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7. When the promissory note is properly stamped it is immaterial whether it came into existence because the intention was to reduce the terms of a contract to the form of a document or because the intention was to create a negotiable instrument. If, however, the document alleged to be a pronote is inadmissible in evidence because it is insufficiently stamped or not stamped at all the position is different under Section 35, Stamp Act, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. It was held in Mt. Bibbo v. Gokaran Singh, ('37) 24 A.I.R. 1937 All 101 that a promissory note insufficiently stamped was inadmissible in evidence for any purpose. When a document relied on as evidence by either party is considered by a Court to be inadmissible in evidence, under o. 13, B. 6, Civil P. C., a certain endorsement has to be made on it together with a statement of its having been rejected and under Rule 7(2) documents not admitted in evidence shall not form "part of the record and shall be returned to the persons respectively producing them. Under Section 64, Evidence Act, documents must be proved by primary evidence. When therefore, a plaintiff alleges a loan and files with his plaint a document which he alleges to be a promissory note and it is found to be unstamped or insufficiently stamped there can be no proof of the contents of the document, whether of the fact that it is signed by someone or of the identity of the person who has signed it, supposing there be a signature, or of the terms of any transaction recorded in that document and the document should be returned. A suit on the pronote, when the document is alleged to be a pronote, must consequently fail. If the pronote was, however, executed in connation with a loan the question remains whether a suit on the loan can be maintained. If it is alleged that the pronote was given in full satisfaction of the loan the suit must fail but as has been pointed out in Maung Chitv. Boshan N.M.A. Kareem Oomer & Co. ('34) 21 A.I.R. 1934 Rang. 389 and Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 the pronote may have been given in conditional payment or as collateral security.

Dar, J.

10. This is an appeal against a judgment and decree, dated 26th January 1938, of the Civil Judge of Azamgarh, by which he affirmed a judgment and decree, dated 9th September 1937, of the Munsif of Mohammadabad Gohna, which dismissed the plaintiff's claim for money lent. The plaintiff, Shep Nath Prasad, alleging that on 3rd March 1934, he had lent a sum of Rs. 495 to Bhaggu Nonia, in proof of which Bhaggu Nonia had executed a promissory note and a receipt of the same date in his favour, and the said loan not having been paid, raised an action in the Court of the Munsif of Mohammadabad Gohna after the death of Bhaggu Nonia against the defendants, Sarju Nonia and Eamdeo Nonia, who are nephew and daughter's son, respectively, of Bhaggu Nonia, for recovery of a sum of Bs. 700 for principal and interest due on the said loan. The Munsif dismissed the claim holding that the promissory note being insufficiently. stamped was inadmissible in evidence and apart from the promissory note the alleged loan could not be proved by any other evidence. This judgment was affirmed in appeal by the Civil Judge of Azamgarh. The plaintiff has now made this second appeal and on account of conflict of judicial opinion which exists on this question the case has been referred to this Bench. Section 91, Evidence Act (1 of 1872) enacts that when the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of the contract except the document itself or the secondary evidence of its contents when secondary evidence is allowed by law. Illustration (b) of the said section is as follows: "If a contract is contained in a bill of exchange, the bill of exchange must be proved." Section 35, Stamp Act (2 of 1899), enjoins that no instrument chargeable with duty shall be admitted in evidence for any purpose unless the instrument is duly-stamped.

The further objection to the admissibility of the document was that it recorded the terms of a contract reduced to the form of this document and that under Sections 91 and 92, Evidence Act, no oral evidence was admissible to contradict, vary, add to, or subtract from its terms. The answer is that the document does not record or purport to record all the terms of the contract between the parties.

35. The same view was taken by a Division Bench of this Court in Kundan Lal v. Bhikari Das ('29) 16 A.I.R. 1929 All. 254, The case was decided by Sulaiman and Kendall JJ. This case was decided before the Full Bench case in Nazir Khan v. Bam Mohan ('31) 18 A. I. R. 1931 All. 183, but has not been referred to in the judgment of the Full Bench. It clearly lays down that where whole of the contract was not embodied in the hundis which were the basis of suit in that case other evidence could be admissible. I do not think I need burden my judgment with any further authorities on this point as the proposition appears to have been generally accepted by all the High Courts. The next point which is in controversy is as to whether it would be permissible to look at the document for the sake of determining if it contained all the terms of the contract after the document has been held to be inadmissible in evidence for want of a proper stamp under Section 35, Stamp Act. My answer to this would be in the affirmative and I am fortified in this view by the pronouncement of that eminent Judge, Sir Asutosh Mookerjee in Ram Bahadur v. Dasuri Ram ('13) 17 C.L.J. 399. It is no doubt true that the case reported in Ram Bahadur v. Dasuri Ram ('13) 17 C.L.J. 399, was not one in which the document was held to be inadmissible under Section 35, Stamp Act, but it was inadmissible under Section 10B, Court of Wards Act, 1879, which contains a provision similar g to that of Section 35, Stamp Act. The learned Judge made the following observations:

36. Independently of this ruling, I think the reasonable view would be that the document can be looked into in order to determine whether it contained all the terms of the contract or not. In order to make Section 91 applicable there would always be a conflict between the plaintiff and the defendant. The former would urge that it does not contain all the terms; while the contention of the latter would be the contrary. I do not think that it would be proper to allow the parties to give oral evidence on that point when the document itself is available. It is no doubt true that the wordings of Section 35, Stamp Act, are "no instrument chargeable with duty shall be admitted in evidence for any purpose.... Unless such instrument is duty stamped." It has been suggested that the effect of this section would be that the document when it is not duly stamped must be treated as it never existed on the record. With due deference to the supporters o£ this view I must say that it is not correct. Even the question whether it was stamped or not has to be gone into by different Courts and those Courts have to look into the document itself for the purpose of deciding about the sufficiency of the stamp or otherwise. Then my view is that the words "shall be admitted in evidence" only mean that the document shall not be made the basis of the decision or that it shall not be relied on to support any finding, but to look at the document merely for the purpose of finding out whether it contained all the terms or not (in order to attract the provisions of Section 91, Evidence Act) would not be really admitting it in evidence. In this view of the matter, I think it must be held that if the Court finds on inspection of the document that it does not contain all the terms of the contract it can allow the plaintiff to adduce oral evidence as in that case, the provisions of Section 91, Evidence Act, are no bar. I may, at this stage, point out that a pronote rarely, if ever, contains all the terms of the contract between the parties. Page C. J. in the Full Bench case in Maung Chitv. Boshan N.M.A. Kareem Oomer & Co. ('34) 21 A.I.R. 1934 Rang. 389 is stated to have expressed himself on this point in the following words: