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in possession of the lands to which the litigation of 1855 related, and ** * **
which ended in the decree of 14th April 1856 ? (P.O.)-

[63] (2) If so, was any process of Court in that litigation issued or 171 * lso=
served upon him ? s Sar PC

(3) When did the defendant first seek to exacute his decree against 800.
the plaintiffs, either at Ghazipur or Shahabad ; and were they or any of
their ancestors, viz., Jaipargash or Jhanguri, parties to the execution
proceedings which ended in possession of the property in suit, to which
the decree of 1856 related, being given to the defendant by proceedings
which ended on the 12th July 1874 ?

Their Lordships entertain serious doubts whether the Court was
justified in making the remand, by the provisions of s. 566 of the
Civil Procedure Code. All the points remitted were substantially covered
by the issues which had been previously sent for trial in the Court below ;
and it appears to their Lordships that there were sufficient materials for
the decision of the case, to which little or nothing has been added by the
evidence taken on remand.

On the 20ch November 1886 the Subordinate Judge found upon the
several points referred to him by the High Court. Upon the first point
he found that Jhanguri was a co-parcener and in possession at the dates
specified ; upon the second, that the issue of process to Jhanguri was
not proved ; and, upon the third, that it was not clearly proved that
Jhanguri was a party to the proceedings in execution which resulted in
possession of the disputed property being given to the Maharaja in the
year 1874.

These findings, together with the oral evidence taken on remand,
were duly submitted to the High Court, who, on the 4th May 1887,
reversed the Subordinate Judge's decree of the 21st July 1885, and
gave judgment for the respondents in terms of their plaint with costs.
The decision of the Court was delivered by Mr. Justice Straight,
Mahmood, J., concurring. Their Lordships agree with the conclusion ab
which these learned Judges arrived, although they are unable to
concur in all the reasoning upon which it is based. Mr. Justice
Straight says, with reference to a statement made by the respond-
ents' pleader on the 27th September 1882, " it seems to me, so
far as the plaintiffs were then concerned or are concerned [64]
now, the sole position for which they have contended was that
their ancestor, Jhanguri, was not the judgment-debtor under the decree
of the 14th April 1856." And the learned Judge adds " the whole
matter, therefore, between the parties resolves itself into the single
question of fact, Was or was not Jhanguri, the ancestor of the plain-
tiffs, a judgment-debtor under the decree of che 14th April 1856?" The
statement in question was not intended to be, and was not, a rehearsal
of the whole facts relied on by the plaintiffs, but was made by their
pleader in answer to specific questions put to him by the Subordinate
Judge ; and the issues which went to trial were nob confined to that
statement, but raised the general question whether tbe ancestors of the
plaintiffs were judgment-debtors under the decree by virtue of which the

39



13 All. 65 INDIAN DECISIONS, NEW SERIES [Vol.

1890 respondent had attached and sold their interest in the lands of Narhi and

JULY 12, others. That misconception of the real issue probably led to the remand

of the 5th August 1886, and it certainly induced the High Court, in its

PRIVY ultimate decision upon the merits of the case, to deal with many points

COUNCIL, which do not appear to their Lordships to require consideration.

The respondents endeavoured to prove that Jhanguri Bai predeceased
13 A. 53 j^s father, Achraj, some time before the year 1840; but their evidence on
(P.C,)= jji^j. p j n f; flogg no {j appear to be reliable, and their Lordships are disposed
s a P^ = * ^ink that the Subordinate Judge was right in holding that Jhanguri
win was a co "P aroener m possession at the date of the decree of 1856, and was
alive for many years afterwards. The terms of that decree, as well as of
the written statement for the defendants, and of their petition for leave to
file documents, in all of which the name of Jhanguri occurs in connec-
tion with the whole other descendants and heirs of Achraj Rai then in
life, afford prima facie evidence that he was a party to the suit, and was
included in the decree itself. Whether that inference is displaced by
antecedent evidence derived from the pattidari papers of 1840, their
Lordships do not think it necessary to determine. In their opinion,
it is an obvious mistake to assume that the right of the appellant
to take the respondent's land in execution for mesne profits wholly
depends upon the fact of their ancestor being a party [65] to the
decree of 1856. None of the defendants were, by that decree, made
judgment-debtors for mesne profits, in the sense that their property
could be attached by virtue of it. The decree, no doubt, found that
defendants in the suit were accountable for mesne profits, and by that
finding they were bound ; but it did not ascertain the amount of such
profits, or determine the important question whether the defendants were
liable jointly or severally in respect of their wrongful possession. There
was no adjudication upon any of these matters until March 1877, when
for the first time the appellant obtained a money decree which was capa-
ble of being put into execution. But, according to the testimony of the
appellant's own witnesses, Jhanguri died at least twelve months before
that date. It does not clearly appear whether his son, Jaipargash, was
then alive ; but it is matter of certainty that neither Jaipargash nor the
respondents were made parties to the suit in room of Jhanguri.

An opertive decree obtained after the death of a defendant, by which
the extent and quality of his liability, already declared in general terms,
are for the first time ascertained, cannot bind the representatives of the
deceased, unless they were made parties to the suit in which it was
pronounced ; and their Lordships will therefore humbly advise Her Majesty
that the judgment of the High Court ought to be affirmed. The appellant
must pay to the respondents their costs in these appeals.

Appeal dismissed.

Solicitors for the appellant : Messrs. Burton, Yeates, Hart, and
Burton.

Solicitors for the respondents : Messrs. Ranken, Ford, Ford, and
Chester.



40



YII]



RADHA BAI 1). NATHU BAM



13 All. 87



13 A. 66 =10 i.W.N. (1890) 238.
[66] CIVIL REFERENCE.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight and
Mr. Justice Mahmood.



RADHA BAI (Defendant) v. NATHU RAM (Plaintiff}.*

[29th October, 1890.]
Stamp Promissory note not chargeable with duty of 6, 10 or 12 annas Such -promissory
note written on impressed sheet of proper value bearing the word ' ' hundi" Note
duly stamped Act I of 1879 {Stamp Act), ss. 3 (10) 9, 33, 34, 57 Rules by Gover-
nor-General in Council Notification No. 1288 of 3rd March 1882, Rules 3, 4, 6.
Notification No. 2955 of 1st December 1882, Rul* 6-4.

The effect of Notification No. 2955 of the 1st December 1882, amending the
Rules made by the Governor-General in Council under s. 9 of the Stamp Aot (I
of 1879) and published in Notification No. 1288 of the 3rd March 1S82, is not to
prohibit all promissory notes except those chargeable with a duty of 6, 10 or 12
annas being written on impressed sheets bearing the word " hundi " A Rule
which says that certain promissory notes shall be written on impressed sheets
bearing the word " hundi " , cannot be interpreted as enacting that other pro-
missory notes shall not be written on impressed paper of the proper value if it
happens to bear the word " hundi"

A promissory note for an amount not exceeding Rs. 200, payable otherwise
than on demand, but not more than one year after date, and requiring a stamp
of two annas, is duly stamped if written on an impressed sheet of the value of two
annas, though that impressed sheet bears the word" hundi."

[P., 21 P,R. 1891.]

THIS was a reference to the High Court under s. 617 of the Civil
Procedure Code by the Judge of the Court of Small Causes at Allahabad.
The order of reference was as follows :

" This suit is baaed on an instrument which, according to the terms
of it, is a promissory note, containing as it does, an unconditional
undertaking to pay a certain sum of money to the plaintiff. It is written
on an impressed sheet of the value of two annas, bearing the word
' hundi.'

" The only plea raised on behalf of the defendant is that the instru-
ment is inadmissible in evidence, not being duly stamped according to the
rules laid down by the Government of India.

[67] " By s. 34 of Act I of 1879, no instrument chargeable with
duty shall be admitted in evidence, unless such instrument is duly
stamped.

" Under clause (10) of s. 3, ' duly stamped ' means ' stamped or
written upon paper hearing an impressed stamp, in accordance with the
law in force in British India when such instrument was executed,

" S. 9 provides, that ' all duties with which any instruments are
chargeable shall be paid, and such payments shall be indicated on such
instruments, by means of stamps (a) according to the provisions herein
contained, or (b) when no such provision is applicable thereto, as the
Governor-General in Council may by rule direct." Rules so framed have
by s. 57 the force of law.

" If therefore the instrument on which the claim in this case is
founded haa not been stamped according to those rules, it is not admis-
sible in evidence.

Civil Reference (Mis. No. 67 of 1390), under s. 617 of the Code of Civil Procedure
by Babu Promoda Charan Binerji, Judge of the Court of Small Cause at Allahabad.



1890

OCT. 29.

CIVIL
REFER-
ENCE.

13 A. 66 =
10A.W.N.
(1890) 238,



A VII 6



13 All. 68



INDIAN DECISIONS, NEW 8BBIES



[Yol,



1890

OCT. 29.

CIVIL

BEFER-

BNCE.

ISA. 66 =
10 A.W.N.
(1890) 238.



" I may observe that the instrument in question is not one which
might under s. 10 be stamped with an adhesive stamp of one anna.

" The question for consideration is whether the said instrument has
been stamped in accordance with the rules made by the Governor- General
in Council.

" Those rules were laid down in Notification No. 1288, dated 3rd
March 1882, published in page 131 of the Gazette of India of that year.
Eule 3 prescribes two kinds of stamps for indicating stamp duty, viz.,
impressed stamps and adhesive stamps. The former includes impressed
sheets, or sheets of paper bearing the impression of stamps of different
values engraved thereon, and impressed labels.

"By Kule 4 all instruments chargeable with duty except hundis may
be written on impressed sheets, and, except as provided by s. 10 of the said
Act and by these rules shall be so written.

"Eule 6 provides that hundis shall be written on impressed sheets
bearing the word, hundi,

[68] " The rules therefore lay down a distinction between impressed
sheets bearing the word ' hundi ' and all other impressed sheets, and they
seem to prescrible that hundis only should be written on sheets of the
former description, and all other instruments on those of the latter
description.

" This is further apparent from Eule 6-A prescribed by Notification
No. 2955, dated 1st December 1882 (Gazette of India, p. 487), which runs
thus :

" Promissory notes drawn or made in British India and chargeable
with a duty of annas, 6, 10 or 12 shall be written on impressed sheets
of those values bearing the word ' hundi.'

" This rule by implication directs that all promissory notes other than
those mentioned in it should be written on impressed sheets nob bearing
the word ' hundi,' so that if a promissory note which is not chargeable
with a duty of annas 6, 10 or 12 be written on an impressed sheet bearing
the word ' hundi,' it cannot be held to be properly stamped in accordance
with the rules framed by the Governor-General in Council. As the oro-
missory note on which the claim in this case is based was chargeable with
a duty of two annas only, it should not, according to those rules, have
been written on an impressed sheet bearing the word ' hundi,' and was
not therefore duly stamped within the meaning of cl. (10), s. 3. In this
view the contention of the learned Counsel for the defendant seems
to be correct.

" The learned pleader for the plaintiff has, however, drawn my atten-
tion to the fact that the invariabla practice in this district, including that
of the banks here, .has been for promissory notes to be written on impress-
ed sheets bearing the word ' hundi ' and he argues that if the defendant's
contention be allowed and the promissory note in suit and similar other
promissory notes be held to be improperly stamped, the result will be that
many dishonest debtors will be able to evade payment of just debts by
taking advantage of their own neglect to execute properly stamped instru-
ments. The circumstance cannot in my opinion be taken into considera-
tion ia the decision of the question now before me, but it certainly
[69] makes it desirable that there should be an authoritative ruling on
the point. The learned pleader has also filed copies of two unreported
decisions of the Hon'ble High Court in which it was held that promissory
notes payable on demand were properly stamped if written on impressed
sheets bearing the word 'hundi.' One of these cases was Small Cause

42



VII]



BADHA BAI V. NATHU BAM



13 All. 70



Court Keference No. 106 of 1885, dated 15th June 1885, upon a reference
made by myself from Agra. The other case was 1st Appeal No. 50 of
1885, decided on 16th November 1885. Those cases were not on all fours
with the present suit, but the principle involved seems to have been the
same, and the result of those rulings was that promissory notes written
on ' hundi ' paper were properly stamped. The arguments for a contrary
view were apparently not submitted to the Hon'ble Judges for their
consideration.

" Having regard to the fact that these two rulings exist, and also to
the fact noticed above that the practice hitherto has been for such instru-
ments to be written on sheets bearing the word 'hundi,' I deem it desirable
to refer the case to the Hon'ble High Court for an authoritative decision
on the following question :

"Is a promissory note not chargeable with a duty of annas 6, 10 or
12, written on an impressed sheet bearing the word ' hundi,' duly stamped
within the meaning of the Stamp Act (I of 1879) and admissible in
evidence?"

Mr. A. H. S. Reid, for the defendant, appeared in support of fehe
objection that had been taken to the promissory note.

Pandit Sundar Lai, for the plaintiff.

JUDGMENTS.

EDGE, G.J. This ia a reference under s. 617 of the Code of Civil
Procedure from the Officiating Small Cause Court Judge of Allahabad in
which he asks : "Is a promissory note not chargeable with a duty of
annas 6, 10 or 12, written on an impressed sheet bearing the word 'hundi'
' duly stamped ' withto the meaning of the Stamp Act (I of 1879) and
admissible in evidence ?"

The question is larger than that which we need consider in this
particular case. I propose to confine my answer to the question as
[70] applicable to the particular promissory note as to the admissibility
of which the doubt arose. It was a promissory note payable otherwise
than on demand, but not more than one year after the date. It was for
an amount which did not exceed Es. 200. and reading s. 5 of the Act in
conjunction with clause 11 of the first schedule, it was a note which re-
quired a stamp of two annas only. The note in question was written
upon stamped impressed paper of the value of two annas, but that
paper bore the word ''hundi," and the contention on behalf of the defendant
in the suit is that inasmuch as the impressed paper bore upon it the word
" hundi," it was impressed paper upon which a promissory note of this
description could not lawfully be written so as to comply with the require-
ments of the Stamp Act and the rules framed by the Governor-General
in Council under s. 9 of the Stamp Act, which rules have the force of law
under s. 57 of that Act.

It is quite clear that a promissory note, in order to be duly stamped,
must be written on impressed paper of an amount equivalent to the stamp
required. It is also clear that hundis payable otherwise than on demand,
buc not more than one year after date or sight, and for amounts not ex-
ceeding Es. 30,000 in individual value, must be written on impressed
sheets bearing the word " hundi. "

It has been contended that the effect of Notification No. 2955 of the 1st
December 1882, amending the rule published under Notification No. 1288
of the 3rd March 1882, is to prohibit all promissory notes except those
chargeable with a duty of annas 6, 10 or 12, being written on impressed

43



1890

OCT. 39.

CIVIL

EEFEB-

ENCB.

13 A. 66 =

10 A.W.N.
(1890) 238.



13 All 71



INDIAN DECISIONS, NEW SERIES



[Yol.



1890 paper bearing the word " hundi." I cannot so read the rules. The rule
OCT. 29. of the 1st December 1882, so far as it is material, is as follows :

|| (a) After Eule 6, the lollowing rule shall be inserted :

OlVIL " 6 (A). Promissory notes drawn or made in British India and

EEPER- chargeable with a duty of annas 6, 10 or 12, shall be written on impressed
ENCE. sheets of those values bearing the word " hundi."

That may, or may not, have been an absolutely unnecessary

I A. 66= rule. Whether it was so or not it is not necessary to enquire; but

10 A.W.N. [71] a ru i e w hich says that certain promissory notes shall be written on

(1890)238. paper bearing the word " h undi " cannot be interpreted as enacting that

other promissory notes shall not be written on impressed paper of the

proper value, if that paper happens to bear the word "hundi."

Under s, 9 of the Stamp Act the Governor-General in Council had
power to regulate amongst other things (l) in the case of each kind of
instrument the description of stamps which may be used, and (2) in the
case of hundis the size of the paper on which they are written. Now, in
this case the stamp impressed on the paper is of the full amount required
for this particular promissory note, and the fact that that paper would be
the paper required for a hundi requiring a two-anna stamp cannot alter
the fact that the paper is of the full amount of stamp duty for the pro-
missory note in question, or cause that promissory note to be considered
as having been written on paper which was not duly stamped for that
purpose. If the Governor-General in Council had enacted by rule that
hundis should be written on blue paper, such an enactment alone could not
be construed as prohibiting the writing of promissory notes on blue paper.
Such a prohibition as is contended for in this case must be specifically
enacted, if any such prohibition is intended. In my opinion the promissory
note in question was written on duly stamped impressed paper of the
requisite amount, and the promissory note, so far as it depends on the
stamp, is admissible.

STRAIGHT, J. By s. 5 of the Siamp Act it is declared that certain
instruments shall be chargeable with duty the amount of which is to be
found indicated in the first schedule to the Act. In that first schedule
art. 11, a document of the kind to which this case has reference requires a
two-anna stamp. By s. 9 of the Stamp Act it is declared that all duties with
which instruments are chargeable shall be paid, and such payment shall
be indicated, by means of stamps. This provision is to be given effect to,
either in accordance with other provisions contained in the Act itself, or,
where there is no such provision, in accordance with rules which may
be made by the Governor-General in Council. These rules are to deal
[72] with, firstly, in the case of every instrument, the description of stamp
to be used ; secondly, where impressed stamps are to be used, the number of
stamps to be used ; and, thirdly, in the case of hundis the size of the paper
on which instruments of that sort are to be written. No doubt that
section earmarks these particulars as amongst "other matters, " which
such rules may regulate ; but, in my opinion, these rules must be limited
within and confined to the purposes of that particular section, namely, the
duties with which the instruments are chargeable and the indication of
payment on such instruments. By s. 57 of the Stamp Act, rules, if made
by the Governor-General in Council, have the force of law, and it is com-
mon ground between the parties in this case that the question of this
reference must be answered upon the rules of March 1882, as amended
by the Notification of the 1st December 1882. By the rules of the 3rd
March 1882, it is declared, in accordance with the powers conferred by



YII]



EADHA BAI V. NATHD BAM



13 All. 74



s. 9 of the Stamp Act, that there shall be two kinds of stamps for indi-
cating the payment of duty on instruments under the Indian Stamp Act
of 1879 ; viz., (a) impressed stamps, which are divided into two classes,
impressed sheets and impressed labels, and (b) adhesive stamps. It is
admitted by the learned pleader for the plaintiff that the promissory
note, upon which his client brought bis suit, was required by s. 4 of the
Governor-General's rules to be written on an impressed-sheefc, i.e., upon
a sheet of paper bearing the impression of a stamp of a particular value,
and that it was so written is not denied on the part of the defendant, it
is contended for the defendant, however, that because upon the particular
piece of paper on which this promissory note is written the word ' hundi '
appears, therefore the paper is not an impressed sheet of the kind
contemplated by Rule 4. Both the learned Counsel for the defendant and
the learned Small Cause Court Judge apparently based their arguments
on the Notification of the 1st December 1882, i.e., the argument is this,
that because the Notification of the 1st December 1882, says : Promis-
sory notes drawn or made in British India and chargeable with a duty of
annas 6, 10 or 12, shall be written on impressed sheets of those values bear-
ing the [73] word ' hundi,' therefore no other promissory note requiring a
less stamp can be written on such impressed paper, and if it is written on
such impressed ^aper it is neither more nor less than an unstamped document.
Now it is, I believe, a golden rule of all Judges who have to administer the
laws relating to stamps and cognate matters that the provisions of such
laws are to be construed strictly, and whenever there is any ambiguity or
doubt, in favour of the subject. Consequently, following such rule and
believing it to be a sound and a just rule, I shall not hold that this document
is an unstamped document unless I find anything in the Governor-
General's rules which places it beyond all doubt that this is so. In my
opinion there is nothing in those rules which says this, and I hold that
the paper upon which this promissory note is written is none the less an
impressed paper bearing the impression of a two- anna stamp, because it
happens to have the word ' hundi ' written on it, and I therefore entirely
agree with the answer to the reference proposed by the learned Chief
Justice.

MAHMOOD, J. I also agree, and agree so entirely with what has
fallen from the learned Chief Justice, and also with what has been stated
by my brother Straight, that I have no desire to deliver a separate judg-
ment other than showing the reason why I concur with them. The first
point which I notice is one of the curious things which do occur
occasionally in legislation, namely, the passage of a bill through the
Legislature without a preamble. This is one of those exceptional
enactments, and I can imagine that it was convenient not to have a
preamble to such an enactment, just in the same way as a preamble was
apparently thought unnecessary in passing the Court Fees Act (VII of
1870.) The Legislature might not have been anxious to explain the
reasons of these two enactments, but that reason can be nothing other
than that they were taxing the Indian population, a statement which
might not quite have suited the comfort of the Indian population had the
enactment begun by saying something to this effect: "Whereas it is
expedient to impose further taxes upon the people of India, &c."

[74] I suspect this would be somewhat the imaginary preamble
which would precede both these enactments, but the adage is right,
' sometimes silence is golden.'

Still the enacting part has to be attended to, and in doing so we look



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 8 of 155)