- (1.) THIS is an appeal by the plaintiff against the order of the Senior Civil Judge, Jodhpur, dated the 31st of October, 1952, remanding the case to the trial court under Order XLI Rule 23 of the Civil Procedure Code.
(2.) THE facts giving rise to it are that the plaintiff brought a money suit for recovery of Rs. 700/-principal and Rs. 157/8 interest, in all Rs. 857/8, on the basis of an entry in his khata bahi dated Sawan Sud. 1 Svt. 2003. THE suit was originally filed against Shivraj and Kripashankar. Shivraj has died since then and his legal representatives have been brought on the record. It was averred by the plaintiff that Shivraj and Kripashankar had both jointly obtained a loan of Rs. 700/-from him, that they had orally agreed to pay interest at the rate of 6% per annum, that Rs. 56/-were received for interest thereafter and Rs. 857/- including interest remained outstanding to the date of the suit It was also stated that the entry in the plaintiff's khata bahi was signed by both the defendants. THE plaintiff prayed for a decree of the entire amount together with interest pendente lite and future interest. THE defendants traversed the claim and pleaded that the document on which the suit was founded was a mere acknowledgment and that it was inadmissible in evidence under sec. 35 of the Indian Stamp Act since it did not bear a proper stamp according to Scheduale 1, Art 1 of the said Act. THE trial court framed the following three issues - (1) Whether the khata sued upon is admissible in evidence even though unstamped. (2) Whether the defendants executed the document sued upon after obtaining a loan of Rs. 700/ -. (3) Whether the defendants agreed to pay interest at 3% per annum on the said amount. The trial court decided o n ly the first issue and dismissed the suit holding that the document sued upon was inadmissible in evidence being unstamped. The plaintiff went up in appeal to the Senior Civil Judge, Jodhpur. He also approved the view of the trial court about the inadmissibility of the document but remanded the case for decision of other issues. It is against this order that the present appeal has been filed. A preliminary question was raised by the respondents that this was not an appealable order. That question has however been decided by a Division Bench of this Court on 22nd of July, 1955. Thus the only point for determination by this Court now is whether the document on which the suit is based is admissible in evidence. In order to appreciate the argument, it would be proper to reproduce the entry which runs as below - "khato 1 Sonar Shivraj vo Kirpa Shankar beta Leriramji thi : Khas-ka-Pir Darga Svt. 2003 ra Sawan Sud 1. Rs. 56/-Smt. 2003 ra Sawan Sud 1 su Svt. 2004 ra Kati Sud 1 tak ra mas 16 ra vyaj ra Rs. 56/- rokra dina. Signed : Shivraj. Rs. 700/- Svt. 2003 ra Miti Sawan Sud 1 ne Rs. 700/- Akhre rupaya sat sau mare dhandhe sarun leena. Sd/- Shivraj Sd/- Kirpashankar. As mentioned above, both the courts below have held that the entry of Rs. 700/- on the debt side is an acknowledgment of a debt and, therefore, comes within the purview of Schedule 1, Art. 1 of the Stamp Act. It is common ground between the parties that at the time of the execution of this document, the law in force was the Marwar Stamp Act, 1954, according to which the duty chargeable on acknowledgment was one anna. It may also be observed here that in the said Act there was no section corresponding to sec. 35 of the Indian Stamp Act which makes those documents inadmissible in evidence which are chargeable with a duty of one anna. Sec. 9 of that Act enjoined upon every person having by law, or consent of parties authority to receive evidence,and every person in charge of a public office, except an officer of Police, before whom any instrument, chargeable with duty was produced,that he should impound the same. He was further required to examine the instrument and realise the proper stamp duty or deficit thereof together with the required penalty, and endorse that fact on the instrument. It was further provided that if such an endorsement is made the document would then be admissible in evidence. Sec. 11 of the said Act provided that the penalty in the case of unstamped instruments produced in evidence or for registration would be eight times the amount of proper stamp duty and in case of insufficiently stamped instruments, five times the amount of deficient stamp duty. Thus, it is agreed by learned advocates for both the parties that even if this document were held to be an acknowledgment chargeable with a duty of one anna it could be admitted in evidence on payment of penalty till the 30th of December, 1947 by which time, the said Act of 1914 remained in force. This Act was replaced by Marwar Stamp Act (Act No. XV of 1947) which was brought into force from 1st of January, 1948. It is agreed between the parties that although it was the Act of 1914 which was in force on29th of July 1946 which is the date of the khata, it was the Act No. XV of 1947 which was in force on 5th of July, 1951 when the suit was filed. It would be proper here to also mention that the Rajasthan Stamp Law (Adaptation) Act, 1952 (Act No. VII of 1952) which Received the assent of the President on the 16th of February, 1952 came into force in Rajasthan on 15th of May, 1952 and it replaced the Marwar Stamp Act (No. XV of 1947 ). In the First Schedule, Article 1 of the last Act (No. VII of 1952) the stamp duty chargeable on acknowledgment was two annas. So the law in force on the date on which the judgment was given by the trial court i. e. 22nd of August, 1952, it was Act No. VII of 1952 which was in force. Even to day this Act continues to be in force. Learned counsel for the appellant has urged that in the first instance, the document sued upon is not an Acknowledgment, but it is either a memorandum of a transaction or a receipt of the money by the respondent and, therefore, if it be held to be the former, it was not chargeable with any stamp duty and if it be held to be a receipt, it was chargeable with a duty of one anna, and could be admissible in evidence on payment of penalty both under the Marwar Stamp Act, 1947, or sec. 35 of the Rajasthan Stamp Law (Adaptation) Act, 1952. It is further urged that even if it be held to be an acknowledgment, it should not have been declared inadmissible because it was not inadmissible according to the Marwar Stamp Act, 1941, till the 30th of December, 1947, and it again became admissible afterwards from 15th of May, 1952, before the trial court decided the present suit. Learned counsel for the respondents has, on the other hand, urged that the said document cannot come within the purview of the term 'receipt because it was not given in repayment of a loan by the creditor. It is contended by him that it was a mere acknowledgment of a debt and was written in order to supply evidence of such debt. It, therefore, came within the purview of Schedule 1, Art. 1 and sec. 35 of the Marwar Stamp Act (No. XV of 1947) and since it was inadmissible at the time of the institution of the suit, it was rightly thrown out by the courts below. The points for determination, therefore, are (l) whether the said document is an acknowledgment or a receipt or a mere memorandum and (2) if it is an acknowledgment, whether it was admissible on the date of the suit or the date of the judgment of the trial court. Coming to the first question, it appears that the trial court has not given any convincing reason why it has held the document to be an acknowledgment. The first appellate court has certainly discussed this point and remarked that the words "mare Dhandha Sarun Leena" shows that the amount in question was taken as a debt and the liability was acknowledged. The learned judge further says that "had the words "mare Dhandha Sarun Leena" not appeared in the Khata, it would surely have been a memorandum or a receipt. " He has then proceeded to distinguish the rulings cited by the appellant's learned advocate. It may be remarked that the trial court and the learned Civil Judge do not seem to have realised the difference between the Hindi words "lena, Dena or Leena. " It is true that the terms"baki Dena, Baki Lena" have been held to be mere acknowledgments in several cases. But just as there is a difference between an "acknowledgment" and a "receipt" and a promise to pay" in English language, so also, there is a distinction between the Hindi words also and if it is not properly appreciated, a gave injustice is likely to occur. To my mind, there is a great difference between the Hindi local terms"lena"and"leena"generally, whenever an acknowledgment is made, then if it is written by the debtor, he writes "baki Dena. " If it is written by a creditor and got signed by the debtor, then it is generally written "hamara Lena. " In both these cases, it is only an ''acknowledgment" because the debtor simply acknowledges his liability. The word "leena" however means "took or received. " So the document rendered in English would read thus - "rs. 700/- On Svt. 2003 Miti Sawan Sud 1, Rs, 700/- in words seven hundred taken for received for my personal business. Signed Shivraj, Signed Kirpashankar. " Learned counsel for the respondent says that "leena" means "borrowed", and therefore the document is an acknowledgment of debt. I do not agree with him that the single word 'leena' would connote the sense of borrowing. If it were written "udhar Leena" then it could be certainly translated as 'borrowed', otherwise the only word "leena" would mean "took" or "received. " Learned counsel's interpretation of the term can be born out only if we read it in the context of the averment made in the plaint. But that raises the question whether a particular document should be looked at, for purposes of stamp, in its nakedness or it should be seem in the light of the transaction to which it refers. In the case of Nanak Chand vs. Fattu (1) it was observed that "whether a particular acknowledgment falls within Art, 1, or is excepted from its operation by the proviso, will depend on the wording of document concerned. It may be stated however that in considering whether a document is governed by the Article or the proviso, it is important to bear in mind the well-settled (but often forgotten) principle, that it is the document as it stands, and not the bargain to which it refers, which has been made chargeable to stamp duty" It is true that the facts of the above case were lightly different. In that case, certain ornaments were purchased on credit and after entering their cash value, the entry was got thumb marked by the purchaser. It was held to be a memorandum and not an acknowledgment of debt. So far as the facts are concerned,that case is certainly distinguishable from the present case, but the correctness of the principle that it is the document and not the bargain which is chargeable to stamp duty is not challenged by respondents' learned counsel. Let us therefore look at the document first as it stands. If the word 'leena' be taken to be an equivalent of 'took' or 'received' then the entry of Rs. 700/- "would only amount to receipt because the entry merely said that Rs 700/- were received for personal business. " Learned Civil Judge has written in his judgment that if the words 'for personal business' were not there the document would have been a receipt and that the addition of these words take it away from the purview of that term. I am unable to follow this reasoning. To my mind the words "for personal business" only denote the purpose for which the money was received and they do not import the sense of acknowledgment. Let it next be admitted hypothetically that 'leena' means 'borrowed' as interpreted by respondents' learned counsel. Even then, in my opinion the document cannot be taken to be an acknowledgment of debt. Acknowledgment is not defined in the Stamp Act but it connotes the sense of admission. An acknowledgment is included even in the definition of the term 'receipt' as given in the Stamp Act. Receipt as defined in Sec. 2 (23) of the said Act 'includes any note memorandum or writing - (a) whereby any money, is acknowledged to have been received. " The acknowledgment is a very wide term and it is not every kind of acknowledgment which requires to be stamped. For instance acknowledgment of some liability or acknowledgment of the correctness of some account is not liable to a stamp duty It is only an acknowledgment of a debt exceeding Rs. 20/- written or signed by or on behalf of the debtor in order to supply evidence of such debt which is required to be stamped under Schedule I, Art. I, of the Stamp Act. The question which therefore arises is whether the said document would be covered by this Article simply because the word 'borrowed' would appear there To my mind an acknowledgment of a debt which is written in order to supply evidence of debt contemplates the pre-existence of a debt. There should first be a debt in existence and then only there can be an acknowledgment thereof. It does not matter what the duration of time between the debt and its acknowledgment is, but the words must denote that it is an acknowledgment of a pre-existing debt. This view finds support from the case of Kasturchand Jiwaji vs. Manek Chand Devchand (2 ). The facts of that case were different but it was remarked at page 449 that "an acknowledgment necessarily imports the acknowledgment necessarily imports the acknowledgment of an existing debt. " If a person simply writes that he borrows so much amount just when he incurs a loan then it would be a memorandum of transaction of loan but not an acknowledgment of a pre existing debt for supplying its evidence. In the case of Udit Upadhya vs. Bhawani Din (3), three persons had borrowed money from a fourth, and at the time a memorandum signed by the borrowers was drawn up in the following terms" "account (lekha) of Bhawani Din Kalwar, Katwari Kalwar and Bindesri Kalwar, 8th February, 1901, interest I per cent per mensem, payable 3rd May. 1901. Rs. 500/- borrowed from Udit Upadhya for a sugar factory. " It was observed that "the document, as we understand it, is not a promissory note, it is not a bond, and it is not an acknowledgment of a debt containing a promise to repay the debt or a stipulation to pay interest. To us it clearly appears to be nothing more than a mere memorandum, or note drawn up between the parties as to a transaction which had just been settled between them. " It may be pointed out here that in the said memorandum even the word 'borrowed' as translated by learned counsel for the respondents appeared and still it was held to be a mere memorandum and not an acknowledgment of a debt.
(3.) LEARNED counsel for the respondents has relied upon the case of Bindesari Prasad vs. Ram Tapesha Singh (4 ). In that case, the defendant had borrowed Rs. 300/- from the plaintiff's father. It was said by the plaintiff that the loan was repaid on 21st of July, 1929, and Rs. 250/- were lent on the following day and the following note was made on the same document "signed by Ram Tanesha Singh Rs 253/- cash have been taken. Besides this nothing else is due from me. " It was held that it was an acknowledgment of a debt. In the first place, it may be mentioned that in the above case the matter had gone to the High Court in revision from a judgment of the Small Cause Court before a learned Single Judge. The Judge, Small Cause Court had interpreted these words to mean 'that there was an implied acknowledgment on the part of the defendant that the sum then taken viz: Rs. 550/- did remain due from the defendant. " The learned Judge in the High Court also agreed with the same inference and added that "the circumstances that the words were written on an old formal document and signed by the debtor and left in the possession of the creditor justify the further inference that the document was intended to supply evidence of the debt " It may be pointed out that in the above case, when it was urged by the plaintiff's learned counsel that there was an oral transaction and the document was only a receipt of the money, the learned Judge remarked that this could be allowed to be proved if the plaintiff had made his case clear in the trial court. But he did not consider it proper to interfere as it was a revision application in a small cause case. The present case is not a small cause case and in fact, the argument of the plaintiff's learned counsel is that there was an oral talk between the parties regarding the loan. It is stated in the plaint that there was even on oral contract about the interest when the money was advanced. According to the appellant's learned counsel the document sued upon was taken as a receipt of the money which was advanced to the defendants. The above case is therefore not helpful. Learned counsel for the respondents has next urged that a receipt can be given only by a creditor to a debtor in repayment of the loan and that the acknowledgment of the receipt of money from the debtor to the creditor would not come within the meaning of the term "receipt' as defined in sec 2 (23) of the Stamp Act. In support of his argument, he has referred to Emperor vs. Mahipal Singh (5 ). In that case it was observed "that the provisions of the Stamp Act, requiring receipts being stamped are intended to apply only to documents executed by the payee in favour of the payer. " It may be pointed out that it was a case of memorandum signed by a party, to the court, certifying receipt of a particular sum from one of the parties and for that reason, it was held that it was not a receipt liable to stamp duty. It is obvious that what the learned Judges means to say was that the intention of the legislature was to make the definition of sec. 2 (23) applicable to instrument given by the payee in favour of the payer and not to acknowledgment of payment made to a third person. In the present case, it is not an acknowledgment of receipt of money in favour of a third person. This receipt of money was passed by the defendants in favour of the appellant after obtaining the money from the latter. If a creditor gets a bond from the debtor on the understanding that he would pay rest of the money on the next day he obtains a receipt, can it be said that it would not be a receipt because it was given by the debtor to the creditor. I do not think this was what the learned Judges meant to say in the said case. So, if the said document is looked upon from a broader point of view in the light of the transaction then it may be called a memorandum of a transaction of loan between the parties as was held in the case of Udir Upadhya vs. Bhawanidin (3), and if the entry in the Bahi is read without any background; then it would be nothing more than receipt of money. If there were a stipulation for payment of interest as it was in the case of Udir Upadhya vs. Bhawani Din (3), then this document could be said to be an agreement as was held in In re Sukhdeo Parshad (6 ). But since it contains no such thing and learned counsel for both the parties want it to be read as it stands, it can only be called a receipt of money. It would therefore be admissible in evidence on payment of the penalty of one rupee. As regards the second contention, it does not arise when the said document is held to be admissible on payment of penalty. The appeal is, therefore, allowed. The order of the Civil Judge and the trial court is set aside to the extent they have held the document sued upon as inadmissible. The case is sent back to the trial court with direction that it should admit this document in evidence on payment of the penalty of one rupee. The trial court will decided the remaining issues. The costs in the appeal will abide the result in the trial court. . ;