KESHARI CHAND SURANA Vs. ASHARAM MAHATO

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for recovery of money due on five instruments described in these proceedings as hundis. The substantial question in controversy between the parties is, whether these instruments have been properly admitted in evidence under Section 35(a) of the Indian Stamp Act. The documents are engrossed on paper which bears an impressed stamp of four annas each, They are, each of them, attested by a witness, and the money secured there by is not payable on order or demand. The contention of the appellants is that they were not admissible in evidence even upon fulfillment of the conditions mentioned in Section 35(a) of the Indian Stamp Act. That section is in these terms: "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped." Then follows Clause (a) providing that any such instrument, not being an instrument chargeable with a duty of one anna (or half an anna) only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion." It is consequently plain that unless the instruments before us fall within the description of a bill of exchange or a promissory note or an instrument chargeable with a duty of one anna or half an anna only, they were admissible in evidence on payment of duty and penalty. There is no controversy that the instruments do not fall within any of the classes of documents chargeable with a duty of one anna or half an anna only. The question remains, whether they are bills of exchange or promissory notes; the answer must depend on the terms of the documents. The following is a literal translation of one of them: Hundi. Stamp -/4/- 1 1/2 Sri Ganeshji helps.

(2.) 1 1/2 to Bhai Kesri Chand Sugan Chand of the good and prosperous place Calcutta--by Kesri Chand Sugan Chand of the port of Calcutta whose compliments please accept. Further (we draw) hundi here for Us. 400 in words four hundred rupees full double of two hundred rupees, the half thereof, in favour of Bhai Buldeo Dass Asaramji. Please pay after 511 five hundred and eleven days from Miti Sawan I Sudi 5 Thursday, value in Company s coin to the respectable holder. Miti Sawan I Sudi 5 Sambat 1966 Thursday. (Sig.) Kesri Chand Sepani. Witness--Mathura Dass Kathari. (On back). 400/- (Torn) Due 15th December 1910. 74 1/2 to Kesri Chand Sugan Chand.

(3.) The term bill of exchange, as defined in Clause (2) of Section 2 of the Indian Stamp Act, means a bill of exchange, as defined by the Negotiable Instruments Act, 1881, and includes also a hundi and any other document entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of, or to draw upon any person for, any sum of money. The expression "bill of exchange" is defined in the Negotiable Instruments Act to mean an instrument in writing, containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. The instrument set out above does not fall within this definition of a bill of exchange, for a two-fold reason, first, because it does not contain an unconditional order for payment and, secondly, because a bill of exchange contemplates two persons a drawer and a drawee. Nor does the instrument fall within the wider definition given in Section (2), Clause (2) of the Indian Stamp Act, because it is not a document which entitles the person named therein to payment by any other person of, or to draw upon any person for, any sum of money. It is also clear that the instrument is not a promissory note as defined in Clause (22) of Section 2 of the Indian Stamp Act read with Sections 4 and 5 of the Negotiable Instruments Act. A promissory note is defined there to be an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. The document contains a qualified promise to pay, which takes it out of the definition Fisher v. Calvert (1879) 27 W.R. 301; Mortgage Insurance Corporation Ltd. v. Inland Revenue Commissioners (1888) 21 Q.B.D. 352 : 57 L.J.Q. B 630 : 36 W.R. 833. There is no unconditional undertaking to pay in this case, nor is the instrument payable to the bearer, because a shahjog hundi, which is the name given to the instrument before us, is only payable to the respectable holder and is not equivalent to a hundi payable to the bearer Davlatram Shriram v. Bulakidas Khemchand 6 B.H.C.R. 21; Ganesdas Ramnarayan v. Lachminarayan 18 B. 570; Thakur Das v. Futteh Mull 7 13. L.R. 275 : 16 W.R. 3; Bhuputram v. Hari Prio Coach 5 C.W.N. 313 and Lalla Mail v. Kesho Das 20 A. 493 : A.W.N. (1904) 100 : 1 A.L.J. 254. The document is, in our opinion, a bond, although it is called a hundi Venku v. Sitram 29 B. 82 : 6 Bom. L.R. 841. This is plain from Section 2, Clause (5)(b) of the Indian Stamp Act, where a bond is defined as an instrument, attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another. The view we take of the nature of this instrument is identical with that adopted by Fletcher, J., in the case of Jullan Chand v. Asaram, Assaram v. Kesri Chand 33 Ind. Cas. 247 : 22 C.L.J. 22.