Andi Ambalam Vs. Sevani Ammal - Court Judgment

Excerpt:
- prabha sridevan, j.1. the question is whether the finding that the suit promissory note is inadmissible in evidence, because of non-cancellation of adhesive stamp, can be sustained when there is no pleading to that effect nor any objection raised at the earliest stage. 2. the appellant lent money to the respondent and the suit promissory note was executed in evidence thereof. the respondent denied execution of the promissory note, as also the payment of consideration. the trial court decreed the suit but the appellate court reversed it on a point that was not raised in the written statement and no issue was framed in that regard. 3. on the suit promissory note,in line with third respondent's left thumb impression, four stamps have been affixed and a line drawn there against with the words fpwy; brtdp mk;khs;/ sevani ammal is the respondent. according to the appellate court there is absolutely no proof to show that the stamps were affixed at the time of execution or that the cancellation was also made contemporaneously and therefore dismissed the suit. 4. learned counsel for the appellant would submit that this point was not raised earlier. five witnesses had been examined on the side of the appellant to speak of the due execution of the promissory note and p.w.3, the scribe had in fact spoken of the cancellation of the adhesive stamps. the trial court has not framed any issue about the legal effect if the cancellation was not made at the time of exemption. no evidence was let in. no defence was taken to that effect. therefore the trial court's reversal is not in accordance with law. he relied on the following judgments:(1) matlob hasan v. mt. kalawati and others (2) mrs. k. sundersanam vs . s. venkatarao 5. the learned counsel for the respondent on the other hand would submit that the document was inadmissible in evidence because it was not stamped at the time of execution and no explanation is given as to why the left thumb impression was not obtained on the stamps, when it is the evidence of p.w.4 that the respondent brought the stamps at the time of execution. he relied on several judgments to show that a pro-note, which is not duly cancelled is inadmissible in evidence. (1) dayaram surajmal v. chandulal dayabhai 1925 bom 520 (2) solamalai mudaliar v. vadamalai muthiran 23 mlj 273 (3) dhirajlal mohanlal kathewadi vs . ranchhod balaram nayak (4) mrs. rohini chandrakant vijayakar vs . a.i. fernandes (5) j.n. ezekiel v. e. mordecai air 1937 ran 408 6. section 12(2) of the indian stamp act deals with cancellation of adhesive stamps. the consequence of non-cancellation is dealt with in section 12 and it has been held that a subsequent cancellation of stamp is not good and an instrument on which a stamp was not cancelled at the time of execution must be deemed to be unstamped. the signature and stamping should be contemporaneous. section 12(3) also provides that the cancellation may be done either by writing across the stamp his name or initials or in any other effectual manner. in krishnamurthy's the indian stamp act, viii edition, the consequence of non-cancellation is dealt with and it reads thus:'this however, does not mean that stamp must invariably be put up before the signature is made. the signature may be first made and immediately thereafter, the stamp may be put and cancelled. the burden of proving that cancellation was made at a date later than that of execution is on the party, who show alleges. in fact, it has been held that the criterion for determining whether a stamp has been effectually cancelled is whether the ordinary cautious man would come to the conclusion that it has been already used.' 7. in this case, the writing across the stamp is so clear that stamp has been rendered incapable of being used again. it is an accepted position that an illiterate person could direct the scribe of a promissory note to sign across the adhesive stamp and that this signature across the stamp is legally effective for the purpose of cancellation. in fact this is quite in accordance with the tenor of the section itself which says that the cancellation must be in writing or in any other effectual manner.8. section 36 of the indian stamp act deals with the admission of instruments where not to be questioned and it reads as, '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 stamped.'9. in this case, the pro-note was admitted in evidence. it has been marked as an exhibit and used by the parties in examination and cross-examination of the witnesses and hence section 36 of the indian stamp act comes into operation. now the objection raised by the appellate court must be considered, keeping in mind the deeming provision in section 12(2) of the indian stamp act according to which that instrument is deemed to be unstamped. section 36 of the indian stamp act clearly bars any party from questioning at any stage of the same suit or proceeding the admissibility of an instrument on the ground that it has not been duly stamped. this is subject to section 61 of the indian stamp act which ofcourse deals with instruments which should not have been accepted for insufficient payment of duty and penalty under section 35 of the indian stamp act which has no application to the present case. section 36 of the indian stamp act is quite rigorous in its application and when a document has been admitted in an evidence, it can even form the foundation for the decision in the suit and no court either original, revisional or appellate can call into question the admissibility of the said document on the ground that it is unstamped or not duly stamped. the observation of willes j. in siordat v. knozyuski 139 er 1067 is 'when once a document has passed the ordeal of an investigation at nisi prius as to its liability to stamp duty or the sufficiency of the stamp, it should be subjected to no further discussion'. the document was marked in evidence, and no one raised a whisper regarding its admissibility. if the appellate court's finding is correct, then it is an unstamped instrument. but by virtue of section 36 of stamp act, the admission of the document in evidence, puts it beyond the pale of controversy atleast with regard to sufficiency or insufficiency of stamps. when this objection goes, then all the other consequences of the pro-note must follow.10. the appellate court failed to see that if it was the respondent's case that the cancellation was made subsequent to the date of execution then the burden was on the respondent to prove it. the respondent has neither pleaded this, nor has she let in any evidence in this regard, she cannot now let in evidence with regard to the same. the main stay of her defence was, she did not execute and therefore, the question of post execution cancellation was never put in issue nor was the trial court's attention focussed on it. the appellate court pleads for the respondent that the stamps were not affixed on the instrument at the time of execution, but that is not the respondent's plea. 11. on the facts of this case, while the ratio in the authorities cited by the respondent's counsel is not questioned, it is not applicable to this pro-note.12. the substantial question of law must necessarily be answered in favour of the appellant. the second appeal is allowed. no costs. the judgment and decree of the trial court is restored.