The contents of an insufficiently stamped instrument can be relied upon as a distinct acknowledgment of liability, even if the instrument itself is excluded from evidence due to insufficient stamp duty.

Pandalai, J.

1. In this case the learned Additional Subordinate Judge dismissed a suit upon a promissory note as being barred by limitation, and the only question in this petition is whether that decision was right. The suit as originally framed was on a promissory note for Rs. 540 dated 11th May 1926. This was admittedly insufficiently stamped and, therefore, inadmissible as a promissory note. When this was discovered the plaintiff asked for leave and was granted leave to amend his plaint, as one on a previous promissory note of which the one dated. 11th May 1926 was a renewal. The suit thus became one on a promissory note dated 22nd May 1923 which was properly stamped. On the date of the suit the note of 22nd May 1923 would be barred if it were not saved by some intervening acknowledgment and the plaintiff purported to use the contents of the promissory note dated 11th May 1926 as an acknowledgment to save limitation. The learned Subordinate Judge held that it could not be so used and hence dismissed the suit. The note which is in the Tamil language when translated is in the following terms:

The sum due to you on looking into accounts of a promissory note given for money borrowed from you is Rs. 40. On demand I promise to pay you, or to your order, this sum of Rs. 540 with interest at 12 par cent and get back this promissory note.

2. The learned Subordinate Judge has held that by virtue of Section 85, Stamp Act, this was an instrument chargeable with duty and not being so stamped should not be admitted in evidence for any purpose by any person having authority to receive evidence or be acted upon by any such person. For this opinion he relied upon a decision of Jackson, J., in C.R.P. 835 of 1925 which is later than another decision of Wallace, J. reported in Gopala Padayachi v. Rajagopala Naidu A.I.R. 1926 Mad. 1148 to the contrary effect. He also relied upon two cases Thaji Beebi v. Tirumalaiyappa Pillai [1907] 30 Mad. 386 and Chenbasappa v. Lakshman Ramachandra [1894] 18 Bom. 369. I may at once say that these two latter cases have no bearing upon the question here. The decision of Jackson, J., is very brief and simply says that having regard to Section 30, Stamp Act, of 1899, the Subordinate Judge was right in not admitting the unstamped promissory note in evidence for any purpose. The decision of Wallace, J,, in Gopala Padayachi v. Rajagopala Naidu A.I.R. 1926 Mad. 1148, though favourable to the petitioner does not mention Section 35, Stampt Act, and was given in a case in which the learned Judge had himself previously held that the question of admissibility of the instrument could not be raised. There is a decision of five learned Judges of the Allahabad High Court in Kanhaya Lal v. Stowell [1881] 3 All. 581 (F.B.) under the Stamp Act of 1869. In that case an instrument in the following terms was held to be inadmissible as a promissory note for want of proper stamp Due to Kanhaya Lal, Cloth Merchant, the sum of Rs. 203 only, to be paid next January, 1878.

3. This was a promissory note under the Stamp Act though not one under the Negotiable Instruments Act; but the learned Judges held that though the promissory note was inadmissible as a promissory note it was still admissible as an acknowledgment of liability. It has been pointed out that in the Later Stamp Act of 1899 the words "for any purpose" have been introduced into Section 35 which were not found in the corresponding Section 18 of the Act of 1869. It seems to me that the decision of this question really depends upon the terms of the present Section 35; and, as far as I am able to see, it does not present much difficulty. What this section, in my opinion, says is this: no instrument chargeable with duty shall be admitted in evidence for any purpose or be acted upon by any Court. I have set out the note in the present case. It contains a great deal more than a promissory note. A promissory note, as is well known, need only say that the promisor promises to pay t