the following terms:
'I, AB. in consideration of my being licensed to sell stamp by the Collector of C. do herebv bind myself to the Governor of Madras, in the sum of Rs... to obey all such orders concerning the sale and custody of stamps as the Collector may from tune to time issue to me, to keep a sufficient stock of all stamps which I am licensed to sell, to sell stamps at the place where I amlicensed to sell them between the hours 10 A.M. and 5 P.M., on all days except Sundays and such of the Government holidays notified in the District Gazette as are also applicable to Civil Courts, to keep such accounts and make, such reports and returns as are prescribed by the Board of Revenue from time to time, to allow any person duly authorised by the Collector at all times to inspect my accounts, books and stock, to make good all losses caused by want of reasonable care on my part or on the part of any person employed by me, and generally to fulfil all ditties devolving on me as stamp-vendor honestly and properly'.
It is pointed out by the learned Counsel that this bond refers to person employed by the licensed stamp-vendor and that this is a clear indication that a licensed stamp-vendor can employ someone to attend to the transactions relating to the sale of the stamps.
7. In my view, neither Section 34 of the Court-fees Act nor Section 69 of the Indian Stamp Act prohibits the appointment of a clerk by a licensed stamp-vendor to attend to the transactions relating to the purchase and sale of stamps. What these provisions prohibit is really a sale of the stamps independently by a person in his own right unless the prescribed authority granted a licence to him as a stamp-vendor. There is no specific rule prohibiting such an appointment. On the other hand, the reference to 'any person employed' by the stamp-vendor in the bond to be executed by him on obtaining the license, clearly indicates that it is open to the licensed stamp-vendor to employ someone as a clerk to attend to the actual business of stamp-vending, though no doubt the licensed stamp-vendor himself has to sign the endorsements on the stamps as prescribed by the rules.
8. In the present case, the argument of the learned Counsel for the respondent is that the facts necessarily lead to the inference that the entire business of stamp-vending has been assigned to the defendant by plaintiff, who alone is the licensed stamp-vendor and that such an assignment is prohibited by law. In support of this, reliance is placed upon the allegation in paragraph 3 of the plaint to the effect that the duty of the defendant was to deposit money in the Sub-Treasury and to take delivery of the indented stamps and sell the stamps at the Court and maintain a true and proper account of the above transactions.
I cannot understand this allegation as amounting to stating that the business of stamp-vending itself was transferred to the defendant. What it obviously means is that the defendant was employed as a clerk by the plaintiff to attend to these transactions on behalf of the plaintiff and as his clerk. There is no assignment of any part of the business as such. The defendant himself does not acquire any share in this business. He would get only such salary as was agreed to be paid to him and nothing more. Therefore, I am unable to agree with the view taken by the learned Additional District Judge that the suit claim is opposed to law and is not enforceable, in the view I have taken that the appointment of the defendant by the plaintiff as his clerk to attend to the transactions relating to the purchase and sale of stamps and to write the accounts is not prohibited by law.
9. The second Appeal is allowed and the judgment and decree of the learned Additional District Judge are set aside and those of the trial Court are restored with costs throughout. There shall also be a direction in the preliminary decree that, in taking account, the Court will determinewhat was the salary agreed to be paid to the defendant per month, whether it is Rs. 25/- as stated by the plaintiff or whether it is Rs. 40 /- as claimed by the defendant, and if there is arrear of salary payable to the defendant, it should be given credit to.
10. Leave to appeal is granted.