SEHILEZADI NAZEERUNNISA BEGUM Vs. LAKSHMAN

JUDGEMENT

(1.) The suit out of which this appeal arises was founded upon a promissory note dated 13th April 1951 for recovery of O.S. Rs. 480/- from the defendant. The defendant-respondent denied the execution of the suit promissory note and also raised an objection as to its admissibility by reason of its being insufficiently stamped and also that the plaintiff was a money lender and since he had not complied with the provisions of the Hyderabad Money Lenders' Act by obtaining a licence and furnishing the annual account to the debtor the suit was liable to dismissal. Both the courts below have found against the respondent in regard to the execution of the document and as to the compliance with the provisions of the Money Lenders' Act but they held that the suit was liable to dismissal on the ground that the promissory note had not been stamped sufficiently and properly.

(2.) The learned advocate for the appellant in this second appeal argued that the finding of the courts below cannot be upheld in view of the express provision of Section 34 of the Hyderabad Stamp Act. In order to fortify his argument he made a reference to Ma Pwa May v. Chettiar Firm, AIR 1929 PC 279 , and Bhagwandas v. Chhaganlal, AIR 1944 Bom. 835 . The respondents have not preferred to appear in this appeal. In my opinion, the point canvassed before me by the learned advocate for the appellant has force. See. 34 of the Stamp Act provided that when 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 stamped. The authorities cited on behalf of the appellant categorically support the contention advanced on his behalf. The lower appellate court has repelled the contention of the appellant on the authority of Yerri Swami v. Madiga Chinna Vennurappa AIR 1949 Madrass 300 . I have gone through the authority cited by the court below but I find that it is distinguishable on the ground that in that case the document in dispute was marked as an exhibit. It does not show whether it was shown to the witness for identification. In the present case, I find that the disputed document was not only marked as exhibit but also shown to the witnesses for purposes of identification and that is clearly a case of admission of the document in evidence. In a recent decision of the Supreme Court reported in Annamalai Chettiar v. Veerappa Chetliar AIR 1956 Supreme Court 12 it has been held:

(3.) Therefore, the ground upon which the lower appellate court has dismissed the suit is not sustainable.