Madhavan Nair, J.
1. This second appeal arises out of a suit instituted by the plaintiff-appellant for the recovery of money due under a promissory-note executed to him by the defendant Though the promissory-note now bears a stamp it has been found by the lower appellate Court that it was not stamped at -the time of its execution. The defendant raised the plea that the promissory-note ' is not valid according to law and cannot be admitted,' obviously because it was not properly stamped; but there was no issue whether the promissory-note was inadmissible in evidence on the ground that it, has not been duly stamped. The issues that were framed related to the other pleas raised by the defendant. These issues were, whether the discharge pleaded is true, whether the endorsement for Rs. 200 for interest is true, whether the suit is barred by limitation and what relief the plaintiff is entitled to. Overruling the contentions of the defendant on these issues, the District Munsif gave the plaintiff a decree.
2. In appeal, seeing that the contention whether the promissory-note is duly stamped or not would materially affect the decision of the case, the learned Subordinate Judge took a sworn statement from the plaintiff as regards the matter, framed two new issues and called for findings on them from the lower Court The issues were : (1) whether the defendant affixed stamp on Ex. A and wrote the letters ' swa ' upon it before plaintiff accepted it and paid him the consideration for it and (2) whether the affixing of the stamp after defendant had signed Ex. A would validate it. In his judgment the learned Subordinate Judge states that;
both parties have agreed that a specific issue may be framed and remitted to the lower Court for a finding on the point.
3. The findings on both the issues were in the negative and in favour of the defendant and were accepted by the learned Subordinate Judge. On these findings which showed that the promissory-note Ex. A was not stamped at the time of its execution, he held that it was inadmissible in evidence and relying on the authority of Chunilal v. Mulabai : (1910)12BOMLR466 he dismissed the plaintiff's suit. In this Court the appellant's main contention is that the first Court having admitted the document in evidence and marked it as an exhibit unconditionally the lower Court had no jurisdiction under the Indian Stamp Act to agitate the question afresh : see Ground No. 2). This argument has reference to Section 36, Stamp Act. It says:
where an instrument has been admitted in evidence, such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stampad.
4. Section 61, Stamp Act, does not touch this case. According to the decisions of this Court : see Venkatarama Iyer v. Chella Pillai A.I.R. 1921 Mad. 413, in which case the document in question was a promissory-note and Nagappa Chetty v. V.A.A.B. Firm A.I.R. 1925 Mad. 1215, the instrument having been admitted and filed as exhibit in the lower Court, the validity of its admission on the ground that it has not been duly stamped, cannot be raised in the appellate Court : see also Jagdip Singh v. Firangi Singh : AIR1928Pat155 where it was held that Section 36, Stamp Act, would apply whether the document was admitted with or without objection. The decision relied on by the learned Subordinate Judge, Chunilal v. Mulabai is clearly distinguishable. In that case the document was admitted and exhibited by the first Court owing to ' inadvertance on the part of the Subordinate Judge, ' or ' an act of some clerk of the Court done in accordance with its practice. What happened in the case as stated in the judgment at p. 469 was this:
When the document was tendered in evidence its admissibility was objected to and accordingly an issue was raised in the Court of first instance to try the question. The Subordinate Judge postponed its decision until the delivery of his judgment on the whole case and after evidence recorded on all the issues including the issue as to the admissibility of this document. In the meantime the document was exhibited as part of the evidence.
5. It was held that that was contrary to law, because the Subordinate Judge had not decided the question of its admissibility. In the judgment it is pointed out that when the Subordinate Judge came to the conclusion that the document was not admissible in evidence, the document ought to have been excluded that it was by mistake that it had crept in, and that the Court was bound to correct its mistake. In those circumstances it was held that the document in question should not be considered to have been ' admitted in evidence ' within the meaning of Section 36, Stamp Act. The facts of this case show clearly that though the question was raised by the defendant in the written statement, no issue was raised on it and no objection of any sort was taken to its admissibility till the case reached the Court of appeal. In these circumstances, the admission of the document in the first Court cannot be considered to have been due to any inadvertance or mistake. It was admitted in evidence in the ordinary course without any objection by the Court of first instance and therefore, under Section 36, Stamp Act, it was not open to the defendant in the appellate Court to question its admission on the ground that it had not been properly stamped.
6. Mr. Ramachandra Iyer argues that some questions bearing upon the stamping of the document were put to the plaintiff in his cross-examination and there-fore it must be taken that the admission of the document, on the ground that it has not been duly stamped, was objected to in the lower Court and so it cannot be said that the document has been really admitted in evidence, by the first Court within the meaning of Section 36, Stamp Act. This argument is put forward only to bring the case within the scope of the ruling in Chunilal v. Mulabai, but there is nothing to show in this case that in the first Court the document was objected to as inadmissible and that it was a mistake that it was exhibited and admitted in evidence. As already noticed there was no issue on the point and from one or two questions put to the plaintiff we cannot infer that the matter was put in issue in the lower Court or that the consideration of the question of the admissibility of the document was kept in suspense by the first Court and that fresh evidence was allowed to be adduced, tend to show that this aspect of the case was altogether a new one and it was never presented to the first Court for its consideration. The next argument advanced is that though it was wrong on the part of the lower Court to have raised the new issues, inasmuch as both the parties agreed to the procedure, the plaintiff must be considered to have waived the objection which he is putting forward and cannot therefore now revive it. The answer to this is very simple. As pointed out in Chidambara Chettiar v. Vythilinga Padayachi  38 Mad. 519:
no estoppel can be pleaded against the directions and prohibitions enacted by the statute law and against the rights accruing to any party by reason of such directions and prohibitions : see also Sitharam v. Krishnaswami  38 Mad. 374.
7. It is well-known that there is no estoppel against a statute. It is the duty of the Court to give effect to the statute in spite of the conduct of the parties: see Ramachandra Suru v. Venkalakshminarayana  37 M.L.J. 55. It is therefore not open to the Court in this case to ignore the mandatory provisions of Section 36, Stamp Act, even if the plaintiff agreed to such a course. The last argument of Mr. Ramachandra Iyer is that the result of the finding of the lower appellate Court is that there has been a material alteration of the promissory note by the plaintiff and so under Section 87, Negotiable Instruments Act the instrument becomes void and unenforceable. But the question whether an instrument has been materially altered or not is one of fact and cannot I think be allowed to be raised for the first time in second appeal. It has not been referred to in the written statement nor in the ground of appeal to the lower appellate Court. I must therefore disallow this argument.
8. In the result, the decree of the lower appellate Court is set aside and the case is remanded for disposal on the merits. The appellant will get his costs in thi3 Court; the other costs will abide the result. The appellant will get a refund of the Court-fees on the memo of appeal.