(NAWAB MAJOR SIR) MOHAMMAD AKBAR KHAN Vs. ATTAR SINGH

JUDGEMENT

(1.) This is an appeal from a decision of the Court of the Judicial Commissioner, N. W. Frontier Province, allowing an appeal from the Subordinate Judge of Mardan who had made a decree in favour of the plaintiff. By the decree on appeal the plaintiff's suit was dismissed with costs. The suit was commenced by a plaint dated 25 July 1929, based upon a deposit receipt dated 1 April 1917, to recover the principal sum of Rs. 43,900 said to have been deposited with the defendants on deposit account with interest at the agreed rate of 5? per cent per annum. The alleged deposit receipt bore only an affixed stamp of 1 anna, and the Subordinate Judge in framing the issues stated as the first issue the question whether the document fell within the definition of a promissory note and was it therefore not admissible in evidence. Without hearing any evidence as to the circumstances in which the document came into existence he decided this issue as a preliminary point in favour of the defendants, holding that the document was a promissory note, was improperly stamped, and therefore was inadmissible in evidence for any purpose under S. 33, Stamp Act. Their Lordships will discuss this decision later. Leave however was given to the plaintiff to amend; and on 2 January, 1931 the plaintiff presented an amended plaint alleging that on 1 April 1917, it was agreed between the plaintiff and the defendants that the plaintiff should deposit Rs. 43,900 with the defendants for a period of two years with interest at 5? per cent per annum: and that at the expiration of the two years the amount was allowed to remain in deposit with the defendants on the condition that the plaintiff would be at liberty to recover the amount with interest at any time he liked, and that interest would be credited annually in the books of the defendants. The defendants in their respective written statements denied that there was any agreement apart from that recorded in the inadmissible promissory note. They denied any agreement in 1919, they pleaded the Statute of Limitation and finally pleaded that they had repaid the money in 1919. Farther issues were raised as to the liability of some of the defendants as members of the alleged joint Hindu family as members of which they were sued. As to these issues no question now arises before their Lordships. The Subordinate Judge does not appear to have thought it necessary to frame a new issue to meet the allegation in the amended pleadings of the agreement made in 1919. He heard the evidence on both sides and eventually gave judgment for the plaintiff. The plaintiff's evidence was that when his father died in 1914 he had Rs. 25,000 deposited with the defendants which he, the plaintiff, had withdrawn in 1914, and had afterwards re-deposited in 1916 while he was engaged in the war. On his return from the war in 1917 he wished to deposit with the defendants whom he knew to be a very reliable firm of money-lenders a further sum of Rupees 50,000. He sent for the two principal defendants, father and son, and told them he wished to deposit with them the sum named.

(2.) They said they could not take so large a sum and could invest only Rs. 43,900 in a certain business. They asked him not to fix the interest higher than 7 annas, i. e., 5? per cent per annum. (The interest on the Rs. 25,000 had been 6 per cent.) "They said they could not repay me the money within two years: after that they would repay me at any time on demand after receiving due notice." He sent his accountant Abdulla with them to his regular bankers Duni Chand Hari Chand who conducted all his receipts and disbursements. Later Abdulla handed him the receipt in question, which admittedly was prepared by the defendants. The plaintiff then proceeded to give evidence as to the 1919 transaction. He said that he was on duty as a martial law commander near Lahore in April 1919; and that on 21 April or 22nd on hearing of the death of his uncle he came home to Hoti on leave. While there the defendants, the father and possibly the son, came to him. They said that the two years had elapsed. "They asked what should be done about the money. I told them I did not then want to withdraw that money and would like to keep it with them as the times were uncertain. I told them to credit the interest and pay it to me when I wanted it. They agreed to this." Before the trial the defendant Hira Singh had died, a very old man.

(3.) The son Attar Singh said that in 1917 he had taken some land on mortgage from one Hamish Gul. He, Hamish Lal, had acquired the land by pre-emption and Rs. 42,500 had to be deposited as pre-emption money, which was found by the defendant, Attar Singh. He took a loan from the plaintiff for Rs. 43,900 at 51 per cent interest, wrote a promissory note for this and gave it to the plaintiff himself. No mention was made of the money being placed on deposit. He made no agreement with the plaintiff after the expiration of two years to keep the money on deposit. After two years he repaid the money and the interest. His father and he both went to the plaintiff and his father paid the money.