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Ganga Ram Vs. Het Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 405 of 1958
Judge
Reported inAIR1965Raj47
ActsStamp Act, 1899 - Sections 35 and 36; Evidence Act, 1872 - Sections 58; Limitation Act, 1908 - Schedule - Article 64
AppellantGanga Ram
RespondentHet Ram and ors.
Appellant Advocate S.K. Mal Lodha, Adv.
Respondent Advocate Sagarmal Mehta, Adv.
DispositionAppeal dismissed
Cases ReferredManaklalji v. Salgiya Rajmal
Excerpt:
- - mal lodha, appearing on behalf of the appellant, has raised some important and interesting questions of law before us. his first argument is that where an instrument either unstamped or inadequately stamped has been lost and secondary evidence of such an instrument has been admitted without objection from the opposite side. ' their lordships of the privy council approving this opinion observed,-their lordships are satisfied, by an examination of its clauses, that the construction of the act of 1879 adopted by the court below is correct. air 1962 sc no have held that under section 35 of the stamp act if an instrument is unstamped or inadequately stamped the validation only of the original instrument is permissible. it is now well settled that a copy of the instrument cannot be.....beri, j. 1. against the judgment and decree of the district judge, ganganagar, dated the 22nd august, 1958, who had affirmed the judgment and decree of the civil judge, ganganagar, dismissing the suit for recovery of rs. 4,300/-, a second appeal by the plaintiff was preferred to this court and it came for hearing before bhargava, j., in whose opinion the appeal involved certain questions of law on which there is a divergence of judicial opinion and therefore the same has been referred to this division bench for decision. 2. the facts relevant for the decision of this second appeal may be briefly recalled. on 17th february, 1950, the plaintiff alleges, ganpat, the father of the respondents, before us, borrowed a sum of rs. 2,600/- and executed a 'khata' in the plaintiff's book of account.....
Judgment:

Beri, J.

1. Against the judgment and decree of the District Judge, Ganganagar, dated the 22nd August, 1958, who had affirmed the judgment and decree of the Civil Judge, Ganganagar, dismissing the suit for recovery of Rs. 4,300/-, a second appeal by the plaintiff was preferred to this Court and it came for hearing before Bhargava, J., in whose opinion the appeal involved certain questions of law on which there is a divergence of judicial opinion and therefore the same has been referred to this Division Bench for decision.

2. The facts relevant for the decision of this second appeal may be briefly recalled. On 17th February, 1950, the plaintiff alleges, Ganpat, the father of the respondents, before us, borrowed a sum of Rs. 2,600/- and executed a 'Khata' in the plaintiff's book of account bearing interest at the rate of Rs. 1/9/- per cent per month. Ganpat again borrowed a sum of Rs. 100/- on 10th April, 1951. The plaintiff admits that certain payments were made towards the cash transactions and on 12th, September, 1951, Ganpat after going through the accounts acknowledged his liability in the sum of Rs. 3,360/-, and in token thereof affixed his thumb mark in the plaintiff's book of account. After the death of Ganpat, it is alleged in the plaint para four that Hetram respondent paid sum of Rs. 300/-. The document (Ex. 2.) however, says that the payment was made by Ganpat himself and this appears to be the correct position. Later on 18th July, 1952, Hetram as 'Karta' of his joint Hindu family, after examining the previous accounts, acknowledged his liability in the sum of Rs. 2,749/- and executed a 'Khata' in favour of the plaintiff, and further agreed to pay interest at the rate of Rs. 1/9/- per cent per month. The defendants paid nothing thereafter and the plaintiff was compelled to institute a suit on 14th July, 1955, for the recovery of the sum of Rs. 4,300/- including principal and interest. The suit was resisted by the defendants. It was denied that Ganpat borrowed any money from the plaintiff. Hetram further averred that he had merely put his thumb mark on the 'Khata' contained in the plaintiff's book of account as a result of undue influence of the plaintiff and that too during his minority. He repudiated any stipulation with regard to the rate of interest and also raised the plea of limitation. The defendants objected to the admissibility of the three 'Khatas' on the ground that they were not stamped in accordancewith law.

3. Accompanying the plaint, the copies of three documents, entries from the book of accounts dated 17-2-1950, 12-9-1950 and 18-7-1952, were presented to the Court. The inspection of the originals of these three documents was allowed to the defendant's counsel on 3rd September, 1955. It is alleged by the plaintiff that on 24th September, 1955 the book containing these three documents was lost. The plaintiff filed an application on 24th September, 1955 stating the circumstances in which his book of account was lost.

4. When Ramlal (P. W. 1) was being examined on 10th April, 1956, an objection was raised by the defendants in regard to the admissibility of the three copies from the lost book of accounton the ground that the original documents were not duly stamped. The trial court determined the duty and penalty payable on these documents on 13th June, 1956 and the plaintiff after paying the duty and penalty proved these copies. When the trial Court reached the stage of judgment it realised that the secondary evidence of documents which were not duly stamped was not admissible an law. Thus, it excluded from consideration thethree copies of the 'Khatas' (Exs. 1, 2 and 3) and reached the conclusion that the plaintiff had not succeeded in proving his claim and dismissed the plaintiff's suit. The plaintiff went up in appeal before the learned District Judge, who affirmed the judgment of the trial Court, and the plaintiff has now come up in second appeal to this Court, as already mentioned above.

5. Mr. S. K. Mal Lodha, appearing on behalf of the appellant, has raised some important and interesting questions of law before us. His first argument is that where an instrument either unstamped or inadequately stamped has been lost and secondary evidence of such an instrument has been admitted without objection from the opposite side. Section 36 of the Indian Stamp Act 1899 enjoins that the admission of such document into evidence shall not be questioned at any stage of the same proceeding. In support of his argument he has placed reliance on Vishram Arjun v. Irukulla Shankariah, (S) AIR 1957 Andh Pra 784, Meera Sahib v. Venkatapathi Naidu, AIR 1951 Mad 326, Ramchand Gupta v. Wazir Chand, AIR 1962 Punj 293, Satyavati v. Pallaya, AIR 1937 Mad 431, Maungo Po Htoo v. Ma Ma Gyi, AIR 1927 Rang 109 and Radha Kishan v. Laxmi Narain, 1957 Raj LW 603.

6. Mr. Sagarmal Mehta for the respondents has urged that Section 36 of the Indian Stamp Act only refers to an original instrument and not to its secondary evidence. He has relied upon Champalal v. Panna Lal, ILR (1951) 1 Raj 190, Moolchand v. Lachman, 1956 Raj LW 558: (AIR 1958 Raj 72), Chinmoyee Baxi v. Sankari Prosad Singh, AIR 1955 Cal 561, Muhammad Ayub v. Rahim Baksh, AIR 1922 Lah 401 (2), Ladha Ram Lakhi Ram v. Hari Chand, AIR 1938 Lah 90, Mt. Halima v. Emperor, AIR 1947 Lab 306, Bhagwan Das v. Amardas Shamdas, AIR 1938 Pesh 32, Co-operative Assurance Co. Ltd. v. Lachmansingh Bhagat, AIR 1951 Pepsu 24, Ponnusaminadan, v. Dorasami Ayyan, ILR 2 Mad 209, Kopasan v. Shamu, ILR 7 Mad 440, Chidambaram Chettiar v. Meyyappan Ambalam, AIR 1946 Mad 298, Hiralal Ramnarayan v. Shanker Hirachand, AIR 1921 Bom 401, Kallu v. Halki, ILR 18 All 295, and Pentayal v. Kesheorao, AIR 1920 Nag 131.

7. In order to appreciate this divergence of judicial opinion, it will be useful to examine the material statutory provisions, Section 34 of the Indian Stamp Act of 1879, provided 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. The first proviso to this section indicated the admissibility of the instrument on payment of duty and penalty. The second proviso excluded the applicability of the provisions of Section 34 to the criminal proceedings and, the third proviso laid down that when an instrument has been admitted in evidence, such admission shall not, except as provided in section fifty, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The provisions of Section 34 came to be split up in theIndian Stamp Act of 1899, being Act II of 1899 into two sections, namely, Section 35 and Section 36. The third proviso to Section 34 of 1879 Act is in terms similar to those employed in Section 36 of the Stamp Act of 1899.

8. In Raja of Bobbili v. Inuganti China Sitarasami Garu, 26 Ind App 262 (PC), the provisions of Section 34 of 1879 Act came to be considered where in the course of the proof given in the suit the appellant before their Lordships of the Judicial Committee proposed to establish any means of secondary evidence the terms of a grant, which is alleged to have been executed in the shape of a formal deed of gift. It was objected to by the other side. This was an appeal from the High Court of Madras, where the learned Judges of the High Court had held, 'that the copy should not be admitted on payment of a penalty, for the provision of the Stamp Act regarding penalty (Section 39 of Act I of 1879) prescribes that such payment shall be indorsed on the document, and presupposes that the document is forthcoming.' Their Lordships of the Privy Council approving this opinion observed,--

'Their Lordships are satisfied, by an examination of its clauses, that the construction of the Act of 1879 adopted by the Court below is correct. These clauses 'throughout' deal with and exclusively refer to the admission as evidence of original documents which, at the time of their execution, were not stamped at all or were insufficiently stamped. It is only upon production of the original writ that the Collector has the power given him, or the duty imposed upon him, of assessing and charging the penalty--a duty which he must in that case perform by writing an indorsement upon the writ submitted to him, which then, and not till then, becomes probative in law.........' The underlining (here in ' ') is ours.

9. The judicial opinion has been consistent so far that for the purposes of fulfilling the requirements of Section 35, viz., for payment of duty and penalty, it is the original instrument alone which ought to be produced. A few cases may be referred to on this point. In AIR 1920 Nag 131, AIR 1946 Mad 298 and lastly by the authoritative pronouncement their Lordships of the Supreme Court in State of Bihar v. Karamchand Thapar and Brothers Ltd. AIR 1962 SC no have held that Under Section 35 of the Stamp Act if an instrument is unstamped or inadequately stamped the validation only of the original instrument is permissible. It is now well settled that a copy of the instrument cannot be validated. The view taken in the Raja of Bobbili's case 26 Ind App 262 (PC) has been followed. In this view of the matter, the contention of the learned counsel for the appellant before us shrinks itself into the narrow question whether the word 'instrument' as employed in Section 36 of the Stamp Act has the same connotation as the word 'instrument' in Section 35. We are inclined to think for the reasons which will appear presently, that the word 'instrument' both in Sections 35 and 36 refers only to the original instrument and not to its copy. Before we state our reasons for this conclusion, it will be proper to take note of the various cases cited by the learned counsel for the parties.

10. Analysed on the chronological canvas, the position appears to be that in the year 1899 when Raja of Bobbili's case, 26 Ind App 262 (PC) was decided by their Lordships of the Privy Council interpreting the provisions of the 1879 Act, the authoritative view was that where an instrument unstamped or insufficiently stamped was not produced and secondary evidence was presented of its contents the provisions for payment of due penalty under the 1879 Act did not apply. This view was followed while interpreting the provisions of 1899 Act in Hiralal Ramnarayan's case, AIR 1921 Bom 401. In this case, secondary evidence was not permitted to be led on a written agreement even upon payment of penalty. In Muhammad Ayub's case, AIR 1922 Lah 401(2) the facts were these. The plaintiff's suit was based on an unstamped bond entered in his book of account and at the time of presenting of the plaint he produced the book of account and the copy of the bond. The copy was compared by the Court Officer with the original and the original was thereafter returned to the party and was subsequently lost. The plaintiff contended that he should be permitted to lead secondary evidence. Adopting the principles of Raja of Bobbili's case, 26 Ind App 262 (PC), the learned Judges refused such permission. We might observe that the facts in the appeal before us are practically the same as they were in this Lahore case. In 1926 when a question of this nature arose before the High Court of Rangoon in Maung Po Htoo's case, AIR 1927 Rang 109 the learned Judges took a view contrary to that adopted by the Bombay and Lahore cases, quoted above. Referring to the observations, already quoted in Raja of Bobbili's case 26 Ind App 262 (PC), the learned Judges said,--

'Read as they stand the words do appear to have that meaning, but we think that their Lordships did not intend to go so far as their words suggest.'

The conclusion to which the Rangoon High Court reached was that under Section 36, when either the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped. From this point of time namely 1926 onwards there has been a clear divergence of judicial opinion in regard to the interpretation of Section 36 of the Indian Stamp Act. One view is that the instrument, envisaged by Section 30, the admission of which into evidence would shut out all subsequent controversy must be original, and the other view is that whether original or secondary once a document has been admitted in view of the provisions of Section 36 its admission into evidence cannot be called into question at any stage of the proceedings.

11. Let us first consider the cases on which the learned counsel for the appellant has relied. In Satyavati's case, AIR 1937 Mad 431, a copy of an award which was originally engrossed on a stamp paper, and which was said to be stolen fraudulently by the defendant, was produced. Objection was raised with regard to its admissibility, but it was overruled. Venkataramana Rao, J., held that Section 36 will also apply even when secondary evidence of an instalment not duly stamped has been wrongly admitted. This view was followed by Satyanarayana Rao, J., in Meera Sahib's case, AIR 1951 Mad 326 and Vishram Arjun's case, (S) AIR 1957 Andh Pra 784. The view taken in Radba Kishan's case of our Court, 1957 Raj LW 603 does not appear to support the learned counsel for the appellant. In this case a document was lost while it was in the custody of the Court. Secondary evidence of its contents was sought to be produced. An objection was raised in regard to its admission in to evidence. Ranawat, J. as he then was, observed that the special feature of this case was that the document in question was lost after its execution had been proved by the plaintiff, and after the plaintiff had closed his evidence. The document had already been admitted into evidence after the payment of penalty and as such the other cases of our High Court (to which we shall persently come to) did not govern this Radha Kishan's case, 1957 Raj LW 603. In Ramchand Gupta's case, AIR 1962 Punj 293, Harbans Singh, J., adopted the view of (S) AIR 1957 Andh Pra 784, AIR 1951 Mad 326 and Mohammad Yusuf v. Abdul Khaliq, AIR 1944 Lah 9. The learned Judge observed that Section 35 of the Stamp Act deal with the instruments which are not duly stamped and therefore inadmissible in evidence but can be admitted into evidence if they are not of certain type on payment of penalty. This section obviously relates to the originals and has no reference to the copy. While dealing with Section 36, however the learned Judge observed that the trend of authorities was that it also applied to copies if admitted. It appears that the number of cases taking a contrary view to the one adopted in AIR 1951 Mad 326 and (S) AIR 1957 Andh Pra 784 were not brought to the notice of the learned Judge. Mohammad Yusuf's case, AIR 1944 Lah 9 does not, as has been noticed by the learned Judge, relate to the interpretation of Section 36 of the Indian Stamp Act but to the general question of admissibility.

12. The learned counsel for the respondents urged that the Lahore High Court has consistently taken the view that for the purposes of Section 36 it is only the original document which if duly admitted into evidence creates a bar to a further challenge as to its admissibility in the course of the same proceedings. He invited our attention to Ladha Ram Lakhiram's case, AIR 1938 Lah 90. This case follows Mohammad Ayub's case, AIR 1922 Lah 401 (2), which we have noticed in some detail earlier, Mt. Halima's case, AIR 1947 Lah 306 has also adopted the view taken in the cases of Ladha Ram, AIR 1938 Lah 90 and Muhammad Ayub, AIR 1922 Lah 401 (2). In Bhagwan Das's case, AIR 1938 Pesh 32 Almond, J. C., expressed the opinion that the Rangoon High Court in Maung Po Htoo's case, AIR 1927 Rang 109 did not correctly interpret the Raja of Bobbili's case, 26 Ind. App 262 (PC) and under Section 36 where the original document is itself not admissible on account of its being under-stamped, secondary evidence of its contents cannot be given. The view taken in Kopasan's case, ILR 7 Mad 440, ILR 18 All 295 and AIR 1921 Bom 401 was preferred. Co-operative Assurance Co.'s case, AIR 1951 Pepsu 24 relied upon by the learned counsel for the respondents does not apparently help to resolve the present controversy, as it is a case of Kapurthala's Stamp Act arising in different circumstances. Chinmoyee Baxi's case, AIR 1955 Cal 561 following the case of Raja of Bobbili, 26 Ind App 262 (PC) preferred the view taken in Bhagwan Das's case, AIR 1938 Pesh 32 as against the view taken in Maung Po Htoo's case, AIR 1927 Rang 109. Last but not the least are the two cases of our own Court, which have a direct bearing on the subject. In ILR (1951) 1 Raj 190, the plaintiff had filed along with the plaint a copy of the agreement keeping the original with him. Plaintiff's case came up for trial. Original agreement was stated to be lost. Trial Court allowed the plaintiff to lead secondary evidence. The agreement was insufficiently stamped. It was urged that the copy of this insufficiently stamped agreement was not admissible in law. Bapna, J., observed,--

'The view of law taken by the lower Court is entirely incorrect. It is settled law that the contents of a document which is required to be executed on a stamp, if not stamped or if insufficiently stamped cannot be proved by secondary evidence.................. It is the original documentwhich, if unstamped or insufficiently stamped, can be validated by payment of stamp duty and penalty under Section 35 of the Stamp Act. If such document is lost, the penalty cannot be levied......

A careful examination of the language of Section 36 of the Stamp Act makes it clear that it is applicable only when an unstamped or insufficiently stamped instrument has to be admitted in evidence but where the instrument itself is not produced the section has no application to the secondary evidence.'

In Mool Chand's case, 1956 Raj LW 558: (AIR 1958 Raj 72) a similar question arose before Bapna, J. and he adhered to the view he had taken in Champalal's case, ILR (1951) I Raj 190. In Moolchand's case, 1956 Raj LW 558: (AIR 1958 Raj 72) the 'Bahi' which contained the original Khata was lost and the learned, Judge held that no reason was made out to depart from his earlier decision.

13. The position which emerges from the examination of the decided cases, referred before us, may be briefly recapitulated at the cost of some repetition. Under the Stamp Act of 1879 the Privy Council deciding the Raja of Bobbili's case, 26 Ind App 262 (PC) held that only the original instrument if admitted will have the effect of shutting out all controversies regarding the payment of stamp duty at the subsequent stages of the proceedings. This view continued to hold the field and was implicitly followed in AIR 1921 Bom 401 and AIR 1922 Lah 401(2). It was in 1926 that when a question arose before the Rangoon High Court, AIR 1927 Rang 109 that the learned Judges deviated from the Privy Council's view in Raja of Bobbilli's case, 26 Ind App 262 (PC) by saying that their Lordships of the Judicial Committee) 'did not intend to go so far as their words suggest'. This created a bifurcation of views. On the one side, supporting Rangoon view are the cases reported in AIR 1937 Mad 431, AIR 1951 Mad 326, AIR 1957 Andh Pra 784 and AIR 1962 Punj 293. On the other side the line of cases which strictly adhere to the Privy Council's interpretation are reported in AIR 1938 Lah 90, AIR 1938 Pesh 32, AIR 1955 Cal 561, ILR (1951) 1 Raj 190 and 1956 Raj LW 558 : (AIR 1958 Raj 72).

14. We have given our anxious consideration to the arguments advanced before us and the authorities relied upon, and we are of opinion that the view taken by our Court in Champalal's case, ILR (1951) 1 Raj 190 and Moolchand's case, 1956 Raj LW 558 : (AIR 1958 Raj 72) is the view with which we are in respectful agreement. We find ourselves unable to agree to the interpretation, the learned Judges of the Rangoon High Court placed on the pronouncement of the Privy Council in the Raja of Bobbili's case, 20 Ind App 262 (PC) that their Lordships said more than they really meant. Let us examine the provisions of the Stamp Act to gather the true intent of the legislature. Chapter IV of the Indian Stamp Act of 1899 deals with instruments not duly stamped. Section 33 imposes a duty on every person by law or consent of parties authorised to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, to impound the same. The obvious object of this provision is to safeguard public revenues emanating from the provisions of the Indian Stamp Act. Section 34 makes special provision with regard to unstamped receipts and Section 35 imposes a prohibition on admitting the documents which were not duly stamped and further provides a levy of penalty in the cases specified in that section. Section 36, as already indicated, is an exception engrafted on Section 35 that once an instrument has been admitted into evidence the question regarding its being adequately stamped or not will not further be left in controversy. Section 37 relates to the cases of stamps of improper description and Section 38 provides that when the person impounds an instrument under Sections 33, 35, and 37, 'he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.' The first practical difficulty in permitting the copy of a lost instrument to be admitted in evidence is that copy of the copy could not be authenticated or could be sent as required by Section 38.

15. The second reason which appeals to us is that generally speaking the same words must be assigned the same meaning in the same statute, particularly when they occur in succeeding sections. Maxwell on Interpretation of Statutes (11th Edition, page 311) sums up the position in the following words :

'It has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act, Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to ascertain that meaning if possible from a consideration of the section itself, yet, if the meaning cannot be so ascertained, other sections may be looked at to fix the sense in which the word is there used.'

The word 'instrument', therefore, which occurs both under Section 35 and Section 36, cannot mean original in Section 35 as held by their Lordships in AIR 1962 SC no and mean original or copy in Section 36. For these reasons, besides those already discussed in ILR (1951) 1 Raj 190 and 1956 Raj LW 558: (AIR 1958 Raj 72), and that line of cases we prefer to hold that the word 'instrument' under Section 36 means original instrument and the learned counsel for the appellant's argument that a copy when admitted under Section 36 creates an absolute bar against a challenge, has no substance and must be rejected.

16. The learned counsel for the appellant's next argument is that the defendant having admitted the execution of the endorsement on Ex. 3 in view of the provisions of Section 58 of the Indian Evidence Act the plaintiff need not have proved anything more and he was entitled to a decree on the basis of such an admission. He has relied on a number of cases, but before we notice them it will be proper to examine the alleged admission on which reliance has been placed.

In Para 4 of the plaint it is alleged that Hetram paid a sum of Rs. 300/- on 4-11-1951 and affixed his thumb mark in the Hathbahi of the plaintiff. Further on 17-8-1952, after the death of his father, Hetram defendant paid another sum of Rs. 800/-, and after understanding the accounts acknowledged the liability of Rs. 2,749/-. In Para 5 of the plaint it is averred that the defendant No. 1 (Hetram) is the 'Karta' of the Joint Hindu family and defendant No. 2 (Partap) is a coparcener of the said family. Thus the defendant Hetram in his capacity as 'Karta', after understanding the account, acknowledged his liability in the sum of Rs. 2,749/- and agreed to pay interest at the rate of Rs. 1/9/- per cent per month and made an entry on 18-7-1952. The defendant Hetram in his written statement states that paragraph 4 of the plaint is wrong. In our opinion it is wrong being contrary to Ex. 2 itself. Hetram however concedes that the plaintiff after exercising undue influence on one occasion had obtained a thumb mark in his 'Bahi'. He was told that it was the account of his father on which the thumb mark was obtained' but it bore no interest. Thereafter it appears that an entry regarding the rate of interest was written and the defendant had never agreed to pay any Interest, Besides, the defendant Hetram adds, at the time of the putting of the thumb mark he was 17 years of age and', therefore, it was during the period of his minority that such execution was obtained. Likewise he has denied paragraph 5 of the plaint and has asserted that the defendant had on threat obtained his thumb mark which ought to be of no avail to the plaintiff and the suit should be dismissed. In his statement on oath and (again?) defendant Hetram has stated that he has denied the knowledge with regard to any money dealings that his father had with plaintiff Pannaram. He has denied that he ever paid a sum of Rs. 800/-, or any partthereof to Pannaram. He has also disowned the fact that he has signed any balance. He has stated that Pannaram coerced him and once obtained his thumb mark. He, however, states that he does not remember whether he had put a thumb mark on a 'Pana' or a 'Pati' or a 'Bahi' and the reason for this ignorance which he advances is that he was a child. He categorically denies that he never made any 'Baqui' in favour of the plaintiff. He gives his age as 14 or 15 years at the time when his thumb mark was obtained. He has added that he is an illiterate.

The question which emerges for consideration, therefore, is whether from the averments made (a) in the written statement by the defendant Hetram or (b) from his deposition before the Court, an admission could be spelt out, which could fasten the liability on him. Section 58 of the Indian Evidence Act lays down that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time are deemed to have been admitted by their pleadings. It is further provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. We have already reproduced the substance of the averments in the plaint (paras 4 and 5) and the answer thereto made by the defendant Hetram. Excepting the fact that Hetram admits that only on one occasion he had put his thumb mark on a plaintiff's book of account nothing else stand admitted, rather the case set out is that this thumb mark was obtained by undue influence, that there was no stipulation of the payment of any interest and that at the time of the said execution the defendant was of 17 years of age. From the bare admission of the execution of one document which is by no means unqualified, it is not possible to spell the defendant's admission. Their Lordships of the Privy Council in Motabhoy Mulla Eassabhoy v. Mulji Haridas, (AIR 1915 PC 2 at p. 4) have observed,--

'It is permissible for a tribunal to accept part and reject the rest of any witness's testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition, it must either be accepted subject to the condition or not accepted at all.'

In this view of the law, we are unable to deduce an admission sufficient to fasten liability on the defendant so far as the written statement is concerned. Further, the argument of the learned counsel that the execution of the document having been admitted, it can be employed to fasten the liability, objection in regard to its admissibility under Section 35 of the Indian Stamp Act notwithstanding, is also devoid of substance.

Section 35 of the Indian Stamp Act unmistakably lays down that no instrument which is not stamped shall be admitted in evidence 'for any purpose' or 'shall be acted upon'. In Ram Ratan v. Parma Nand, (AIR 1946 PC 51) their Lordships of the Privy Council have interpreted the words 'for any purpose' in Section 35 of the Stamp Act to include a' collateral purpose. Vishram Arjun's case, (S) AIR 1957 Andh Pra 784 relied upon bythe learned counsel also doe's not assist him because it is clearly opined therein 'that admissionof the execution 'and the terms of the document'renders proof of the document unnecessary.' Theunderlining (here into ' ') is ours. Inthe admission before us the terms of thedocument are not admitted. In fact theyare repudiated. Even in Firm Duli ChandMaidhan v. Panthi, AIR 1938 Lah 511 the learnedJudge ordered the admission of the document onpayment of requisite stamp duty and penalty before it could be acted upon.

In Ponnusami Chettiar v. Kailasam Chettiar, AIR 1947 Mad 422, which adopts the view taken in the earlier case--Alimana Sahiba v. Subbarayudu, AIR 1932 Mad 693--we find no discussion with regard to the words 'for any purpose' or 'to be acted upon' which are integral part of Section 35 of the Indian Stamp Act. We are in respectful disagreement with the view taken in that case for the reason that it will be against the mandatory provision contained in Section 35 if the admission of the execution of an unstamped document can be treated as a piece of admission to fasten liability. In Maung Po Chein v. C.R. V.V.V. Chettyar Firm, AIR 1935 Rang 282, the learned Judges have observed,--

'Section 35, Stamp Act, does not merely say that an instrument which is not duly stamped shall not be admitted in evidence, but it also says that the instrument shall not be acted upon for any purpose, and the passing of a decree upon such an instrument is 'acting upon' it'.

In Sohanlal Nihalchand v. Raghunath Singh, AIR 1934 Lah 606 dissenting from the view taken in Alimana Sahiba's case, AIR 1932 Mad 693, lays down that a decree cannot be passed on the basis of a pronote which js inadmissible in evidence even if the defendant admits his liability on it. Therefore, the conclusion which we arrive at is that in the first place there is no unqualified or clear admission of the liability in paras 4 and 5 of the written statement; that even if the execution of the document by Hetram may be treated to have been admitted for a moment that document cannot be employed for the purposes of extracting an admission because that would be acting contrary to the mandate of Section 35 of the Indian Stamp Act.

17. We have also examined the deposition of defendant Hetram and we are unable to agree with the learned counsel that any unqualified admission of the execution of the document could be spelt out therefrom, and even if it is for the sake of argument, then too the provisions of Section 35 of the Stamp Act would appear to forbid us from acting upon such an admission. This point of the learned counsel, therefore, also fails.

18. The next contention of the learned counsel is that the plaintiff having based his claim on the original consideration advanced, Exs. 2 and 3 could be treated as acknowledgments for advancing the period of limitation under Section 19 of the Indian Limitation Act. A reference to paragraphs 1, 2 and 3 of the plaint would show that the basis of the suit was not the original consideration but the 'Khata' executed by deceased Ganpat. Weare unable to treat the averments of the plaint as meaning that the claim of the plaintiff was moulded in such a manner as to admit the interpretation sought to be now placed thereupon by the, learned counsel for the appellant. Besides, Exs. 2 and 3 both speak of the rate of interest, and where there being a stipulation with regard to the payment of interest, we are unable to treat such a writing as a mere acknowledgment. This contention of the learned counsel also must be rejected.

19. The learned counsel for the appellant finally argued that the documents Exs. 1, 2 and 3 should be treated as account stated and a decree may be passed in favour of the plaintiff on this basis. He has relied on Maneklal Mansukhbhai v. Jwaladutt, Pilani, AIR 1947 Bom 135. Chagla, J., as he then was, expressed the opinion that if accounts are submitted and if they are accepted as correct by the other side to whom the accounts have been rendered, then in law the accounts are stated or settled, it is not necessary that the settlement of accounts should be in writing nor is it necessary that parties should sit down, compare accounts and call for vouchers, etc. All that the Court has got to ascertain is whether in fact the party to whom accounts were rendered has accepted those accounts as correct either expressly or by conduct. There is no absolute necessity that the account should be signed by the parties who had mutual dealings to make it a stated account.

In Sitaram v. Hari Prasad, ILR (1955) 5 Raj 793, Dave, J., as he then was, delivering the judgment of the Bench and referring to the provisions of Article 64 of the Indian Limitation Act hasstated,--

'That clearly shows that if the suit is based on the accounts stated then those accounts should be stated in writing and they should be signed by the defendant.'

At least on this touch-stone all the three documents do not fulfil the essential requirements of an account stated and, therefore, we are unable to accept the contention of the learned counsel that the three documents in the case before us were account stated.

Similar was the view taken by this Court in Manaklalji v. Salgiya Rajmal, 1951 Raj LW 341 (2) and Firm Seth Hiralal Hazarilal of Baran v. lagan Nath, ILR (1957) 7 Raj 613 : (AIR 1957 Raj 298). The Bombay case cited by the learned counsel is firstly distinguishable, on facts and secondly, we prefer to adhere to the view consistently taken by this Court that in order to sustain a suit on the basis of account stated, such statement must be signed by the party. This contention of the learned counsel, therefore, also fails.

20. In the result, this appeal must fail and is hereby dismissed. In all the circumstances of the case, we leave the parties to bear their own costs throughout.


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