BERI, J.—Against the judgment and decree of the District Judge, Ganganagar, dated the 22nd August, 1958, who had affirmed the judgment and decree of the Civil Judge, Ganganagar, dismissing the suit for recovery of Rs. 4,300/-, a second appeal by the plaintiff was preferred to this Court and it came for hearing before Bhargava J., in whose opinion the appeal involved certain questions of law on which there is a divergence of judicial opinion and therefore the same has been referred to this Division Bench for decision.

2. The facts relevant for the decision of this second appeal may be briefly recalled. On 17th February, 1950, the plaintiff alleges, Ganpat, the father of the respondents, before us, borrowed a sum of Rs. 2,600/- and executed a Khata in the plaintiffs book of account bearing interest at the rate of Rs. 1 /9/- per cent per month. Ganpat again borrowed a sum of Rs. 100/- on 10th April, 1951. The plaintiff admits that certain payments were made toward the cash transactions and on 12th September, 1951, Ganpat after going through the accounts acknowledged his liability in the sum of Rs. 3,360/r, and in token thereof affixed his thumb mark in the plaintiffs book of account. After the death of Ganpat, it is alleged in the plaint para four that Hetram respondent paid a sum of Rs. 300/-. The document (Ex. 2.) however, says that the payment was made by Ganpat himself and this appears to be the correct position. Later on 18th July, 1952, Hetiam as Karta of his joint Hindu family, after examining the previous accounts, acknowledged his liability in the sum of Rs. 2,749/- and executed a Khata in favour of the plaintiff, and further agreed to pay interest at the rate of Rs. 1/9/- per cent per month. The defendants paid nothing thereafter and the plaintiff was compelled to institute a suit on 14th July, 1955, for the recovery of the sum of Rs. 4,300/- including principal and interest. The suit was resisted by the defendants. It was denied that Ganpat borrowed any money from the plaintiff. Hetram further averred that he had merely put his thumb mark on the Khata contained in the plaintiffs book of account as a result of undue influence of the plaintiff and that too during his minority. He repudiated any stipulation with regard to the rate of interest and also raised the plea of limitation. The defendants objected to the admissibility of the three Khatas on the ground that they were not stamped in accordance with law.

3. Accompanying the plaint, the copies of three documents, entries from the book of accounts dated 17.2.1950, 12.9.1950 and 18.7.1952, were presented to the Court. The inspection of the originals of these three documents was allowed to the defendants counsel on 3rd September, 1955. It is alleged by the plaintiff that on 24th September, 1955 the book containing these three documents was lost. The plaintiff filed an application on 24th September, 1955 stating the circumstances in which his book of account was lost.

4. When Ramlal (P.W. 1) was being examined on 10th April, 1956, an objection was raised by the defendants in regard to the admissibility of the three copies from the lost book of account on the ground that the original documents were not duly stamped. The trial court determined the duty and penalty payable on these documents on 13th June, 1956 and the plaintiff after paying the duty and penalty proved these copies. When the trial Court reached the stage of judgment it realised that the secondary evidence of documents which were not duly stamped was not admissible in law. Thus, it excluded from consideration the three copies of the Khatas (Exs. 1, 2 and 3) and reached the conclusion that the plaintiff had not succeeded in proving his claim and dismissed the plaintiffs suit. The plaintiff went up in appeal before the learned District Judge, who affirmed the judgment of the trial Court, and the plaintiff has now come up in second appeal to this Court, as already mentioned above.

5. Mr. S. K. Mal Lodha, appearing on

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