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Mt. Bibbo Vs. Rai Saheb Gokaran Singh - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtAllahabad
Decided On
Reported inAIR1937All101; 166Ind.Cas.919
AppellantMt. Bibbo
RespondentRai Saheb Gokaran Singh
Excerpt:
- - 2,650, have been found due from me on account of a promissory note dated 20th december 1922 executed by mukat singh on the back whereof payment is endorsed in my handwriting, i promise to pay the said amount due to you together with interest at the rate of 1 per cent, per mensem within three months. 1101 the document was primarily a statement of account with receipt endorsed at the end......appears to have been moulded upon section 54, stamp act, 1870(3), which has been held to exclude unstamped documents even if tendered only for collateral purposes.5. with regard to the earlier cases relied upon by counsel, it was said : 'whatever the law was before 1891, i am of opinion that this agreement was not admissible.' the learned advocate for the plaintiff has not cited before us any english case after 1891 in which any document which was insufficiently stamped has been admitted for a collateral purpose. he has relied on the full bench case of this court in kanhaya lal v. stowell (1881) 3 all 581 (fb), where the instrument was worded as follows : 'agra, 14th november 1877. due to k., cloth merchant, the sum of rs. 200 only to be paid next january, 1878.' straight, j. had in his.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit on a promissory note of 1922, the limitation according to the plaintiff being saved on account of certain payments and acknowledgments made by the defendant from time to time. The last acknowledgment relied upon by the plain, tiff was paper No. 53-C which the Court below has refused to admit on the ground that it was insufficiently stamped. The learned advocate for the plaintiff contends before us that although the document so far as it purported to be a promissory note was insufficiently stamped, the earlier portion of it which contained an acknowledgment of liability should be treated as such and should be admitted in evidence. Unfortunately for the plaintiff there is no evidence on the record to show that the original promissory note, which was not produced in this case, had even a one anna stamp affixed to it. Only a copy of it has been produced in this case which does not show that the original bore any stamp. We may however for the purpose of this appeal assume that a one anna stamp was affixed to it.

2. The document is in the following terms :

My dear Lala Kanhaiya Lal,

Whereas Rs. 5,300 half of which is Rs. 2,650, have been found due from me on account of a promissory note dated 20th December 1922 executed by Mukat Singh on the back whereof payment is endorsed in my handwriting, I promise to pay the said amount due to you together with interest at the rate of 1 per cent, per mensem within three months. I have therefore executed this promissory note so that it may serve as evidence. Dated 24th July 1928.

3. Below this appears the signature of the executant Mukat Singh. The learned advocate for the plaintiff has strongly urged before us that this document should be split up into two parts and treated as if it were two instruments written on one paper : first, a written acknowledgment signed by Mukat Singh, and the other as a promissory note executed by him, although it is only one document; it bears only one date and contains only one signature. In support of this contention he has relied on certain early English cases before the Stamp Act in England was amended in 1891. In 1849 the House of Lords had to decide a somewhat similar question in Kenneth Matheson v. Alexander Ross (1849) 9 E.R. 1101. In that case the document was a long debtor and creditor account, with items on both sides in a tabular form with the final balance noted. The document which formed part of the same half sheet of paper contained at the end an acknowledgment of the receipt of 68 9s id, being balance amount of pay-bills paid, etc., and was signed by the executant. So far as the statement of the account was concerned, no stamp duty was chargeable on it, but there was a duty payable on the acknowledgment. It was held by the House of Lords that the document could be split up into two parts, the first of which not being chargeable with duty could be received in evidence in proof of the state of the account between the parties although the last portion could not be used in evidence as an acknowledgment. Later in 1852 a document containing all the requisites to make it a valid contract, and purporting to be a receipt, though inadmissible as such by reason of its being insufficiently stamped, came up for consideration before the Lord Chancellor. It was held that it could be received as evidence of the contract though not as evidence of the receipt itself. Lastly in Rutty v. Benthall (1867) 2 P.C. 488, a document containing the assent of the creditors also contained a recital empowering a third person to execute the deed for the creditor, but was not stamped as a power of attorney. It was held that the document could be used in evidence for the purpose of proving that the creditor had given his assent to the matter. In 1891 the English Stamp Act was amended and the amended section provided that.an instrument executed in any part of the United Kingdom, or relating...to any matter or thing done or to be done, in any part of the United Kingdom, shall not, except in criminal proceedings, be given in evidence, or be available for any purpose whatsoever, unless it is duly stamped in accordance with the law in force at the time when it was first executed.

4. A divisional Court of the Probate Division in Fengl v. Fengl (1914) P.D. 274 dame to the conclusion that the document could not be used even for a collateral purpose. Sir Samuel Evans, President, after quoting the relevant section of the amended Stamp Act remarked:

That is very wide. That provision in the Act of 1891 appears to have been moulded upon Section 54, Stamp Act, 1870(3), which has been held to exclude unstamped documents even if tendered only for collateral purposes.

5. With regard to the earlier cases relied upon by counsel, it was said : 'Whatever the law was before 1891, I am of opinion that this agreement was not admissible.' The learned advocate for the plaintiff has not cited before us any English case after 1891 in which any document which was insufficiently stamped has been admitted for a collateral purpose. He has relied on the Full Bench case of this Court in Kanhaya Lal v. Stowell (1881) 3 All 581 (FB), where the instrument was worded as follows : 'Agra, 14th November 1877. Due to K., cloth merchant, the sum of Rs. 200 only to be paid next January, 1878.' Straight, J. had in his judgment, pointed out that the document contained incidental words amounting to a promise to pay while its direct and substantial character was that of an acknowledgment of debt. The majority of the Pull Bench accepted the view taken by Straight, J., and held that although the document in question was not admissible in evidence as a promissory note by reason of its being insufficiently stamped, it was nevertheless admissible on the stamp which it bore as proof of an acknowledgment of such debt. The document had been written as a memorandum and it was held that it was a memorandum for which one anna stamp duty was quite sufficient.

6. Soon after the pronouncement of the Full Bench the Negotiable Instruments Act was passed in 1881, Section 4 of which is significant and to which we shall refer presently. The other cases relied upon are two cases of this Court which are really not in point and two cases of the Madras High Court. In Govind Singh v. Bijay Bahadur Singh : AIR1929All980 the document which was in the form of a promissory note had in fact been admitted in evidence by the Court below. Accordingly under Section 36, Stamp Act, no question as to its inadmissibility could be raised in revision. The only question for consideration was whether it contained a promise to pay so as to give a fresh start for purposes of limitation. We are, therefore, unable to hold that a remark in the judgment of one of the learned Judges was intended to lay down that even if the document had not been admitted, the revisional Court should have accepted it in evidence. The two cases which support the contention urged on behalf of the plaintiffs are those of single Judges of the Madras High Court. In Gopala Padayachi v. Rajagopala Naidu : AIR1926Mad1148 Wallace, J. went to the length of holding that even an insufficiently stamped promissory note, where it was taken for an antecedent debt, can be admitted in evidence as an acknowledgment of the debt set out in itself, because the debt is a prior and pre-existing independent debt. In the case of V.R. Rakkappan Ambalam v. C. Suppiah Ambalam : AIR1930Mad485 Pandalai, J. held that an insufficiently stamped promissory note, though not admissible in evidence as a promissory note, can be used in evidence as an acknowledgment of liability where the recitals are distinct and independent of the promissory note. The learned Judge did not follow a previous ruling of his own Court given by Jackson, J., in an unreported case, but followed the view expressed by Wallace, J., in the case already quoted and also distinguished two other cases of that Court which had been cited in support of the contrary view. His main reliance was on the Pull Bench ruling of this Court in Kanhaya Lal v. Stowell (1881) 3 All. 581 (FB) which was prior to the amendment of the Indian Stamp Act. The attention of the learned Judge does not appear to have been drawn to the definition of 'promissory note' as given in the Negotiable Instruments Act. He naturally followed his own ruling in a later case in Vancheswara Sastri v. Narayana Ayyar : AIR1933Mad251 without giving any additional reasons. On the other hand, it has been held in other Courts that a promissory note which is not sufficiently stamped cannot be used as an acknowledgment of liability. Vide Bishunath Singh v. Ishri Dayal A.I.R. 1928 Oudh. 408 and Gpvomda v. Haribhan A.I.R. 1933 Nag. 391 But in these two last mentioned cases, there was not any separate acknowledgment of liability.

7. Both in England and in India the legislature has thought fit to amend the relevant section of the Stamp Act so as to make its provisions very stringent. Section 35, as it stands now, lays down that:

No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.

8. The words 'for any purpose' are very significant and undoubtedly imply 'for each and every purpose whatsoever, without any exception.' It matters little whether the purpose is the main purpose or is a collateral one. A promissory note is defined in Section 2(22) as meaning a promissory note defined by the Negotiable Instruments Act of 1881. Section 4 of the Negotiable Instruments Act defines a promissory note as

an instrument in writing...containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

9. Illustration (b) which is an illustration of a promissory note is as follows:

I acknowledge myself to be indebted to B in Rs. 1000, to be paid on demand, for value received.

10. The illustration is almost exactly similar to the document in case before the Full Bench in Kanhaya Lal v. Stowell (1881) 3 All. 581 (FB) and shows that even though there is an acknowledgment of indebtedness, the instrument is nevertheless a promissory note. The distinguishing features of the present case from those in Kenneth Matheson v. Alexander Ross (1849) 9 E.R. 1101 and Kanhaya Lal v. Stowell (1881) 3 All. 581 (FB) are that in those cases the instruments were not primarily promissory notes. In Kenneth Matheson v. Alexander Ross (1849) 9 E.R. 1101 the document was primarily a statement of account with receipt endorsed at the end. In Kanhaya Lal v. Stowell (1881) 3 All. 581 (FB) the document contained only incidental words which amounted to a promise to pay. It was primarily a memo, randum of account. Both these cases were decided at a time when the words 'for any purpose' did not occur in the relevant statute. It seems to us that the main thing to consider is whether the document is primarily a promissory note which is insufficiently stamped though incidentally it may amount to a receipt or an acknowledgment of liability. In such a case obviously the stamp must have been affixed to it as a promissory note and not as a mere acknowledgment of liability. The learned advocate for the plaintiff has urged before us that the plaintiff ought to be given the discretion to make a selection and delete a portion; out of this document, retaining the other portion and using the stamp already affixed for the purposes of the portion retained-It seems to us that the document must; be considered as a whole, and if it is art, instrument insufficiently stamped as required by the Stamp Act, then it should not be admitted in evidence for any purpose, for instance, a document of this type could not have been admitted for registration by the Sub-Registrar if, presented to him. If, however, there are any recitals in a document which, as such, are not chargeable with duty, then it may be possible to use such recitals as evidence for an entirely different and independent matter. But where the instrument as a whole is insufficiently stamped we do not think that it would be proper to allow it to be split up into two portions and to regard the duty paid on it as having been paid on the portion which it suits the plaintiff to retain although the primary purpose of the document was contained in the other portion. As already noted in the present case, the executant had merely given the reason why he promised to pay the amount, the reason being that the amount had been found due. The whole document is contained in one sentence and the latter portion on which the learned advocate for the plaintiff relies merely refers to the said account without specifying the exact sum.

11. We are of opinion that this document was intended to be, as it professed to be a promissory note and was stamped as such. It is not possible to split it up into two portions treating the introductory portion as a separate and independent acknowledgment for which one anna stamp was affixed, and treating the rest of it as a promissory note wholly unstamped. The view taken by the Court below that the document is not admissible in evidence is in our opinion, correct. We accordingly dismiss the appeal with costs.


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