BHARGAVA, J.—This appeal arises out of a suit for recovery of the amount due under an instrument which was hold to be inadmissible in evidence by the learned Munsif, Gangapur holding that it was a promissory-note and was insufficiently stamped. The document in question was executed on 5th December, 1951 and according to the law then in force it required a stamp of-/5/- whereas it bore a stamp of-4/-only,

2. The learned Munsif having found that the document, which was the basis of the suit, was inadmissible in evidence dismissed the plaintiffs suit.

3. The plaintiffs preferred an appeal against the judgment and decree of the learned Munsif to the court of the Civil Judge, Gangapur The learned Civil Judge, Gangapur held that the provisions of section 35 of the Stamp Act related to procedural law and therefore, the admissibility of the document should be determined according to the Stamp Law which is in force on the date the document is sought to be tendered in evidence and not according to the law in force at the time of its execution. As the admissibility of the document came in for consideration on 2nd November 1957, and on that date the stamp duty required was -/4/-he held that it was properly stamped and was admissible in evidence. He, therefore, allowed the plaintiffs appeal and sent the case back for decision on merits. The defendants have now come to this Court against the above order of the learned Civil Judge.

4. At first this appeal came for hearing before a learned Single Judge of this Court and it was contended before him on behalf of the respondents that the finding of the first appellate court amounts to admitting the document in evidence, and therefore, the question of its admissibility was not open to question in this appeal by virtue of the provisions of sec, 36 of the Stamp Act. In support of this contention reliance was placed upon Ratan Lal Vs. Dau Das and another, (1). As the learned Judge was inclined to think that there should be difference between the finding that the document is admissible and an order that the document be or is admitted in evidence, he referred this appeal for hearing by a Division Bench as the case relied upon by the respondents was a bench decision. When the matter came up before the Division Bench it was pointed out that the decisions of this Court on the question whether the order of the court holding that the document is admissible in evidence amouts to admitting the document in evidence within the meaning of the provisions of sec. 36 of the Stamp Act are conflicting. A contrary view was taken in Gordhan Singh Vs. Suwa Lal and another, (2) where the learned Judges held that:—

"A document can only be said to be admitted in evidence when it is formally proved and tendered in evidence."

It is of course unfortunate that the previous decision of this Court in Ratanlal Vs. Dau Das and another, (1) and some other cases on the point were not brought to the notice of the learned Judges who decided Gordhan Singhs case. (2). In order to resolve this conflict this appeal was referred to a larger Bench.

5. I may observe at the very outset that the view taken by the learned Civil Judge is not correct. The proper amount of duty required for an instrument is to be determined according to the law in force at the time of the execution of the instrument and not when it is tendered in evidence. The learned Civil Judge was in error in holding that the law in force at the time when the admissibility of the document is called in question will govern the case. Sec. 35 of the Stamp Act provides that:

"No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon or authenticated by any such person or by any public officer, unless such instrument is duly stamped."

The words "chargeable and duly stamped" used in this section have been defined in the Act in sec. 2(6) and 2(11). Chargeable means,

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