Mootham, C.J.
1. This is a reference made to this Court under Section 61 of the Indian Stamp Act by the Chief inspector of Stamps.
2. The question is whether a certain promissory-note is chargeable to stamp duty as a bond, The promissory-note reads thus :
'On demand I promise to pay at Gonda to the Court of Wards, Utraula, Bilaspur Estate, district Gonda, the sum of Rs. 1,50,000 with interest at 3 per cent. per annum for value received by me on 5-7-'5l.'
This document, which was duly stamped, as a promissory-note, was signed by the executant and bears the signatures of two witnesses.
3. A bond is defined in Section 2(5) of the Stamp Act as including
'any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another.'
The promissory-note the subject of this reference is attested by a witness and, not being expressed to be payable to order or bearer, prima facie comes within the ambit of this definition. Explanation (J) to Section 13 of the Negotiable Instruments Act, a section which defines a 'negotiable instrument,' provides however that a promissory-note which is expressed to be payable to a particular person and does not contain words prohibiting transfer Or indicating an intention that it shall not be transferable is payable to order and the question is whether the effect of this explanation is to exclude the promissory-note from being a bond as defined in the Stamp Act. It will, in my opinion, only have that effect it it can be said that the promissory-note has become an instrument 'payable to order;' and I do not think it has.
4. The stamp duty on any instrument is to be determined with reference to the terms of the instrument. In Gatty v. Fry, (1877) 2 Ex D 265, the question was whether a post dated cheque payable to bearer and stamped as a bill of exchange payable on demand was admissible in evidence after the date of the cheque. Cleasby, B., delivering the judgment of the Court said :
'The question therefore is whether, if upon the face of the instrument the stamp is sufficient, as was the case here, since the cheque, at the time of the trial, was payable on demand, it cannot be used in evidence, because, in fact, when it was given, being post dated, it was not then payable. We think this case is concluded by authority, and that in considering whether the stamp is sufficient we must look at the instrument itself alone. The authorities are Williams v. Jarett, (1833) 5-B and Ad 32; Whistler v. Forester, (1863) 14 CB (N. S.) 248; Austin v. Bunyard, (1865) 6 B and Section 687,...What the Act requires is that a particular instrument which means the paper with certain things written upon it, shall have a particular stamp applicable to that instrument, not to that instrument coupled with other circumstances.' (1877) 2 Ex D 265 was approved by the Court of Appeal in Royal Bank or Scotland v. Tottenham, (1894) 2 QB 715, and the law so laid down has been consistently followed in India : See Ramen Chetty v. Mahomed Ghouse, ILR 16 Cal 432; Sakharam Shankar v. Ramchandra Babu, ILR 27 Bom 279; In re C R. M. M. L. A. Chettiar Firm, ILR 13 Rang 613 : (AIR 1935 Rang 243) (SB).
5. The instrument before us is one which by its terms is not payable to order. Exp. (1) of Section 13(1) of the Negotiable Instruments Act was introduced into the Act by the Negotiable Instruments (Amendment) Act, 1919, and its effect was to bring within the class of 'negotiable instruments' certain promissory-notes not payable to order which previously were not negotiable. The fact that a promissory-note which is not expressed to he payable to order is now (provided it does not contain words prohibiting transfer or indicating an intention that it will not be transferable) a negotiable instrument does not, in my opinion, make it an instrument payable to order within the meaning of the Indian Stamp Act.
This is a view which has been taken by the Calcutta High Court in Khetra Mohan v. Jamini Kanta : AIR1927Cal472 , a decision which has been followed by the Madras High Court in Veerap-pudayan v. Oganthappudayan : AIR1929Mad599 and by the Nagpur High Court in Dasrath Tukaram v. Kashiram Raoji AIR 1937 Nag 61. With great respect I am of the opinion that the view taken in those cases is correct and I would accordingly answer the question referred to this Court by hold-ing that the document is chargeable as a bond with a duty of Rs. 1,406/4/0.
R. Dayal, J.
6. This is a reference under Section 61 of the Stamp Act. The following document was executed by Rani Raj Rajeshwari Devi, on 8-11-1951 ;
'On demand I promise to pay at Gonda to the Court of Wards Utraula Bilaspur estate District Gonda the sum of Rs. 1,50,000/- (Rs. one Lac fifty thousand) with interest at 3 percent, per annum for value received by me on 5-7-1951.'
7. The point for decision is whether this document is a bond under Section 2(5)(b) of the Stamp Act chargeable with a duty of Rs. 1406/4/-under Article 15 of the U. P. Stamp (Amendment) Act of 1948.
8. It is not disputed that the document in suit comes within the definition of pronote as defined in Section 4 of the Negotiable Instruments Act and, therefore, it comes within the definition of promissory note in Clause (22) of Section 2 of the Stamp Act.
9. In view of Clause (5) of Section 2 of the Stamp Act a Bond includes :
'any instrument attested by a witness and not payable to order or bearer, whereby a person, obliges himself to pay money to another.'
The document in suit is attested by witnesses and does not state expressly that it is payable to order or bearer. It is therefore contended on behalf of the Chief Inspector of Stamps acting as Collector that the document is a 'Bond.' I do not agree with this contention in view of the provisions of Section 13 of the Negotiable Instruments Act.
10. The relevant provisions of Section 13 of the Negotiable Instruments Act are :
'(1) A 'negotiable instrument' means a promissory note, bill of exchange or cheque payable either to order or to bearer.
EXPLANATION I. : A promissory note, bill of exchange or cheque is rayable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.
(2) .....'
11. In view of the Explanation I to Section 13 of the Negotiable Instruments Act the document in suit is payable to order and is consequently a negotiable instrument. The terms of this document make it in law an instrument payable to order. They do not make it 'not payable to order' and therefore do not make it a 'Bond.'
12. It is however argued that unless the document itself states expressly that it is payable to order it will, for the purposes of stamp duty, be considered to be 'not payable to order.'
13. Clause (5) of Section 2 of the Stamp Act does not state that the fact of the non-pay ability of the instrument to order be expressed in the instrument itself. If this clause had required the document itself to express that it would be payable to order in order that it be not considered a Bond, this definition of the Bond would require the insertion of an expression expressed to be between the words 'not' and 'payable.' There seems to me no justification for considering these words to exist in the definition of the word 'Bond.' According to CL (7) of this section cheque means a bill of exchange drawn on a specified banker and not expressed to be payable otherwise on demand. It is to be noticed that the expression 'expressed to be' exists between the words 'not' and 'payable.' These words, as already noticed, do not appear in the relevant definition of the Bond.
14. Clause (21) of this section defines power of attorney to include any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. I do not expect the document itself to mention that it is not chargeable with a fee under the law relating to court-fees for the time being in force. Whether the document is so chargeable or not would depend on the provisions of the Court-fees Act and the terms of the document under consideration.
15. In support of the contention reliance is placed on the cases of : AIR1927Cal472 , Rozario v. Hariballabh AIR 1927 Nag 195, AIR 1937 Nag 61, and : AIR1929Mad599 . The later cases have just followed the earliest Calcutta case. The only reason in that case for holding that the document should on its face indicate that it waS( not payable to order or bearer is stated to be 'that for the purposes of tlie Stamp Act the documents as they appear on die face of them have to be considered.'
16. In support of this proposition, reliance is placed on the observations in (1877) 2 Ex D 265 which have been followed in oilier cases. I do not draw such a conclusion from those cases.
17. The question in (1877) 2 Ex D 265 was-whether a post-dated cheque payable to bearer can be used in evidence after the date of the Cheque. The answer was :
'We think this case is concluded by authority; and that in considering whether the stamp is sufficient we must look at the instrument itself alone. The authorities are, (1833) 5 B and Ad 32; (1863> 14 C. B. (N. S.) 248; (1865) 6 B and S 687.
Any other conclusion would have introduced the greatest difficulty in the administration of justice, and before a judge could determine whether the stamp was sufficient, the trial would be interrupted by collateral inquiries as to facts accompanying the giving of the instrument. What the Act requires is that a particular instrument, which means the paper with certain things written upon it, shall have a particular stamp applicable to that instrument and not to that instrument coupled with? other circumstances.'
The observations, to my mind, simply mean that the Court is not to make collateral inquiries with respect to facts accompanying the giving of the in-strument and not that the Court is to determine the nature of the document on the express language of the instrument alone without taking into consideration under which category the document comes on account of its terms and their effect of the terms of the document in conjunction with the legal provisions can create no practical difficulties in the administration of justice; rather it would help it.
18. In (1833) 5B and Ad 32, the question for decision was whether a document not properly stamped when executed but properly stamped according to the date it bore was admissible in evidence. The answer was in the affirmative. Den-man, C. J. said :
'If a bill bears no date, we must ascertain, by evidence, the day when it issued; but where there is a date, that must be considered as the time to which the schedule refers.'
This case therefore contemplates even the taking of evidence about fact in determining the admis-sibility of a document on the ground of its being properly stamped.
19. In (1863) 14 CB (N.S.) 248, reference was. made to (1833) 5 B and Ad 32 in connection with the view that the instrument is to be taken to have been drawn according to the date appearing upon the lace of it.
20. In (1865) 6 B. and Section 687 the cases of (1833) 5 B and Ad 32 and (1863) 14 CB (N. S.). 248 were relied upon for the principle 'that in construing the early statutes on stamps we are to look to the date on the face of the instrument.'
21. In (1892) 2 QB 715 the question arose again with reference to a post dated cheque and it was held that a post dated cheque, stamped as a cheque, was admissible in evidence in an action brought, after the date of the cheque, by the holder, since, under the Stamp Act, 1891, the test of admissibility was whether the instrument appeared, when tendered in evidence to be sufficiently stamped; Lord Esher, M. R. said at p. 718 :
'The only other defence raises the question whether the cheque was payable on demand. It is dated August 10, and there is nothing on the face of it to show it is not payable on demand .. ..... Questions under the Stamp Act must be determined by the conditions existing when the question is raised. An objection to a stamp has to be determined by the judge at the trial, and a stamp objection to a cheque, which is otherwise in order, that it was post-dated, could only be taken if the action comes on before the date on the cheque.'
It appears that the contents of the cheque did not have the expression 'payable on demand' and that therefore it was considered payable on demand from the nature of its contents and the law applicable to it, and it is in such context that it was observed : 'There is nothing on the face of it to shew it is not payable on demand.' It can be the face of the document in suit to show it was said in 'the present case that there is nothing on not payable to order. Its payability to order is a result of the provisions of Section 13 of the Negotiable Instruments Act.
22. In ILR 16 Cal 432, the question for consideration was about the admissibility of a postdated cheque. Wilson, J. said at p. 435 :
'The cases of Bull v. O' Sullivan (1871) 6 QB 209 and (1877) 2 Ex D. 265, which cases are entirely in accordance with the earlier authorities are dear to show that in determining whether a document is sufficiently stamped 'for the purpose of deciding upon its admissibility in evidence, you must look at the document itself as it stands, and not at any collateral circumstances which may be shown in evidence'; .....'
The case is therefore limited to the question of admissibility and excludes the consideration of collateral circumstances to be proved by evidence but does not exclude a determination of the nature of the document on legal considerations.
23. The case of ILR 27 Bom 279, again excludes from consideration all such facts which would be matter of evidence.
24. In ILR 13 Rang 613 : (AIR 1935 Rang 243) Page, C. J. observed at p. 616 (of ILR): at p. 244 of AIR) :
'It is well settled that the stamp duty payable upon an instrument must be determined by referring to the terms of the document, and that the Court is not entitled to take into consideration evidence de hors the instrument itself.'
This case gives effect to the view that facts dependent upon evidence have no bearing on the de-termination of the nature of a document for the purpose of stamp duty. The stamp duty is to be determined by reference to the terms of the document. It is on account of the terms of the document in suit that it should be considered to be a promissory note and not a Bond because the terms of the document would make it payable to order in view of Section 13 of the Negotiable Instruments Act.
25. In Janardhano Rao v. Secretary of State, : AIR1931Cal193 , Rankin, C. J. said at p. 34 (of ILR Cal) : (at p. 193 of AIR) :
'Now, an instrument must be stamped according to its legal effect and intention.'
and again at p. 36 (of ILR Cal) : (at p. 194 of AIR):
'The instrument has to be stamped according to the true intent and meaning of the bargain which it represents,'
It would follow from these observations that in considering the proper stamp duty on a particular instrument the terms of the instrument and their legal effect should be taken into consideration for the purposes of the Stamp Act,
26. I would therefore hold that the document in suit is not a Bond under Section 2(5)(b) of the Stamp Act.
Srivastava, J.
27. I have had the privilege of reading the judgments prepared by my Lord the Chief Justice and by my brother Dayal, J. I have no hesitation in preferring the view of the former. What appears to have weighed greatly with brother Dayal is that the definition of the term 'bond' does not require that the non-payability of the instrument to order or bearer should be expressed in the instrument itself. He concludes from this that if the instrument is to be considered payable to order by virtue of the First Explanation of Section 13 of the Negotiable Instruments Act, it gets excluded from the ambit of the definition. Keeping in mind the purpose for which the explanation was added in 1919, however, it appears to me that the Explanation makes the instrument payable to order only for the limited purpose of negotiability and not for all purposes. An instrument may be payable to order for the purpose or Negotiable Instruments Act, but that does not necessarily make it so payable for the purposes of the Stamp Act. It is not without significance that no Explanation similar to Explanation I of Section 13 of the Negotiable Instruments Act was added to the definition of the term 'bond' in the Stamp Act. For the purpose of judging the stamp duty payable under the Stamp Act, we have to confine ourselves to the provisions of that Act and the terms of the instrument in question. As contemplated by Section 27 of the Stamp Act, all facts and circumstances affecting the chargeability of the instrument with duty or the amount of duty with which it is chargeable are to be fully and truly set forth in the instrument itself and it is on their basis that the duty has to be assessed.
28. In respectful agreement with my Lord the Chief Justice therefore I also answer the question referred to us in the affirmative and hold that the document before us is chargeable to duty as a bond.
By The Court
29. We are of opinion that the document is chargeable as a bond with a duty of Rs. 1,406/4/0, and we answer the question referred to us accordingly.