KURUVILA MARKOSE Vs. VARKEY VARKEY

JUDGEMENT

(1.) THE defendant who is the appellant has filed the appeal against the decision of Raghavan,J.in S.A.1172 of 1962 after obtaining leave. The suit of the plaintiff based on Ext.P -1 promissory note,dated 8th July 1951 executed by the defendant was decreed in all the courts overruling his contention that it is not genuine and is not supported by consideration.It has been found by the learned single Judge that Ext.P -1 was affixed only with one anna stamp at the time when it was signed by the defendant and attested by P.W.1 and the second attestor P.W.2 before attesting Ext.P -1 pointed out that it was insufficiently stamped and it was then that three more one anna stamps were affixed to Ext.P -1 and defaced and thereafter P.W.2 attested the same.In view of this finding the contention of the defendant before us was that Ext.P -1 was insufficiency stamped when it was executed and the affixing of the three stamps was subsequent to its execution and will amount to material alteration.In support of his contention the decision in Mrs.Rohini Chandrakant Vijayakar v. A.I.Fernandes A.I.R.1956 Bombay 421,was relied on. The plea of the plaintiff was that the stamping of Ext.P -1 was in the circumstances found only at the time of its execution and in conformity with section 17 of the Indian Stamp Act and Surij Mull v.Hudson I.L.R.24 Madras 259 was relied on in support of the contention.The latter decision has been dissented from in Mrs. Rohini Chandrakant Vijayakat v.A.I.Fernandes .Section 17 of the Indian Stamp Act reads: All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution. Section 2(12)of the Indian Stamp Act defines and executed as meaning ˜signed and ˜signature &rsquo ;. The learned counsel for the defendant would therefore contend that at the time of execution in section 17 of the Indian Stamp Act will mean ˜at the time of signing and the affixing of the stamps to satisfy the requirements of section 17 has to be before signing the instrument.Section 17 of the Indian Stamp Act provides for the stamp­ing of all instruments chargeable with duty either before or at the time of execution.˜At the time of execution in section 17 of the Indian Stamp Act does not mean before the signing of the document by the executant.If an instrument is stamped immediately after it is signed and attested and the stamping forms part of the act of execution of the instrument the stamping will be considered as done at the time of execution.'Even though the stamping may be after the signing of the document by the executant it does not mean that the stamping is after the execution of the instrument.We are therefore of the view that in the face of the finding of the learned single Judge,the affixing of the three stamps and the cancellation of the same were at the time of the execution of Ext P -1. In Mrs.Rohini Chandrakant Vijayakar v .A.I . Fernandes ,the facts were that in the promissory note executed by A and B,the stamps were affixed and cancelled subsequently.The question arose whether the stamping can be considered to have been done at the time of execution.Chagla,C.J .,found on the evidence that the stamping was only after the execution of the instrument and was therefore not in accordance with section 17 of the Indian Stamp Act.The learned Judge observed: Therefore,this is clear evidence to establish that the stamping of the promissory note took place after its execution.In that case the provisions of section 17 have not been complied with and the document has not been stamped either before or at the time of execution. Mr.Kapadia Strongly relied on a judgment of the Madras High Court in "˜Surij Mull v.Hudson ( 24 Mad.259 ).In that case the executant was only,one and the promissory note was signed by him and subsequently it was stamped,and the question was whether the provisions of section 17 had been complied with,and the Madras High Court held that the uncontradicted evidence of the plaintiff shows that the acts were practically simultaneous and the stamping was therefore done at the time of execution within the meaning of section 16 which corresponded to section 17 of the present Act. With very great respect to the Madras High Court it is difficult to understand the significance of the expression practically simultaneous ;.Either the stamping is after execution or it is before or at the time of execution.If the stamping is after execution,then clearly the case does not fall within section 17.Mr.Kapadia has suggested that if the transaction of execution and stamping is one,then it could be said that the Stamping was done at the time of execution. It is clear in our opinion that section 17 requires that the stamping should be done some time before the document is executed or that a stamped paper must be placed before the executant who must execute it or just before he executes it he must stamp it and execute the document. But if the executant has already finished with the execution of the document and in the eye of the law the document could be said to have been executed any subsequent stamping,however close in time,could not be said to be stamping at the time of execution,and again when we look at the scheme of section 12(1 )(b)that also contemplates clearly that the document which is executed already bears an adhesive stamp,in other words,the execution is subsequent to the stamping of the document. We agree with the proposition that if the affixing of the stamps was only after the execution of the instrument is completed that will not satisfy section 17 of the Indian Stamp Act.When we say execution we do not mean mere signing alone.In Surij Mull v.Hudson,it was found that the stamp was affixed and cancelled in a promissory note after the executant affixed his signature to the document.In holding that the document was stamped at the time of execution within the meaning of section 16 of the Stamp Act(I of 1879)Their Lordships observed: The uncontradicited evidence of the plaintiff shows that the acts were practically simultaneous and the stamping therefore was done ˜at the time of the execution within the meaning of section 16 of the Stamp Act(I of 1879 ),which is the Act governing the present case.Even under the present Act(II of 1899 ),where ˜execution is defined as meaning ˜signature &rsquo ;,we do not think it would make any difference if the stamp is affixed and cancelled immediately after the signature,the signing and the stamping being continuous acts in the same transaction. With great respect to the learned Judges we are unable to accept the interpretation of section 17 of the Indian Stamp Act in Mrs.Rohini Chandrakant Vijayakar v .A.I.Fernandes .In our view section 12 of the Indian Stamp Act does not afford any guidance in the matter.Section 12(1 )(b)of the Indian Stamp Act relied on in Mrs.Rohmi Chandrakant Vijayakar v .A.I.Fernandes provides that whoever executes any instrument on any paper bearing an adhesive stamp shall,at the time of execution,unless such stamp has been already cancelled in manner aforesaid,cancel the same so that it cannot be used again ;.On the other hand section 12(1 )(a)of the Indian Stamp Act provides that whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall when affixing such stamp cancel the same so that it cannot be used again.If section 12(1 )(b)of the Indian Stamp Act indicates that stamping is possible before execution section 12(1 )(a)of the Act indicates that stamping after execution is possible.If a promissory note before it is signed by the executant is affixed with the stamp and then the executant signs on the stamp thereby cancelling the same then it is a case of stamping the instument before execution.What is there fore meant by the expression ˜at the time of execution of Ext.P -1? Even if the definition clause is invoked to interpret the word ˜execution in section 17 of the Indian Stamp Act,it does not affect our view.It is unnecessary to import the definition clause for interpreting the term ˜executed or ˜execution in section 17 of the Act.Execution of a promissory note under the Stamp Act and the Negotiable Instruments Act will include the act of signing,the act of affixing the stamp and cancelling it and the act of delivery of the instrument.A reasonable interpretation of section 17 of the Indian Stamp Act will only lead to the conclusion that the decision in Surij Mull v .Hudson has to be followed in preference to the decision in Mrs.Rohini Chandrakant Vijayakar v .A.I.Fernandes .The learned counsel for the defendant contended that this court in Thomman v .Usamikhan 1967 K.L.T.74 has taken the same view as in Mrs. Rohini Chandrakant Vijayakar v A.I.Fernandes .We cannot agree.The present question did not arise in Thommm v .Usamikhan and the said decision has no bearing to the facts in the appeal.We therefore hold that the appeal is without substance and we dismiss the same with costs.