KURUVILA MARKOSE Vs. VARKEY VARKEY

JUDGEMENT

(1.) The defendant in a suit on a promissory note is the appellant. His contention before the lower courts was that the promissory note was not genuine; but the lower courts have not accepted this. On the evidence on record and by comparing the signature and hand writing with the admitted signatures and hand writing of the appellant, the lower courts have held that the promissory note was genuine. The admitted hand writing and signatures are available in Ext. D-1 and D-2; and it is not very easy to say that they are exactly similar to the hand writing and signature in the suit promissory note. Still, being a second appellate court, I agree with the lower courts. Mr. P. K. Krishnankutty Menon, on behalf of the appellant, then pleads that the appellant might be given an opportunity to produce expert evidence on the question. It does not appear that the appellant made any such prayer before the lower courts. The suit was filed in 1954; and it may not be proper to accede to this request after twelve years and send back the case to the Trial Court. Therefore, this prayer is also rejected.

(2.) The next argument of the appellant's counsel is that the promissory was not duly executed, because, at the time it was signed by the executant, were was only one stamp of one anna and three one anna stamps were affixed only subsequently. In support of this contention the counsel relies on the Division Bench ruling of the Bombay High Court in Mrs. Rohini Chandrakant Vijayakar v. A. I. Fernandez (AIR 1956 Bom. 421). In that case there were two executants in the promissory note; and both of them signed before stamps were affixed. Then stamps were affixed; and one of the executants signed again over the stamps thus cancelling them. Chagla, C. J., who spoke for the Division Bench, has observed that the promissory note was not properly executed.

(3.) Sub-section 12 of S.2 of the Indian Stamp Act defines the terms 'executed' and' execution' as to mean 'signed' and 'signature'. S.17 of the Act provides that all instruments chargeable with duty shall be stamped before or at the time of execution. From these provisions the counsel argues that the signing must be after the affixing of the stamp or at least simultaneously with the affixing of the stamp. In other words, if the signature is put first and then stamps are affixed, the execution is not proper. That is the reasoning of Chagla, C. J. also.