1. This is a revision application by the defendant against the order of the Munsif Nathdwara dated 9th of July 1958.
2. The facts giving rise to it are that the non-petitioner filed a money suit against the petitioner on the basis of a document dated 25-9-1953. The defendant's objection in the trial court was that the said document waa a promissory note and since it was unstamped, it was inadmissible in evidence. The learned Munsif dismissed this objection. He has come to the conclusion that the document in dispute was a bond and not a promissory note and, therefore, it can be admitted in evidence on payment of requisite stamp duty and penalty.
3. The document runs as follows :--'Sidh sri bhai sri Ghisulalji vald Nandlalji Lodha Nathdwarayala sri Bherulal vald. Gordharji Sikligar Nathdwarawala Ki Jaysri Krishna Van. chavsi. Apranch aaj miti Karkhana ka karigara ne tumara pas thi rupaya vagera deyaya tatha mare ghare saman rokar vagera Hya jira kul rupaya 1887/5/9 khara dena hai so ye rupaya din ath me dedunga tatha stamp adhi nahin hova thi ya teep likh dini chhai so sabat rahe Samwat 2010 ka Asoj Vad 3 tarikh 25-9-53. sd: Purushottam Bherulal ke kahne se likhi hai sd/- Bherulal Sakh 1 Radhakisnan Chhapanal ke Bherulalji siklighar ke kavasu sd: Bherulal.'
4. Learned counsel for the petitioner has urged that the said document fulfils all the requirements of a promissory note and, therefore, is should have been treated as such. This argument, in my opinion, is not correct. This is a document which is attested by a witness. The definition of a bond as given in Section 2(5) of the Indian Stamp Act includes
'any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another.'
In the present case also, the instrument is attested by a witness and it is not payable to order or bearer and therefore, it comes within the ambit of the definition of bond. Learned counsel has referred to a decision of this Court Brijraj Sharan v. Raghunandan Saran 1956 Raj LW 33: ((S) AIR 1955 Raj 85) (A), but in that case the document was not attested by any witness. Learned Counsel has next referred to the case of Pudai Sheikh v. Mt. Bilasi AIR 1939 Oudh 107 (B) and urged that in that case the document was held to be a promissory note in spite of its being attested by witnesses.
A perusal of that case would show that the wordings of that document were very different and in that case there was 'a promise to pay the money on demand.' and therefore, if was held to be a promissory note. No such words appearin the present document. The language of this document shows that it was written for evidencing the debt obtained by the debtor Bherulal the matter and the purpose for which the debt was incurred and then an express promise to pay up the debt within the time was given therein. It is Quite clear from the language of this document tjhat it was not meant to be executed as a negotiable instrument and. in the language of their Lordships of the Privy Council sued in the case of Mohammed Akbar Khan v. Attar Singh AIR 1936 PC 171 at p 174 (C), 'it would be a somewhat unusual Visitor in the accustomed circles of negotiable paper.'
It was further observed by their Lordships in the same case that 'Receipts and agreementsgenerally are not intended to be negotiable, andserious embarrassment would be caused in commerce of the negotiable net were cast too wide.'In my opinion, these remarks very fittingly applyto the present case. I see no substance in thisrevision application and it is therefore summarilydismissed.