1. This is a civil revision by a plaintiff whose suit has been dismissed on preliminary issues by a Small Cause Court. The plaintiff sued on a document dated 30th September 1930, to recover Rs. 365-2-0. The plaintiff alleged that Rs. 400 was due to him from the father of defendants, who was dead at that time, and that the defendants agreed to pay the amount and executed the document in suit. The lower Court, held that it, had not been proved that the document, was executed for consideration, and further it stated that defendant 1 forged the signature on the document of defendant 2. At the same time the Court held that defendant 2 was present when defendant 1 wrote the signature of defendant 2 on the document. The definition of a false document is given in Section 464, Penal Code, and it shows that for forgery a signature must be made by a person who knows that he has not got authority from the person whose signature he purports to make an it. As defendant 2 was present when defendant 1 made a signature for defendant 2 on the document, in suit, I consider that defendant. 2 must he held to have authorized that proceeding and that there could be no question of want of authorization or forgery in law.
2. The next question is what is the nature of the document. The lower Court states that, it appears to be an acknowledgment, but as interest is mentioned in it so it cannot be called an agreement. The document sets out the fact of the amount of debt being owing from the father of defendants and then states that the total of Rs. 400 will he paid ,in four installments on the dates fixed in four years with interest at 1 per cent per mensem. This appears to me to be an unconditional promise to pay and therefore the document is a promissory note within the meaning of Section 4, Negotiable Instruments Act. The second paragraph of Section 5 shows that a promissory note may be by instalments. As. the document is a promissory note a presumption arises under Section 118(a). Negotiable Instruments Act that it was made for consideration. The lower Court has not taken this presumption into account because it did not hold the document to be a promissory note. The decision therefore on the question whether there was consideration or not has been vitiated by the failure to consider this presumption of law.
3. Learned Counsel for the defendants-respondents argues that the document was not properly stamped. The document bore a stamp of two annas. As a promissory note came under Article 49, Schedule 1. Stamp Act, and it was payable otherwise than on demand, the duty was the same as under Article 13. a bill of exchange, and under Article 13, as some of the instalments wore payable at more than one year after date the duty would be the same as on a bond, that is Rs. 2 under Article 15 on a bond for an amount exceeding Rs. 300, but mot exceeding Rs. 400. Learned Counsel therefore argues that under Section 35, Stamp Act. the instrument being a promissory note should not have been admitted into evidence, and he further points out that a, promissory note which is insufficiently stamped cannot be accepted on payment of the stamp duty and penalty as a promissory note is excepted by Sub-section (a). This argument, is undoubtedly correct, but the instrument has been admitted in evidence by the lower Court. Under Section 36 where an instrument has been admitted in evidence such admission shall not, except as provided in Section 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. Section 61, Sub-sections (1) and (2) gives a Court in the exercise of civil jurisdiction, being the Court to which appeals lie, a jurisdiction to deal with the case of instruments which should not have been admitted in evidence without the payment of 'duty and penalty under Section 35 or without the payment of a higher duty than those paid. It does not give such Court any jurisdiction to deal with the case of an instrument which should not have been admitted at all. The language of Section 36 is perfectly clear and as this Court has got no authority to deal with the instrument under Section 61 therefore the instrument cannot now be called in question on the ground that it was not duly stamped. The objection therefore cannot be taken in this Court.
4. I consider therefore that the decree of the lower Court must be set aside and I set it aside and I remand the case to the lower Court for disposal according to law, that is, it will take into account the presumption which arises under Section 118(a), Negotiable Instruments Act, on this instrument as a promissory note. Costs hitherto incurred will abide the result. The plaintiff will receive the court-fee in this Court under Section 13, Court-fees Act.