JAWANMAL BALCHAND MARWARI Vs. AKAJI ANAND RAO KUNBI

JUDGEMENT

(1.) ON 31st March 1931 Akaji, defendant 1, and his son Sadasheo, now apparently deceased, executed a bond for Rs. 300 in the plaintiff's favour. On 1st January 1936 an account was made and Rs. 300 was found due, for which amount Akaji and his son Vithalrao, defendant 2, executed a promissory note, stamped with a one anna stamp. On 23rd December 1938 the plaintiff filed the present suit against Akaji and his sons Vithalrao and Dattatraya to recover the money due on the promissory note. As it was inadequately stamped as a promissory note, the plaintiff prayed that it should be treated as an acknowledgment or alternatively, he claimed to base his suit on the oral transaction of the acknowledgment or the original debt. The Small Cause Court held: The pro-note which is insufficiently stamped could not be used in evidence to extend period of limitation under Section 19 or even Section 20, Limitation Act. The limitation of this pro-note is not saved.

(2.) IF the suit could be based on the promissory note, then obviously no question of limitation arises. The plaintiff's contention was that the suit could be based on the promissory note considered as an acknowledgment or that the promissory note could be used to extend the period of limitation on the bond. In my opinion, the promissory note is clearly inadmissible in evidence for any purpose under Section 35, Stamp Act. The promissory note is undoubtedly an "instrument" as defined in Section 2(14) of the Act, as it purports to create a liability and is therefore inadmissible under Section 35 unless it can be saved by proviso (a). It cannot be saved by that proviso because it is a promissory note and the proviso saves instruments other than promissory notes and certain other instruments. I have been referred to the decision in Sudamsa v. Kisanrao AIR 1938 Nag 294 With due respect, that decision seems to me to be wrong and I can see no reason for supposing that the words in Section 35 "admitted in evidence for any purpose" do not mean what they say. This is the view that has, I think, been taken by almost every High Court in India: Mulji Lala v. Lingu Makaji (1897) 21 Bom 201 (FB) which was relied on in Ramchandra v. Muka (1934) 21 AIR Nag 273, Jogendra Chandra Banerji v. Shacheendra Kumar Sheal (1936) 63 Cal 813, Ramanatha v. Narayanaswami AIR 1937 Mad 364, Mt. Bibbo v. Gokaran Singh AIR 1937 All 101 and Tribhuwan Ojha v. Ramchandra (1935) 22 AIR Pat 375.