The inadmissibility of unstamped promissory notes as evidence and the possibility of pursuing action on the antecedent debt.

Madhavan Nair, J.

1. The plaintiff-appellants suit out of which this second appeal arises, was for the recovery of Rs. 1,600 the value of two gold jewels given to the defendant and also for the recovery of Rs. 300 the value of 20 sovereigns together with interest on these amounts. The first item was covered by an unstamped promissory-note and the promissory-note said to have been executed in support of the second item has been lost. The plaintiff also set up two agreements prior in date to these promissory-notes under which the defendant agreed independently to pay the plaintiff these amounts. These agreements have been found against the plaintiff by the lower Appellate Court.

2. As regards the claim which was then put forward by the plaintiff, based upon the original cause of action, apart from the promissory notes, the learned Subordinate Judge, following a decision of this Court in Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58 dismissed the claim. Mr. Somasundaram who appears for the appellant admits that the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58 would govern this case, but he presses me to say that in view of two subsequent decisions of this Court and also of other Courts the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58 requires re-consideration and on that ground he asks me to refer this case to a Bench. I do not think that the subsequent decisions of this Court referred to, namely, Shanmuganatha Chetliar v. Srinivasa Aiyar 35 Ind. Cas. 219 : 40 M. 727 : (1916) 2 M.W.N. 14 : 31 M.L.J. 138 : 4 L.W. 27 : 20 M.L.T. 172 and Chokkalingam Chetty v. Annamalai Chetty 34 Ind. Cas. 417 can be said to have shaken the authority of the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58. In Shanmuganatha Chettiar v. Srinivasa Aiyar 35 Ind. Cas. 219 : 40 M. 727 : (1916) 2 M.W.N. 14 : 31 M.L.J. 138 : 4 L.W. 27 : 20 M.L.T. 172 Abdur, Rahim, J., refers to Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58 and; distinguishes it in these terms. "The promissory-note on which action was brought in that case, was inadmissible in evidence as it was an unstamped note. The view taken by the learned Judges was that as the suit was based on the note and that was inadmissible in evidence, the suit must fail. In that case, there was no question of the liability of the partners on account of the debt evidenced by the" promissory-note" At page 730 Page of 40 M.-[Ed.] there is this observation made by the learned Judge, namely: "There is no doubt so far as it appears from the authorities referred 13 at the Bar that where there exists an antecedent debt and a promissory-note is executed for such debt, a suit on the promissory-note failing, an action on the debt would lie." In view of the fact that the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58 has not distinctly been dissented from by the learned Judge, the antecedent debt that is, referred to in the second extract from his Lordships judgment can only mean debt anterior in time, with reference to the promissory-note debt. The two prior agreements pleaded have been found against the appellant by the lower Court. The decision in Chokkalingam Chetty v. Annamalai Chetty 34 Ind. Cas. 417 also cannot be said to have shaken the authority ,of the decision in Muthu Sastrigal v. Visvdhaiha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : 26 M.L.J. 19 : (1914) M.W.N. 58.

3. As regards the question at issue, different High Courts have taken different positions and seeing that o