1. This is a second appeal by the plaintiffs in a suit for recovery of money.
2. The appellants Mool Chand and Chaju Lal instituted a suit in the Court of Civil Judge, Sawai Jaipur, Amber and Dausa on the 15th of August, 19415, against Rupa and his two sons Lachman & Dhanna, in the allegations that the defendants had money dealings with the plaintiffs for many years, & on second Sawan Sudi 15, Samvat 1996 (29th August, 1939), they made up, the previous accounts, and admitted a sum of Rs. 1063/- to be due against them, and got a khata executed in the bahi of the plaintiffs by the hand of Ganesh Patwari, and affixed their signatures thereon after putting a one and ticket on the khata, it being agreed that the rate of interest payable was one rupee per mensem. The plaintiffs claimed Rs. 1753/- inclusive of principal and interest after giving credit for Rs. 50/- alleged to have been paid on 16-8-1941.
3. The defendants denied the execution of the khata, and pleaded that the plaintiffs had obtained certain decrees for the moneys which had been outstanding against them, that thesedecrees had been satisfied, and nothing remained due against the defendants.
4. By the time the evidence came to be recorded, a theft took place at the house of the plaintiffs, and the bahi containing the document was alleged to be stolen. The trial court recorded evidence of the loss of the original, and by an order dated 11-10-1946, permitted the plaintiffs to produce secondary evidence of the document. After trial, the trial court decreed the suit.
5. The defendants went in appeal, and the learned District Judge held that although the fact of the dacoity at the house of the plaintiffs had been proved, it had n t been proved that the particular document had been stolen by the dacoits. He also held that the secondary evidence, even if held admissible, was insufficient to prove that the document, which was Ex. 7, had been executed by the defendants. He accordingly accepted the appeal, and dismissed the suit.
6. In this second appeal, a preliminary point was raised by learned counsel for the respondent that the original document, according to the allegations of the plaintiffs, bore a stamp of one anna only. The document amounted to an agreement, and was insufficiently stamped as an agreement. The secondary evidence of a document insufficiently stamped and lost was not admissible under the law.
7. Learned counsel for the appellant contended that the document amounted only to an acknowledgment, and as an acknowledgment it was sufficiently stamped. It was further argued that its copy having been admitted by the lower court, no objection could now be taken, as provided by Section 36 of the Stamp Act. Learned counsel relied for the second proposition on Satyavati v. Pallaya, AIR 1937 Mad 431 (A), Herbert Francis v. Muhammad Akbar AIR 1928 Pat 134 (B), Maung Po Htoo v. Ma Ma Gyi, AIR 1927 Rang 109 (C).
8. It appears to me that these authorities are directly opposed to the observations of their Lordships of the Privy Council in the Rajah of Bobbili v. Inuganti China Sitarasami, 26 Ind App 262 (D). In fact, the observations of the Rangoon High Court are that the observations in the case of Rajah of Bobbili (D) prohibit the reception of secondary evidence of a document insufficiently stamped and lost. The learned Judges get away from the situation by an observation that 'their Lordships of the Privy Council did not intend to go so far as their words suggest.' In the Madras case (A) there is only a passing observation -that
'section 36 of the Stamp Act will also apply when secondary evidence of an instrument not duly stamped has been wrongly admitted',
and no reasons are given for that observation, which, as stated above, is directly against the Privy Council authority.
9. In the Patna case (B) the document was admitted on the ground that it had been executed out of British India, and the portion whichwas sought to be acted upon was not charge able with stamp duty, and a further obiter was made that Section 36 was also applicable.
10. It may be observed that the Madras case is a Single Bench case. A contrary view was taken in Muhammad Ayub v. Rahim Bakhsh AIR 1922 Lah 401 (2) (E) where relying on the Rajah of Bobbili's case (D), it was held that; secondary evidence of an unstamped document, which had been lost or destroyed, could under no circumstance be allowed. This case was followed by the same Court in Ladha Ram Lakhi Ram v. Hari Chand AIR 1938 Lah 90 (F). The point came before this Court in Champalal v. Pannalal 1051 Raj LW 258 (G) and it was held that
'the contents of a document which is required to be executed on a stamp, if not stamped or is insufficiently stamped, cannot be proved by secondary evidence',
'Section 36 is applicable only when as unstamped or insufficiently stamped instrument has to be admitted in evidence out where the instrument itself is not produced, the section has no application to the secondary evidence.'
I adhere to the view expressed by me in Cham-palal's case (G) and admissibility of secondary evidence of the document in question would depend on the question whether the original was or was not sufficiently stamped. That document, when translated, is as under:
'Account of Rupa, Lachhma, Dhanna Patel Narnoli s/o Jhera, dated Second Sawan Sudi 15, Samwat 1996, (carrying) interest at 1 per cent (p. m.)
Rs. 50/- . . .
1083/- Rs. Balancedue after taking ac-counts Rs. 1063/-,in words Rupees one thousand and sixty three, from secondbahi. This account is payable toMoolchand Chhajulal. Signed Rupa Lachhma Dhanna Patel by the pen of GaneshPatwari.
Stamp Dated 29th August, 1939 Thumb impression of Rupa. Thumb impression of Lachhma signed Dhanna''.
11. Learned counsel for the appellant contended that the two earlier lines were separate-from the rest of the document, and the two portions should not be read as one document. It was argued that the opening lines only indicate that it was an account of the defendants, while the document really executed in the second portion which is nothing more than an acknowledgment that the debt then remaining due against the defendants was Rs. 1063/- He relied on Ramprasad Ram Kumar v. Parshottam Halwai AIR 1933 All 256 (FB) (H).
12. In my opinion the Allahabad case (H) is distinguishable. In that case the creditor wrote out a certain entry in his cash book mentioning the loan advanced to the defendant and that it carried interest at a particular rate. Thereafter there was a certain entry in the pen of thedebtor, which amounted to saying that a certain amount had been borrowed. It was held that the two entries had been written by different persons, and that the first entry was not necessarily a part of the second, and it may well be possible that the debtor did not know what had been written earlier. In the present case the evidence of the plaintiff is that Ganesh Patwari was called by the defendants, and he wrote out the entire document at the instance of the defendants. In the plaint there is mention that the interest at 1 per cent per mensem was agreed to be paid. The document in the present case cannot be broken into two parts, andtaking the entire document, there is no doubt in my mind that it amounts to an agreement.
13. Learned counsel for the appellantcontended that an agreement was not defined in the Indian Stamp Act, and, therefore, it could not be said that the document in question required a stamp other than for an acknowledgment,
14. While an agreement is not defined in the Stamp Act, its definition is found in theContract Act that
'Every promise and every set of promises, forming the consideration for each other, is an agreement.'
The document in the present case contains a stipulation to pay interest at 1 per cent per mensem, and in a case where a document besides being an acknowledgment includes a stipulation to pay interest, it becomes an agreement, That proposition has been well settled, and the leading case is Firm Shiv Ram Punnun Ram v. Faiz, AIR 1942 Lah 50 (FB) (I). The consideration is the debt outstanding from previous account. In my opinion the document was insufficiently stamped as an agreement, and its secondary evidence was, therefore, inadmissible.
15. The liability against the defendant cannot thus be proved, and the claim of the plaintiffs must fail. The appeal is accordingly dismissed. I will not allow costs to the defendant-respondents as this point was not raised in the lower courts.