MOHINI KAPUR, J.—In Bahi of the plaintiff respondent, there is an entry in the following words:—

^^(kkrksA lk- Jh fkojkt th ekyik.kh nsoth Nko.kh okyk o lk- Jh nqxkZyky th eqjD;k okyk dks fefr dkrh lqn 2035 dksA

40)000@& jksdM+h nhuk :i;k pkyhl gtkj th.k dks C;kt izfr 1@& lSdM+k ekfld) ls tksM+dj tc Hkh vki ysuk pkgsaxs tek djk nsaxsA

g- fkojkt g- nqxkZyky

This is signed by the defendant-appellant but does not bear any stamp. An objection was raised before the learned District Judge, Tonk, where the suit on the basis of this Khata was pending, that the document which is a pronote, being unstamped, is not admissible in evidence.

2. Learned District Judge considered the intention of the parties and after referring to certain decisions held that the intention of the parties was to execute a Khata in the Bahi of the plaintiff and it was not a pronote, so as to say that it is inadmissible in evidence on account of being unstamped. This decision has been challenged in this appeal by the defendant-appellant. The promissory note has been defined under Section 4 of the Negotiable Instruments Act, 1881, is as under:-

"S.4. A "Promissory note" is an instrument in writing (Not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

ILLUSTRATIONS

A Signs instruments in the following terms:-

(a) "I promise to pay B or order Rs. 500"

(b) "I acknowledge myself to be indebted to B in Rs. 1,000/- to be paid on demand, for value received."

(c) "Mr. B, I O U Rs. 1, 000."

(d) "I promise to pay B Rs. 500 and all other sums which shall be due to him."

(e) "I promise to pay B Rs. 500, first deducting thereout any money which he may owe me."

(f) " I promise to pay B Rs. 500 seven days after my marriage with C."

(g) " I promise to pay B Rs. 500 on Ds death, provided D leaves me enough to pay that sums."

(h) " I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next."

3. The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes. Learned counsel for the appellant has contended that the document in question contains all the necessary requisites for making it a promissory note as it is an unconditional undertaking to pay a certain sum of money and it has been signed by the maker. As far as the person to whom it is payable, it is stated that the document has been executed in the Bahi of the plaintiff-respondent and as such the person to whom the amount is payable, is a certain person, therefore, it should be taken to be a pronote which being unstamped is inadmissible in evidence. It is contended that when the document is in the Bahi of a particular person, then it is payable to the person to whom the Bahi belongs and it cannot be said that the document is not in favour of a certain person.

4. Reliance has been placed on Jagjivandas Bhikhabhai Vs. Gumanbhai Narottamdas (1), wherein it was held that an instrument cannot be said to be a promissory note, merely on account of belief of the parties that what they executed is a promissory note but it is to satisfy the conditions of the definition of promissory note under S. 4 of the Negotiable Instruments Act. In this case a Khata was executed in a Bahi. The name of the payee was not expressly mentioned in the body of the Khata but there was a clause to the effect that "we promise to pay whenever you demand". The name of the payee was specified with certainty on the head of Khata. As it was addressed to the plaintiff by making reference to the head of Khata, therefore, it was held that Khata was an unconditional undertaking to pay a certain sum to a specified payee and when it was signed by the defendant it became a pronote.

5. Relying on this decision, learned counsel for the appellant has contended that the document in the present case contains a

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