Bapna, J—This is a second appeal by the plaintiffs in a suit for recovery of money.

2. The appellants Mool Chand and Chha-julal instituted a suit in the court of Judge, Sawai Jaipur, Amber and Dausa, on the 15th of August, 1945, against Rupa and his two sons Lachman and Dhanna, on the allegations that the defendants had money dealings with the plaintiffs for many years, and on second Sawan sudi 15, Svt., 1996 (29th August, 1939), they made up the previous accounts, and admitted a sum of Rs. 1063/- to be due against them, and got a khata executed in the bahi of the plaintiffs by the hand of Ganesh Patwari, and affixed their signatures thereon after putti-ng an anna ticket on the khata, it being agreed that the rate of interest payable was one rupee per mensem. The plaintiff claimed Rs. 1753/-inclusive of principal and interest after giving credit for Rs. 50/- alleged to have been paid on 19th August, 1941.

3. The defendants denied the execution of the khata,. and pleaded that the plaintiffs had obtained certain decrees for the moneys which had been outstanding against them, that these decrees had been satisfied, and nothing remained due against the defendants.

4. By the time the evidence came to be recorded, a theft took place at the house of the plaintiffs, and the bahi containing the document was alleged to be stolen. The trial court recorded evidence of the loss or the original, and by an order dated 11th October, 1946, permitted the plaintiffs to produce secondary evidence of the document. After trial, the trial court decreed the suit.

5. The defendants went in appeal, and the learned District Judge held that although the fact of the dacoity at the house of the plaintiffs had been proved it had not been proved that the particular document had been stolen by the dacoits. He also held that the secondary evidence, even if held admissible, was insufficient to prove that the document, which was Ex. 7, had been executed by the defendants. He accordingly accepted the appeal and dismissed the suit.

6. In this second appeal, a preliminary point was raised by learned counsel for the respondent that the original document, according to the allegations of the plaintiffs, before a stamp of one anna only. The document amounted to an agreement, and was insufficiently stamped as an agreement. The secondary evidence of a document insufficiently stamped and lost was not admissible under the law.

7. Learned counsel for the appellant contended that the document amounted only to an acknowledgment, and as an acknowledgment it was sufficiently stamped. It was further argued that its copy having been admitted by the lower court, no objection could now be taken, as provided by sec. 36 of the Stamp Act. Learned counsel relied for the second proposition on Nellajerla Satyavati vs. Vaijjapu Pallaya(l), Herbert Francles vs. Muhammad Akbar(2) and Maung Po Htoo vs. Ma Ma Gyi(3). It appears to me that these authorities are directly opposed to the observations of their Lordships of the Privy Counsel in the Rajah of Bobbili vs. Inuganti China Sitarasami Guru(4). In fact, the observations of the Rangoon High Court are that the observations in the case of Rajah of Bobbili prohibit the reception of secondary evidence of a document insufficiently stamped and lost. The learned Judges get away from the situation by an observation that "their Lordships of the Privy Council did not intend to go so far as their words suggest." In the Madras case(l) there is only a passing observation that "sec. 36 of the Stamp Act will also apply when secondary evidence of an instrument not duly stamped has been wrongly admitted "and no reasons are given for that observation, which, as stated above, is directly against the Privy Council authority.

8. In the Patna case(2), the document was admitted on the ground that it had been executed out of British India, and the portion which was sought to be acted upon was not chargeable with stamp duty, and a further obiter was made that sec. 36 was a

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