1. This is a revision preferred by the plaintiff who instituted a suit in the Court of the Small Causes at Hyderabad for the recovery of a sum of Rs. 850/- on the foot of a promissory note dated 13-3-1957 executed by the first respondent herein, Sarojini Devi. The second respondent was used as a surety, the said liability having been undertaken by writing on the promissory note itself. The executant, the first respondent, was ex parte. The second respondent denied the suit transaction and her liability as surety thereunder. A further objection was taken by the second respondent (D-2), who contested the suit, that there has not been an effectual cancellation of one of the adhesive stamps which the instrument bears, that for the said reason the instrument shall be deemed to be unstamped and, as such, inadmissible in evidence.
2. The learned Judge disbelieved the case of the respondent (the contesting defendant) on merits but had upheld her contention that the suit pro-note was inadmissible and so dismissed the suit.
3. The point raised in this revision is that the learned Judge was in error in considering that one of the adhesive stamps affixed to the instrument was not cancelled in an effectual manner and inadmissible in evidence for that reason. It is the further contention that the question whether a stamp has been cancelled in an effectual manner has to be decided on the facts of each case. Thus, the point arising in this revision is whether the view of the learned Judge warrants interference in revision.
4. Ex. A. 1 is the suit promissory note for a sum of Rs. 850/-. It is stamped with two-one-anna stamps affixed one beneath the other. The upper stamp is crossed by a horizontal line; one beneath it bears the signature of the first respondent and the date of execution of the suit promissory note. This pattern of the instrument has come in for criticism that the upper one anna adhesive stamp was not cancelled in a manner that it cannot be used again. The relevant provision of the Hyderabad Stamp Act, which was in force on the date of the instrument is in these terms. Section 10:
'Whoever affixed adhesive stamp to any duty payable instrument which has been executed by any person shall, when affixing stamp, so cancel or obliterate the same that it cannot be used again; and
(b) Whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of such execution, unless such stamp has been already cancelled or obliterated in the manner aforesaid, so cancel or obliterate the same that it cannot be used again.
(2) Any instrument bearing an adhesive stamp which has not been so cancelled or obliterated that it cannot he used again shall, so far as such stamp is concerned, be deemed to be unstamped.
(3) The person required by Sub-section (i) to cancel or obliterate an adhesive stamp may cancel or obliterate it by writing on it his name or initials or the name or initials of his firm, with the true date of his so writing or in any other effectual manner'.
A plain reading of this section would indicate that the section postulates the cancellation of a stamp in a manner that it cannot be used again. The provision also indicates that cancellation of a stamp may be done by writing the name of the executant on it or initialling the same or in any other effectual manner. There can be no controversy that the provision does not say that cancellation has to be effected only by signing the name. It would appear that advisedly this provision was introduced to give effect to the customary ways of cancelling stamps obtaining in the law merchant. The true test, therefore for determining whether an adhesive stamp has been effectually cancelled is whether an ordinary man would, on seeing the stamp, believe that it had already been used so as to preclude him from using it again. This question, in its very nature, is one of fact to be decided on an examination of the stamp in each particular case. Having a careful look at the instrument in question, it would be difficult to say that the stamp which bears a line across it would carry an impression that it was not used. It is sufficiently indicative of its user.
The learned Judge of the Small Cause Court has relied on a decision of a single Judge of the Rangoon High Court in U Kyaw v. Hari Dutt, AIR 1934 Rang 364 for coming to a different conclusion. That was a case of a promissory note for Rs. 250/- which bore a one anna stamp. It would appear that it should have been properly stamped with two one-anna stamps. The plea of the defendant was that it was insufficiently stamped and therefore, not admissible in evidence. The defendant also took the plea that there was no consideration for the note. It would appear that evidence was led to show that there had been two stamps on the promissory note and that one of the adhesive stamps was missing. That explanation was considered too ingenious to be worthy of belief and rejected. On the assumption that there were two stamps and that one of the stamps was crossed by drawing a line across it, it was observed that it was not cancelled within the meaning of Section 12 of the Stamp Act. A careful reading of the decision shows that the case of the plaintiff that it was properly stamped with two stamps was disbelieved. The other observations were incidental and do not appear to have really been formulated for the decision of that case. Even so, it is found that a contrary view was expressed by the same Court in J.N. Ezekiel v. E. Mordecai, AIR 1937 Rang 408 at p. 410. That was a case where there was a line across a stamp. The learned Judge was of the view:
'Plainly a stamp can be as effectually cancelled by a line deliberately drawn across it with the object of cancelling it, as by writing a name or a date across it'.
The same question arose for consideration before a Bench of the Allahabad High Court in Mahadeo Kori v. Sheoraj Ram Teli, 521nd Cas 974 : (AIR 1919 All 196). In that case the defendant-appellant had written his name close to the stamp on the left hand side. He then continued the line which formed the upper portion of the writing in the Hindi character across the face of the stamp, and immediately thereafter continued his writing. It appeared to the learned Judge that the executant intended to effect a definite cancellation of the stamp, and that the parties at the time regarded the cancellation as sufficient.
5. The learned Judge of the Small Cause Court appeared to be guided as well by a ruling in Virbhadrapa Bin Adrashapa Javli v. Bhimaji Balaji Saraff, ILR 28 Bom 432, where a Single Judge took the view that the cancellation was ineffective within the meaning of Section 12(3) of the Indian Stamp Act if merely two parallel lines without more were drawn across it. But, in a later decision of the fame High Court In Re Tata Iron and Steel Co., Ltd. AIR 1928 Bom 80 the said view did not find favour and was expressly dissented from. A reference was made to the decision of the Allahabad High Court cited supra, where a single line drawn across a stamp was held to be sufficient. It was said in the latter case that it is a matter of opinion on the facts of each case. In the said case a line was drawn across the face of two stamps, two parallel lines were drawn across the third stamp, three parallel lines were drawn across another stamp and two lines crossing each other at an angle on yet another stamp. It was expressed that the stamp had been cancelled so that they could not be used again.
6. It is thus plain that no hard and fast rule can be laid down in regard to the cancellation of adhesive stamps affixed to an instrument. Each case has to be decided on its own peculiar facts.
7. As I have expressed in the foregoing, a perusal of the stamp in question affixed to the promissory note, Ex. A-1 in the instant case leaves no doubt that it was cancelled 'in an effectual manner so that it could not be used again'.
8. For these reasons I set aside the judgment of the court below and remand the suit O. S. 459/1 of 1957 for fresh trial and disposal according to law. Costs of this revision will be costs in the cause.