Rajammal vs Sengava Naicker

Padmanabhan, J.—The defendant in O.S. No. 7 of l974 on the file of the Court of the Subordinate Judge. Ramanathapuram at Madurai, is

the appellant. The plaintiff (respondent) filed the suit for the recovery of a sum of Rs.11,158.35 on the foot of Ex. A-1, promissory note, d. 26th

August 1972, for Rs. 9,600, executed by the defendant in favour of the plaintiff. The plaintiff has stated in the plaint that the defendant is not an

agriculturist entitled to the benefits of Tamil Nadu Act 4 of 1938. The defendant contended that she did not execute Ex.A-1 promissory note, and

she did not receive Rs. 9,600 as alleged. The defendant''s husband, one Perumalsami Naicker was looking after the management of the properties

of the defendant. While so, he used to take blank papers containing thumb impressions of the defendant under the pretext that they were needed

for taxation purposes and also for the purpose of litigation against one Ponnu Jayappan and Guruvammal. Subsequently, the defendant and her

husband Perumalsami Naivker fell out. The suit promissory note has been forged by the plaintiff in collusion with the defendant''s husband. It is

further pleaded by the defendant in her written statement that the stamps on the suit promissory note have not been defaced, in the manner required

under the Stamp Act. On that ground also it was pleaded that the suit promissory note was not enforceable in law. In any event, the defendant

pleaded that she was entitled to the benefits of Tamil Nadu Act 38 of 1972.

The trial court raised the following issues for consideration:

Whether the suit pronote is true and valid and supported by consideration?

Whether the defendant is entitled to the benefits of Act 38 of 1972?

To what relief, if any, is the plaintiff entitled?

The learned trial Judge found that the suit promissory note was genuine and supported by consideration. He further found that stamps on Ex A-

1 have been defaced according to law and that therefore, Ex. A-1 is enforceable. However, the trial court found that the defendant was entitled to

the benefits of Tamil Nadu Act 38 of 1972. In the result, the trial court passed a decree against the defendant for recovery of a sum of Rs. 10,768

with proportionate costs and with future interest at 6 percent per annum.

The aggrieved defendant has filed the above appeal. Miss. Malini, counsel for the appellant raised two contentions--(1) The finding of the trial

court that the suit promissory note is true and genuine and supported by consideration is not correct. The plaintiff has not established that the thumb

impression found on Ex. A-1 is that of the defendant. (2) In any event, the suit promissory note is not enforceable in law as the stamps on Ex. A-1,

have not been defaced according to the requirements of S.12 of the Stamp Act.

The learned trial Judge has stated in paragraph 6 of his judgment that the defendant has not stated in the written statement that the thumb

impression in the suit promissory note is not hers. This is factually wrong. In paragraph 3 of the written statement the defendant has stated? ""The

pronote is a rank forgery. This defendant did not affix her thumb impression in any pronote"". In paragraph 5 of the written statement she has made

an alternative plea that if the court found that the thumb impression on the suit promissory note was hers, then the promissory note would have

been fabricated on blank papers containing her thumb impression which she used to give to her husband for the purpose of litigation against Ponnu

Jayappan and Guruvammal. Therefore, the premises on the basis of which the trial court proceeded to consider the issue regarding the genuineness

of the promissory note is wrong. It is under the impression that the defendant had not pleaded in the written statement that she did not put her

thumb impression in the suit promissory note that the lower court discredited the evidence of the defendant, as D.W.1., when she stated in the box

that she did not put the thumb impression in the suit promissory note. The plaintiff has not taken any steps to have the thumb impression in the suit

promissory note compared by a finger print expert.

I myself had a look at Ex. A.1. The document looks suspicious. The thumb impression is found on the left side. The last two lines are closely

written in such a way as to complete the wording of the promissory note just above the thumb impression found on the left hand side of the

promissory note. If the entire promissory note had been written with uniform spacing as is found in the earlier portion of the promissory note the

matter would have come over the thumb impression. Therefore, for completing the writing on the document just above the thumb impression the

last two lines have been written closely. The stamps are affixed on the right side. On the stamps we find the following words written

In between the stamps and the thumb impression we find a line drawn. It should be noted that the line does not touch the stamps on the promissory

note. P.W.1 is one of the attestors to the promissory note. He has stated in chief-examination that the defendant put her thumb impression and one

Narayanaswami wrote the words on the stamps. In cross-examination he has stated that he does not know the reason why the thumb impression

was not taken on the stamps. P.W.2, the plaintiff has stated that he does not know the reason why the last two lines in the promissory note were

written so closely. He has admitted that the thumb impression of the defendant was taken after the stamps were affixed. But according to him

nobody suggested that the thumb impression should be put on the stamps. In the circumstances, I am unable to agree with the finding of the trial

court that the plaintiff has been able to establish that the promissory note was executed by the defendants. The plaintiff has also not been able to

prove that he paid consideration for the promissory note. In his evidence in cross-examination he stated that the defendant requested for money in

the month of Ani. He told her that he had been expecting money only in the month of Avani, He has further stated that the defendant wanted Rs.

10,000 but he was able to find only Rs. 9,600. He has also stated that there was no record to show how he got Rs. 9,600 in the month of Avani.

He had sold chillies and cotton. But he has no accounts. Still be would say that when the defendant came to him in the month of Avani he had Rs.

9,600 with him. If really he has been carrying on business in chillies and cotton and if he had realised Rs. 9,600 by the sale of chillies and cotton he

must have some accounts or at least he should have been in a position to let in some other concrete evidence to show that he had Rs. 9,600 and

that too in cash on the date of Ex. A1 promissory note. The learned Judge refers to Exs. A5 to A8 patta in respect of the certain lauds and also

Exs. A 9 and A10 two promissory notes executed by strangers in favour of the plaintiff to show that he is a man of means. It is not the plaintiff''s

case that Rs. 9,600 which he gave to the defendant on the date of Ex. A1 was the income from the landed properties which he had kept in cash

with him. He himself has categorically admitted that he had no cash with him in the month of Ani and that he got Rs. 9,600 by the sale of chillies

and cotton, There is no evidence on this aspect except the bare statement of the plaintiff himself. When we consider the question of consideration

for Ex A1 in conjunction with the suspicious nature of Ex. A1 itself, better evidence--very clinching evidence is required to establish that the

plaintiff paid Rs. 9,600 to the defendant on the date of Ex. A1. The learned Judge has stated that according to the plaintiff he lent money to the

defendant for improvement of a building which she owned and that since the defendant herself admitted having in proved the building, the case of

the plaintiff that be paid Rs. 9,600 to the defendant must be accepted as true. I am unable to agree. I hold that the evidence on the aide of the

plaintiff is not sufficient to establish that a turn of Rs. 9,600 was paid by the plaintiff to the defendant on the date of Ex. A1. I therefore hold that the

plaintiff has not proved that the defendant executed Ex. A1, promissory note and that the promissory note was supported by considerations.

The next contention of the learned counsel for the appellant is based on S.12 of the Stamp Act. S.12 reads as follows:

12(1)(a). Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person, shall, when affixing

such stamp cancel the same so that it cannot be used again.

(b) Whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already

cancelled in manner aforesaid, cancel the same so that it cannot be used again.

(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, as far as such stamp is

concerned, be deemed to be unstamped.

(3) The person requited by S.(1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or

initials of his firm with the true date of his so writing, or in any other effectual manner.

The section enjoins cancellation at the time the stamp is affixed if the instrument has already been executed or at the time of execution. If the

adhesive stamp is not cancelled, the instrument is under S. 12(2) deemed to be unstamped. Further, in the case of a promissory note if it is

stamped with several adhesive stamps all the stamps must be cancelled. If any one stamp is not cancelled the instrument is deemed to be not duly

stamped and is inadmissible in evidence. In Tun Hinting v. Ma Kha Bu A.I.R 1929 Rang. 270 the question arose whether the promissory note in

question was sufficiently stamped. In the promissory note one of the two one anna stamps was not duly cancelled as require under S.12(1)(b) of

the Stamp Act. Therefore, the question arose whether the promissory note was sufficiently stamped, and if not, whether it was inadmissible in

evidence. The learned Judge held ""if one of the two anna stamps on a promissory note is not duly cancelled and the one anna stamp alone is not

sufficient for such note, it cannot be held that the promissory note is sufficiently stamped, for, under S. 12(7) the note is to he deemed unstamped

so far as the uncancelled stamp is concerned"".

In Khasan Shab v. Atta Ullah AIR 1933 Lab. 148 out of four stamps only three were cancelled and one was not cancelled as required by S.12.

The Bench of the Lahore High Court held that where in a promissory note out of four stamps only three were cancelled and one was not cancelled

the document was inadmissible in evidence. The decision in Tun Dalihar v. Ma Kha Bu AIR 1929 Rang. 270 was also relied on by the Lahore

Bench.

In Sohanlal Nihal Chand v. Raghunath Singh AIR 1934 Lab. 606 the law is stated as follows :

The principle underlying in S.12 is that there should not be any possibility of a stamp affixed to an instrument being used again. So far as an

uncancelled stamp is concerned, the instrument to which it is affixed shall be deemed to be unstamped. So, where a pronote requiring four annas

stamp bears only three cancelled one anna stamps and one uncancelled one anna stamp it should be considered as insufficiently stamped"".

On the basis of the above decisions, it is clear that unless the stamps found on a promissory note are cancelled in the manner required by S.12

of the Stamp Act, the promissory note must be deemed to be unstamped and inadmissible in evidence.

As already stated by me while dealing with the question of the genuineness of the promissory note in the present case, we find the following

words on the four stamps--

It is not disputed before me that by Mr. T. R. Mani, counsel for the respondent, that the defendant has not put any ''keeral'' on the stamps affixed

to Ex. A1. In fact, P.W.1, has stated in chief-examination that Narayanaswami wrote the words on the promissory note. Apart from the statement

of P.W.1, there is absolutely no evidence that the stamps were defaced by Narayanaswami by writing the words ''Keeral Rajammal'' over the

stamps at the behest of the executant of the promissory note. In such circumstances, the question arises whether the defacing of the stamps in Ex.

A1 by Narayanaswami by writing the words ''Keeral Rajammal'' over the stamps would be sufficient compliance with S.12 of the Stamp Act. S

12(1)(a) of the Stamp Act states that whoever, affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any

person shall, when affixing such stamp, cancel the same so that it cannot be used again. S. 12(3) states that the person required by sub-S.(1) to

cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of

his so writing, or in any other effectual manner. Mr. T.R. Mani, learned counsel for the respondent, submits that since the executant of Ex. A1

promissory note viz., the defendant is an illiterate lady it should be sufficient if the cancellation of the stamps is done by some other person. For this

proposition he relies on the decision in Thakari Mallah Vs. Ram Tahal Tewari, . In that case, the adhesive stamp on the promissory note in

question bore the signature of the executant in the handwriting of the scribe of the promissory note. There, it was contended that if the executant

was an illiterate and could not therefore sign across the stamps he must put his thumb mark thereon and in the absence of a thumb mark or anything

done by himself the stamp could not be deemed to have been duly cancelled. In dealing with such a contention the learned Judge of the Allahabad

High Court held that as illiterate person can direct the scribe of the promissory note or any one else to sign across the adhesive stamp on his own

behalf, and such signature would be quite as good as his own signature for the purpose of cancellation. Having stated this proposition of law the

learned Judge found as a fact that the signature of the executant was made by the scribe on the adhesive stamp under his direction in that behalf

and in token of cancellation thereof. This decision far from helping Mr. T.R. Mani helps the defendant. There is absolutely no evidence in this case

that the stamps were cancelled by the executant herself or by Narayanaswami under directions from the executant.

The next case relied on by Mr. T.R. Mani is Manepalli Sattemma Vs. Manepalli Satyanarayana and Another, . In that decision the main

question that arose for consideration before Narasimhan, J. was whether the stamp which bore a line across it would carry an impression that it

was used. The learned Judge held that it was sufficiently indicative of cancellation. Therefore, the situation at we have in this case did not arise for

consideration before the learned judge of the Andhra Pradesh High Court.

Mr. T. R. Mani then urged that the question was not raised in this form in the trial court and if it had been he would have been in a position to

prove that the words on the stamps were written in such circumstances which would make it a valid cancellation. I am unable to accept this

contention of the learned counsel for the respondent. As I have already referred to, the defendant pleaded clearly in paragraph 4 of the written

statement that the stamps have not been defaced in the manner required under the Stamp Act. Further, the question was also raised before the trial

Judge at the time of arguments and has been dealt with by him in paragraph 10 of his judgment. The trial Judge has stated that the defendant''s

mark (keeral) bad been taken on the stamps and that would be sufficient to deface the stamps, Mr. T. R. Mani, who also had an inspection of Ex.

A1, candidly admitted that no mark of the defendant (keeral) was found on the stamps. On the other hand, ''the'' words ''Keeral Rajammal'' are

found written and I have already referred to the evidence of P.W.1 to the effect that these words were written by Narayanaswami. In the

circumstances, the learned counsel for the respondents is not correct in saying that the question that the stamps were not properly cancelled in Ex.

A1 was not raised in the trial court. I therefore overrule his request that the matter should be remanded to the trial court for a fresh consideration of

the question or at least, a finding called for, on the basis of fresh evidence to be let in by the parties. When the matter had been squarely raised in

the written statement the plaintiff should have been careful enough to let in proper evidence to show that the cancellation of the stamps in Ex. A1

was done in such circumstances, as to render the cancellation valid in terms of S. 12 of the Stamp Act.

Learned counsel for the respondent did not dispute the proposition that the cancellation must be either by the executant or by somebody at her

behest or authority. I therefore, hold that in the absence of any evidence to show that the stamps were cancelled by the defendant at the time she is

said to have executed the promissory note it must be deemed to be unstamped and hence not enforceable in law. In the result, I set aside the

judgment and decree of the trial court and dismiss the suit. The appeal is accordingly allowed with costs. The plaintiff-respondent will pay the

court-fees to the State.