1. The plaintiff's suit brought for the return of Rs. 300 borrowed on a promissory note which not being properly stamped was inadmissible in evidence was dismissed on the ground that the suit cannot be maintained in view of the decision of this Court in Muthu Sastrigal v. Viswanatha Pandara Sannadhi AIR 1914 Mad 657.. The only question is whether that decision must be treated as settled law or in view of the opinions that have been expressed in later cases, whether the matter requires further consideration. The remarks which are supposed to cast doubt upon Muthu Sastrigal v. Viswanatha Pandara Sannadhi AIR 1914 Mad 657 are those of Srinivasa Ayyangar, J. in Chockalingam Chetty v. Annamalai Chetty (1916) 34 IC 417, of Wallace, J. in Gopala Padayachi v. Rajagopala Naidu : AIR1926Mad1148 and of Abdur Rahim, J., in Shanmuganatha Chettiar v. Srinivasa Ayyar (1917) 40 Mad 727. The remarks of the two former learned Judges are to the effect that a note or bill given for consideration, either contemporaneous or antecedent, is only a conditional discharge and that, when the note or bill fails, a suit may be brought on the consideration. The remarks of the third learned Judge are to the effect that there is no reason why a suit should not be maintainable on the consideration for an inadmissible note even when that consideration is contemporaneous with the note.
2. But there are other cases in which the validity of the decision in Muthu Sastrigal v. Viswanatha Pandara Sannadhi AIR 1914 Mad 657, was considered by other learned Judges of this Court, namely, by Madhavan Nair, J. in P. Somaraju v. Venkata Subbarayudu : AIR1925Mad351 , by Curgeaven, J. in C.R.P. No. 1486 of 1928 and the latest by Anantakrishna Ayyar, J., in Alimune Sahiba v. K. Subbarayudu AIR 1932 Mad 693. In the first of these cases, Madhavan. Nair, J., refused to treat the decision as weakened by the remarks first above referred to and declined to send the matter before a Bench. Both the learned Judges also treated the matter as beyond dispute and, in that view, I am not prepared to say that the decision requires further consideration.
3. It seems to me that the question is not whether a note or a bill is merely a conditional payment or discharge of the consideration for which it is given whether the consideration be contemporaneous or antecedent. It might be that,, and the suit is therefore maintainable on the consideration when a payment is not made on the note or bill. In the case of a note or bill given for contemporaneous consideration which is not paid by the party liable on it, a suit on the consideration would certainly lie against the party liable for the consideration, who may or may not be the party to the note or bill. That is all the remarks, referred to in the first of the three above cases, in my opinion, mean. But the point of the decision in Muthu Sastrigal v. Viswanatha Pandara Sannadhi AIR 1914 Mad 657, is not dependent on the conditional or other of the payment or discharge which a note or bill amounts to, but it depends upon Section 91, Evidence Act, which enacts that where the terms of a contract, grant or disposition of property have been reduced to the form of a document, no other evidence can be given about such terms than the document itself or secondary evidence of it. In the case under discussion, the assumption is that where the consideration for the note is contemporaneous with it, the note is the complete expression of a contract between the parties. In circumstances where that can be correctly stated, where the note becomes inadmissible in evidence,, no other evidence about the terms of the contract can be given because the writing is the contract. But where the consideration is not contemporaneous but antecedent, as where a valid note is renewed by another which is improperly stamped or where a note or bill is given for moneys previously advanced or for any other kind of consideration which in fact and in substance is anterior in time to the date of the note, then the note is not deemed to be a complete expression of the terms of the contract between the parties which are deemed to include not merely the note but the transaction which gave rise to the consideration. When these are the facts, although the note is excluded, the consideration is allowed to be proved because Section 91, Evidence Act, does not stand in the way of that proof being given.
4. The decision of the lower Court was right and this petition must be dismissed with costs.