Acknowledgement not admissible in evidence.

This revision is by the plaintiff against the dismissal of Small Cause Suit No. 140 of 1946 by the Subordinate Judge of Tenali. The suit is for the recovery of Rs. 331-4-0 based on an acknowledgment of liability made by the defendant in his own writing on nth May, 1945. This was done in a note book belonging to the plaintiff and it was left in the possession of the plaintiff. The writing was in Telugu and as there was some dispute with regard to the translation, I had it translated by Court and it reads as follows:

“Three hundred and two rupees and annas eight only being the amount due to this date on looking into the accounts up to this date in respect of miscellaneous khatha (account’s and in respect of the principal and interest relating to previous accounts. (Sd.) Mallavarapu Lurudu Marayya”.

The plaintiff bases his action solely on this acknowledgment as is clear from his averments in paragraphs 1 and 4 of his plaint. The lower Court finds that there is no other evidence of the amount now claimed except the acknowledgment relied on and this finding is not seriously disputed by the plaintiff. The only question is whether this document is admissible in evidence. Under section 35 of the Stamp Act

“no instrument chargeable with duty shall be admitted in evidence for any purpose.......... unless such instrument is duly stamped;”

“Provided that:

(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna only), or a bill of exchange, or promissory note, shall, subject to all such exceptions, be admitted in evidence on payment of the duty with which the same is chargeable.........together with a penalty of file rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, or a sum equal to ten times such duty or portion.”

Article I of schedule 1 is as follows:

“1. Acknowledgment of a debt exceeding twenty rupees in amount or value, written or signed by, on behalf of a debtor in order to supply evidence of such debt in any book (other than a banker’s pass book) or on a separate piece of paper when such book or paper is left in the creditor’s possession; provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property”.

This document will therefore be admissible in evidence only if it falls within the proviso. The classes of documents to which the prohibition in the proviso applies are (1) bill of exchange, (2) promissory note (3) an instrument chargeable with the duty of one anna or half anna only. If this document therefore falls within any one of the above classes, it will not help the plaintiff. That this is not a bill of exchange of a promissory note is clear from the terms of the document and is conceded to be so by both the parties. What is contended for by the plaintiff is that though apparently this falls under Article I to schedule 1, it does amounts a promise to pay the debt and therefore this falls outside the purview of documents prohibited under proviso (a) to section 35; that is to say the privilege granted by the proviso which does not apply to the three classes of documents mentioned above applies to this case. This argument is based on the dicta of the Privy Council in Maniram Seth v. Seth Rupchand 1.Their Lordships in that case were considering the question whether a particular statement amounts to an acknowledgment within the meaning of section 19 of the Limitation Act. The statement which was the subject of construction by the Privy Council was:

“For the last five years he (the respondent) had open and current account with the deceased”.

Their Lordships construed this as a clear admission on the part of the respondent that there were open and current accounts between the parties and they furtherheld:

“The legal consequence would be that at that date either of them had a right as against the other to an account. It follows equally that, wh