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IN THE HIGH COURT OF ALLAHABAD
Brij Mohan Lall, Raghubar Dayal and Desai, JJ.
BITTAN BIBI - Appellant
Versus
KUNTU LAL - Respondents
Second Appeal 893 Of 1946
Decided On : 02/08/1952
The court held that an unstamped letter, though admitted in evidence, could not be acted upon as it was not duly stamped. The court also held that the letter did not make Kailash Nath a surety for his mother's loans, as there was no request by him to the plaintiffs to forbear from suing his mother and that it was not open to the plaintiffs to take this plea for the first time in the second appeal.
Fact of the Case:
The plaintiffs filed a suit for recovery of money against Smt. Bittan Bibi, wife of Kedar Nath, legal practitioner, and her daughters Manno Bibi and Seoti Bibi and son, Kailash Nath. The trial Court decreed the suit for a part of the amount claimed and only against the mother (Bittan Bibi ). The respondents filed an appeal from that decree and the mother also filed a cross-objection. The District Judge allowed the appeal, passed a decree for a larger sum and against the mother and Kailash Nath, and dismissed the cross-objection of the mother. The mother and Kailash Nath have filed this second appeal from the decree of the learned District judge.
Finding of the Court:
The court held that the letter, which is unstamped, required to be stamped and if so what is the effect of its being unstamped. The court also held that the letter did not make Kailash Nath a surety for his mother's loans, as there was no request by him to the plaintiffs to forbear from suing his mother and that it was not open to the plaintiffs to take this plea for the first time in the second appeal.
Issues: 1. Whether the unstamped letter could be acted upon as it was not duly stamped. 2. Whether the letter made Kailash Nath a surety for his mother's loans. 3. Whether it was open to the plaintiffs to take the plea that the letter made Kailash Nath a surety for his mother's loans for the first time in the second appeal.
Ratio Decidendi: The court held that an unstamped letter, though admitted in evidence, could not be acted upon as it was not duly stamped. The court also held that the letter did not make Kailash Nath a surety for his mother's loans, as there was no request by him to the plaintiffs to forbear from suing his mother and that it was not open to the plaintiffs to take this plea for the first time in the second appeal. The court relied on the provisions of the Stamp Act and the Contract Act to arrive at its decision.
Final Decision: The court partly allowed the appeal and modified the decree passed by the lower appellate Court to this extent that only Shrimati Bittan Bibi will be liable under it, the suit will be dismissed as against Kailash Nath and Shrimati Bittan Bibi will pay the respondents costs of the courts below and the respondents will pay Kailash Naths costs of the Courts below. As regards the costs of this Court, the respondents will get half of theirs from Shrimati Bittan Bibi and will pay Kailash Nath his costs.
( 1 ) THE facts of the case are fully narrated in the judgment of my brother Desai J. I agree with him that the appeal of Smt. Bittan Bibi be dismissed as she is clearly liable to pay the amount decreed against her and Kailash Nath. I differ about the appeal of Kailash Nath and agree with the finding of the Court below that Kailash Nath is liable to pay the joint decretal amount.
( 2 ) THE learned District Judge did not record any definite finding about Kailash Naths being the joint borrower of the various loans or not. I, however, agree with my brother Desai J. that in view of the statement of Smt. Pratap Dei the loans were taken by Smt. Bittan Bibi alone though the actual transactions were at times through Kailash Nath or Seoti Bibi and Manno Bibi. The liability of Kailash Nath to pay the amounts borrowed by his mother depends on the effect of the letter EX. 14 written by Kailash Nath alone with the other aforesaid persons. In this letter these persons stated that they had borrowed the various sums, that they had promised to pay the amounts on insistent demands but had been unable in spite of best efforts to pay anything, that interest was increasing day by day and that therefore, they considered it proper and right to authorise them to sell the pawned ornaments in the market to appropriate the sale proceeds towards the amounts loaned on the security of ornaments and interest thereon and to appropriate any surplus towards the debt of Rs. 1300. They further said in this letter that if any amount still remained due from them they would pay that amount very early.
( 3 ) THE learned District Judge dealt with the question of liability of Kailash Nath in this manner :
"but whether the loan was actually obtained by Bittan Bibi or not, any person who takes full responsibility for the loan would also be liable. A person who is a mere surety to a loan is always liable although the loan is not in fact taken by him. No doubt Kailash Nath was a young lad at the time and had just attained his majority. But if he undertook the responsibility for the loans I see no reason why he should not be held liable for their payments. "
I am of the opinion that he was perfectly right in this view.
( 4 ) SEVERAL objections have been taken against the view of the learned District Judge.
( 5 ) ONE is that this letter is unstamped and therefore, cannot be acted upon in spite of the fact that it has been admitted in evidence by the trial Court and that if acted upon, such acting upon can be questioned later. In view of Section 36, Stamp Act, the admissibility of a document, once admitted in evidence, cannot be questioned at any stage of the same suit on the ground that it had not been duly stamped. I fail to see what purpose it would serve to admit a document in evidence on record if no action is taken on the basis of that document.
( 6 ) SECTION 35, Stamp Act, prohibits persons authorised to receive evidence to admit in evidence documents unless they are duly stamped. It also forbids such persons or any public officer to act upon, register or authenticate any document which is not duly stamped. Admitting in evidence is certainly different from acting on the document. I am of the opinion that admitting in evidence means the receiving of the document on record as a piece of evidence for taking action on its basis. Din Mohammad J. contemplated this when he observed at p. 264 in Gopi Mal v. Vidya wanti, A. I. R. 1942 Lah. 260 :
"the making of a decree consequent upon the admission in evidence of a certain instrument may be one form of acting upon the document : but this is not the only form of acting upon it and while the former may ba included in admitting in evidence, it does not follow that every kind of acting upon an instrument is covered by the words admitted in evidence as used in Section 36. "
Documents can be presented to persons authorised to receive evidence for action to be taken thereon without their being treated as evidence. It is
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