An instrument attested by a witness and not payable to order or bearer is a bond within the meaning of the Indian Stamp Act, 1899, and Explanation (1) to Section 13(1) of the Negotiable Instruments Act, 1881, cannot be read into the definition of a bond under the Stamp Act.

Choudhary, J.

1. A common question of law is involved in these two cases. They have, therefore, been heard together and are being disposed of by one judgment.

2. Civil Revision NO. 1145 of 1959 arises out of Money Suit No. 151 of 1956 instituted by the petitioners against the, opposite parties of that case for recovery of a sum of Rs. 46,240.00 based on a document alleged to be a handnote, dated the 31st of August, 1953 executed for a sum of Rs. 34,000/-. Civil Revision No. 871 of 1960 arises out of Money Suit No. 152 of 1956 instituted by the petitioners against the opposite parties Of that case for recovery of a sum of Rs. 43,520/-based on a document alleged to be a handnote dated the 31st of August, 1953 executed for a sum of Rs. 32,000/-.

Both these suits were transferred to the Court of the Second Additional Subordinate Judge, Darbhanga, and were numbered as Money Suit no. 151/3 of 1956/58 and Money Suit No. 152/5 of 1956/58 respectively. The hearing of Money Suit no. 151/3 of 1956/58 commenced before Sri S.P. Sinha, Second Additional Subordinate Judge, and that of Money Suit No. 152/5 of 1956/58 before Sri S.R. Shukla, another Second Additional Subordinate Judge, Darbhanga. At the hearing of these cases a point was raised on behalf of the defendants in the two suits that the documents in question were bonds, and not promissory notes, within the meaning of the Indian Stamp Act (hereinafter to be referred to as the Act), and, not being duly stamped as bonds, were inadmissible in evidence. Both the learned Additional Subordinate Judges accepted this contention and held that both these documents were bonds within the meaning of the Act, and passed orders in the two suits for assessment of the deficit stamp duty and penalty payable under the Act. Being thus aggrieved, the plaintiffs of the two suits have presented these civil revision applications.

3. The documents in question bear stamps requisite for promissory notes, and, if they are held to be promissory notes, no question of any deficit stamp duty to be paid on these two documents arises. It is also an undisputed position in the case that, if these documents are bonds within the meaning of the Act, the stamp duties paid are deficit and the orders of the learned Additional Subordinate Judges for assessment of the deficit stamp duty and penalty cannot be questioned. The real contest between the parties, however, is as to the nature of these documents, namely, whether they are bonds, as alleged by the defendants, or promissory notes, as alleged by the plaintiffs, within the meaning of the Act.

4. In order to appreciate the arguments advanced in support of the respective contentions, it may perhaps be necessary to reproduce the terms of the two documents which are couched mostly in similar language. The document which is the subject-matter of Money Suit No. 151/3 of 1956/ 58 is marked as Annexure C to the civil revision application, No. 1145 of 1959, and runs as follows:

"Nakalsahi Radha Mohan Singh, pesar Rai Bahadur Sunder Singh, moblig 34000.00 Choutis hazar rupia karj sudi ek rupia saikra mahbari ke lia aur indul talab chithi likha Ba. Khas tarikh 31-6-53 so sahi Ba, Khas. Nakal Radha Mohan Singh 31-8-53. Witness: Nageshwar Misir, pleader, 31-8-53.

Swasti Shri Ram Narain Rhagat wo Shri Ramchandra Bhagat woldan Baijnath Rhagat motafa jat Nagbansi Tamoli pesha Kastkari wo zamindaro wo mahajani sakin Mahalla Chowk Pergana Haveli Darbhanga ke likhtam Shree Radha Mohan Singh peshar Rai Saheb Sundar Singh haiyul kayajn jat Rajput pesha kastkari sakin mauza Muktapur pergana Kasma, elake thana wo sub-division Samastipur, zila Darbhanga ka yatho uchit age apse moblik 34000.00 (chauntis hazar) rupia karj sudi bahisab moblik ek rupia fee saikra mahbari ke waste abadi kastkari wo kharach khanedari banazar parbaras ijmal khandan ke lia, wo wada karte hain wo likh dete hain ke ap jis wakht talab karenge us bakht asal main sud nakad ekmust adai karke handnote heja wapas kar len