The court emphasized the mandatory provisions of the Stamp Act, particularly Section 36, in determining the admissibility of the unstamped promissory note.

Madhavan Nair, J.

1. This second appeal arises out of a suit instituted by the plaintiff-appellant for the recovery of money due under a promissory-note executed to him by the defendant Though the promissory-note now bears a stamp it has been found by the lower appellate Court that it was not stamped at -the time of its execution. The defendant raised the plea that the promissory-note " is not valid according to law and cannot be admitted," obviously because it was not properly stamped; but there was no issue whether the promissory-note was inadmissible in evidence on the ground that it, has not been duly stamped. The issues that were framed related to the other pleas raised by the defendant. These issues were, whether the discharge pleaded is true, whether the endorsement for Rs. 200 for interest is true, whether the suit is barred by limitation and what relief the plaintiff is entitled to. Overruling the contentions of the defendant on these issues, the District Munsif gave the plaintiff a decree.

2. In appeal, seeing that the contention whether the promissory-note is duly stamped or not would materially affect the decision of the case, the learned Subordinate Judge took a sworn statement from the plaintiff as regards the matter, framed two new issues and called for findings on them from the lower Court The issues were : (1) whether the defendant affixed stamp on Ex. A and wrote the letters " swa " upon it before plaintiff accepted it and paid him the consideration for it and (2) whether the affixing of the stamp after defendant had signed Ex. A would validate it. In his judgment the learned Subordinate Judge states that;

both parties have agreed that a specific issue may be framed and remitted to the lower Court for a finding on the point.

3. The findings on both the issues were in the negative and in favour of the defendant and were accepted by the learned Subordinate Judge. On these findings which showed that the promissory-note Ex. A was not stamped at the time of its execution, he held that it was inadmissible in evidence and relying on the authority of Chunilal v. Mulabai [1910] 12 Bom. L.R. 466 he dismissed the plaintiffs suit. In this Court the appellants main contention is that the first Court having admitted the document in evidence and marked it as an exhibit unconditionally the lower Court had no jurisdiction under the Indian Stamp Act to agitate the question afresh : see Ground No. 2). This argument has reference to Section 36, Stamp Act. It says:

where an instrument has been admitted in evidence, such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stampad.

4. Section 61, Stamp Act, does not touch this case. According to the decisions of this Court : see Venkatarama Iyer v. Chella Pillai A.I.R. 1921 Mad. 413, in which case the document in question was a promissory-note and Nagappa Chetty v. V.A.A.B. Firm A.I.R. 1925 Mad. 1215, the instrument having been admitted and filed as exhibit in the lower Court, the validity of its admission on the ground that it has not been duly stamped, cannot be raised in the appellate Court : see also Jagdip Singh v. Firangi Singh A.I.R. 1928 Pat. 155 where it was held that Section 36, Stamp Act, would apply whether the document was admitted with or without objection. The decision relied on by the learned Subordinate Judge, Chunilal v. Mulabai is clearly distinguishable. In that case the document was admitted and exhibited by the first Court owing to " inadvertance on the part of the Subordinate Judge, " or " an act of some clerk of the Court done in accordance with its practice. What happened in the case as stated in the judgment at p. 469 was this:

When the document was tendered in evidence its admissibility was objected to and accordingly an issue was raised in the Court of first instance to try the question. The Subordinate Judge postponed its decision unt