Gangeshwar Prasad, J. - (1.) THIS is a Defendant's appeal arising out of a suit for the recovery of Rs. 1762/10/9. It was alleged by the Plaintiff that his father advanced to the Defendant a loan of Rs. 400/ - on 21st December, 1950 and another loan of Rs. 499/12/ - on 10th December 1952. It was said that on 11th June 1953 the Defendant acknowledged in writing that a sum of Rs. 637/8/ - was due from him under the first loan and a sum of Rs. 660/ - under the 2nd. The suit was filed on 2nd June 1956. The defence was a denial of the loan and also of the fact that the acknowledgement relied upon by the Plaintiff was in the writing of the Defendant. It was also pleaded that the acknowledgment was unstamped and was, therefore, inadmissible in evidence. The trial court dismissed the suit with the findings that no loan had been advanced by the Plaintiff's father to the Defendant nor had the Defendant acknowledged that any sum was due from him. The acknowledgment of 11th Jane 1953 was also held by the trial court as inadmissible in evidence. The Plaintiff preferred an appeal against the dismissal of his suit by the trial court and the lower appellate court allowed the appeal, reversed the decision of the trial court and decreed the suit. The lower appellate court found that the two loans alleged by the Plaintiff had really been advanced to the Defendant, that the acknowledgment relied upon by the Plaintiff was in the writing of the Defendant, and that it was admissible in evidence. The Defendant has come in appeal to this Court.
(2.) THE only question raised before me by Mr. K.M. Dayal, learned Counsel for the Defendant -Appellant, is that as the acknowledgment in question was not stamped it was inadmissible in evidence. The point to be considered is whether Section 36 of the Stamp Act now precludes the Appellant from questioning the admissibility of the acknowledgment. An objection to the admissibility of the acknowledgment had been taken by the Defendant in his written statement and when the acknowledgment was sought to be proved by the statement of the Plaintiff the counsel for the Defendant again objected. The trial court reserved its decision on this question and specifically ordered that it would be considered at the time of arguments in the case. Curiously, however, on that very date the acknowledgment was marked as exhibit 4. I entirely agree with Mr. K.M. Dayal, learned Counsel for the Appellant, that objection to the admissibility of the document having been clearly raised a decision of the court on the objection was necessary before the document could be marked as an exhibit. If no objection to that effect hid been taken, the (act that the document was marked as an exhibit would have certainly indicated that the document had been admitted in evidence by the court, but in view of the clear objection to the admissibility of the document raised by the Defendant and the order of the court postponing the consideration of the objection it is not possible to hold that the document was accepted in the mere fact of the document having been marked as an exhibit, and when the trial court came to consider the question of the admissibility of the document it held that it was not admissible on account of not having been stamped. The contention of the learned Counsel that the document was not admitted in evidence by the trial court at any stage must, therefore, be accepted as correct. The question, however, is whether the objection to the admissibility of the document is now barred Under Section 35 of the Stamp Act on account of the fact that the document was held to be admissible and accepted in evidence by the lower appellate court.
(3.) SECTION 36 of the Stamp Act is not limited in its application to those cases only in which an instrument has been admitted in evidence by the trial court. The words used in the section are very wide in their scope and they do not limit its application to cases in which an instrument is accepted in evidence by the trial court. The admission in evidence of an instrument by an appellate court is as much a bar to a subsequent objection to its admissibility as its admission in evidence by the trial court. I may here refer to Ramasami Ghetti v. Ratnasami Ghetti and another [1] (ILR 5 Mad 220) and Brij Raj Saran and Anr. v. Joti Parshad [2] (AIR 1923 Lah 657).;