1. Plaintiff, here respondent, in his plaint described his claim as for money due with reference to a memo. This memo, Exhibit A, is, there is no doubt, so worded as to come within the definition of a promissory note and we have not been shown how in the circumstances of the case it can be otherwise regarded. It however bears no stamp; but no objection being taken and issue formally joined as to its admissibility in evidence, the District Munsif treated it as an agreement, collected duty and penalty accordingly and exhibited it. There is no doubt that he erred in doing so. But we have to decide whether Section 36 Indian Stamp Act (II of 1899) debarred the lower appellate Court and debars us from correcting his error, that is, whether Section 36 is applicable, even when the instrument admitted in evidence is one which like Exhibit A, is not only not duly stamped, but could not in any circumstances be rendered 'admissible by payment of duty under Section 35. The answer to this question cannot be affected in the present case by the District Munsiff 's mistaken action in collecting a duty and penalty which were not applicable, hut must be based on general considerations.
2. These considerations are on the side of defendant, that to uphold the District Munsif's action would authorise an evasion of the law, which requires the stamping of such documents at execution and would entail that appellate courts must under Section 36, condone conduct in the lower court which Section 35, by implication absolutely forbids; for plaintiff, that the language of Section 36, is subject to no exception, although one could easily have been made, if any had been intended, when the stamp law was re-enacted in the present Act after the construction advocated by defendant had been rejected by a Full Bench of one High Court in Devachand v. Herachand Kamaraj I.L.R (1889) Bom. 449. In fact the arguments here have been similar to those, on which the dissenting judgments in that case were founded; and I respectfully follow the decision of the Full Bench, by which the conflict was settled in favour of the view supported by plaintiff, both on its merits and because it is consistent with the opinion expressed obiter in Ramasami Chetty v. Ramasami Chetty I.L.R.(1882) Mad, 220 the only case in point which has been cited.
3. I observe in doing so that this view gives effect to what, to judge by English authority as to similar provisions, should be regarded as the policy of the law, that the decision of the trial judge as to the sufficiency of a stamp must be final in all cases. That is the effect of the decision in Blewitt v. Tritton (1892) 11 Q.B. 327 and it may be pointed out that as the court of appeal there was dealing with a document, the defect in which could not be cured, under the English Order XXXIX, Rule 8, which refers only to documents stamped insufficiently or not at all under Section 36 at present under construction, with its more general reference to documents 'not duly stamped, ' the reasons against allowing the exception for which defendant contends, are stronger.
4. I would confirm the lower appellate court's decision on this ground and it is therefore unnecessary to consider whether plaintiff can succeed independently of Ex. A. The second appeal is dismissed with costs.
5. I would follow the decision in this point in Ramasami Chetty v. Ramasami Chetty (1892) 11 Q.B. 327 and therefore agree.