- (1.) THIS is a revision application by the plaintiff, Mahesh Chandra, against the judgment and decree of the Judge Small Cause Court, Sambhar, dated the 15th of May, 1953, dismissing the suit of the plaintiff for Rs. 111/-against Bodu.
(2.) THE allegations of the plaintiff, Mahesh Chandra, were that Lakhma, Moti, Nanura and Ladu owed a debt of Rs. 160/- to the plaintiff and the defendant, Bodu, undertook to pay it and no his undertaking Lakhma and others were given a discharge of their debt. THE defendant disowned his liability and denied having undertaken to pay the debt of Lakhma and others in consideration of the discharge given to them by the plaintiff. The learned Judge, Small Cause Court held that the Khata produced by the plaintiff in support of his claim purporting to bear the signatures of the defendant was not admissible into evidence for the reason that it was unstamped, whereas a stamp duty was chargeable on it under Schedule I, Art. 1 of the Stamp Act. The plaintiff could not produce other substantial evidence to prove his claim and his suit was, therefor, dismissed. In this revision it is urged by Mr. Jain on behalf of the plaintiff that the lower court was wrong in refusing to admit the Khata into evidence which bore the signatures of the defendant and which evidenced creating of a debt against him for which this suit was instituted. It was argued that the Khata, in question, could not be regarded as an acknowledgment of a debt in the meaning of Schedule I, Art. I of the Indian Stamp Act, as there was no previously existing debt against the defendant which could be acknowledged by him. The defendant, it was urged, created a debt by means of that very document and on this basis that document should have been regarded as an agreement rather than an acknowledgment and as the plaintiff was prepared to pay a penalty the document should have been admitted into evidence on its payment under sec. 35 of the Stamp Act. The Khata, in question, is in Hindi and its English rendering is as follows - "account of Bhai Bodu Kirodiwal, resident of Harnoda, dated Pos Sudi 15, Svt. 2008, corresponding to 22nd January, 1952. Rs. 5/4/- Wheat 3/- Gur 2/4/- 40/- Ghee 9/- Pos Badi 2, Svt. 2008 one Peela- (cloth) 2/- Bhada Budi 4 Svt. . . . . . 3/- Bhado Budi 9 Barley. 2/- Bhodo Budi 14 Gur 1/- Sugar 1/- 61/4/- Rs. 160/- of the Uttar of Bhedwalas previous account. Sd/- Bodu by his own pen. The above entry in correct. " Schedule I, Art. 1 of the Stamp Act lays down - Description of Instrument Proper Stamp duty. Acknowledgment of a debt exceeding twenty rupees in amount or value, written or signed by. or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's; pass book) or on a separate piece of paper when such book or paper is left in the creditor's possession: provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. One anna It may be noted that in order that a document may be regarded an acknowledgment of a debt in the meaning of Schedule I, Art. 1 of the Stamp Act it is necessary that it should be in respect of an existing debt exceeding twenty rupees in amount or value and it should be written or signed by a debtor in a book or in a piece of paper left in the possession of the creditor and it should not contain a promise to pay the debt or its interest or to deliver any goods or other property. In the present case, the Khata, in question, shows that Bodu undertook to pay a debt of Rs. 160/- of Lakhma, Moti, Nanura, and Ladu and in token thereof he made an entry in his Khata in a book of the plaintiff and put his signatures in evidence of the same. The consideration for the creation of this liability was the discharge given by the plaintiff to Lakhma and others in respect of a debt which was due against them. The entry purporting to bear the signatures of the defendant in the present case created a new debt and as there was no debt which could be acknowledged by the debtor at that time it could not amount to an acknowledgment of a debt. In order that a debt may be acknowledged it is necessary that it must exist at the time it is alleged to be acknowledged. A document by which a new debt is created, therefore cannot be taken to be an acknowledgment of a debt chargeable with stamp duty of one anna under Art. 1, Schedule I, Such a document though in the form of an acknowledgment of a debt cannot be regarded as one falling in the meaning of Schedule I Art. 1 of the Indian Stamp Act. The court below was, therefore, not right in treating this documents as an acknowledgment of a debt and in excluding it from evidence on the ground that a duty of one anna was chargeable thereon. The plaintiff was willing to pay a penalty and to get it admitted in evidence The learned lower court should, therefore, have considered this document on payment of the necessary penalty therein. This revision application is allowed and the judgment and decree of the lower court are set aside and the Judge Small Cause Court, Sambhar, is directed to restore the suit to its original number and to allow the plaintiff to pay a penalty as required by sec. 35 of the Stamp Act in respect of the khata in question and on payment thereof to admit the same into evidence and to proceed further according to law. The costs of this revision shall abide the result of the suit in the lower court. . ;