1. This is an appeal on behalf of the defendant in an actionfor recovery of money. On the 19th September 1906, the defendant borrowed fromthe plaintiff Rs. 1,100 and agreed to pay interest at the rate of two per centper mensem. On the same date, he gave a promissory-note duly stamped. In 1907the Court of Wards assumed charge of the estate of the defendant, and anotification was issued by which the creditors of the estate were invited toprefer their claims and to produce evidence in support thereof. The plaintiffpreferred his claim, but he did not produce the promissory-note before theCollector. On the 4th May 1908, he commenced this action for recovery of thesum advanced with interest thereon at the contract rate. The defendant insubstance denied the loan. The Courts below have found upon the evidence thatthe loan has been proved and have accordingly made a decree in favour of theplaintiff. On behalf of the defendant, the decree of the District Judge hasbeen assailed on two grounds, namely, first, that in view of the provisions ofsection 10B of the Court of Wards Act of 1879, the promissory-note was notadmissible in evidence, nor was oral evidence admissible in proof of the claim;and, secondly, that in view of the provisions of section 91 of the IndianEvidence Act, oral evidence was not admissible in proof of the agreement to payinterest.

2. In support of the first contention, reliance has beenplaced upon the cases of Ankur Chunder Roy v. Madhub Chunder Ghose 21 W.R. 1Prosunno Nath Lahiree v. Tripoora, Soondaree Dabee 24 W.R. 88; Sheikh Akbar v.Sheikh Khan 7 C. 256 : 8 C.L.R. 533 Valiappa v. Mahomed Khasim 5 M. 166 andPothi Reddi v. Velayudasivan 10 M. 94 reference has also been made to the casesof Golap Chand Marwaree v. Thakurani Mohokoom Kooaree 3 C. 314 Pramatha NathSandal v. Dwarka Nath Dey 23 C. 851, Banarsi Prasad v. Fazal Ahmad 28 A. 298 :A.W.N. (1906) 9 : 3 A.L.J. 25 and Krishnaji Narayan v. Rajmal Manikchana 24 B.360 at p. 361 : 2 Bom. L.R. 25 with a view to distinguish them, as they appearat first sight to negative the argument of the appellant. In our opinion thefirst ground urged by the appellant cannot prevail.

3. Section 10B of the Court of Wards Act of 1879 providesthat every creditor sub-meeting his claim in compliance with the provisions ofsection 10A, sub-section (1), shall furnish, along with the written statementof claim, full particulars, and shall, within such time as the Court mayappoint", produce all documents which are in his possession, power orcontrol (including entries in books of account) on which he relies to supporthis claim, together with a true copy of every sack document. If any documentwhich, to the knowledge of the creditor is in his possession, power or control,is not produced by him as required by sub-section (1), the document shall notbe admissible against the ward, whether during the continuance of themanagement or afterwards, in any suit brought by the creditor or by any personclaiming under him in respect of such claim. It is clear, therefore, fromsub-section (3) of section 10B, that if a document in the possession of thecreditor is not produced by him as required by sub-section (1), the document isnot admissible in evidence as against the ward. It does not follow, however,that the effect of such omission on the part of the creditor is to destroy hisrights. In fact the provisions of section 10A make it reasonably plain that theright itself is not affected by the omission. Sub-section (2) of section 10Aprovides that if a claim is not preferred as provided in sub-section (1),notwithstanding any law or contract, decree or award to the contrary, it shallcease to carry interest from the date of the expiry of the period within whichthe claim was to be preferred. The omission to prefer a claim does not,consequently, operate to destroy the claim, it would thus be whollyunreasonable to hold that the omission to produce evidence in support thereofoperates to extinguish the claim. We must take it, therefore, that,notwithstanding the provision of section 10B of the Court of Wards Act, 1879,the right of the plaintiff as creditor of the defendant remains unaffected.

4. It has been argued, however, by the learned GovernmentPleader that as the promissory-note is the foundation of the claim, the effectof the exclusion of the promissory-note from evidence is substantially to makethe claim inoperative and unenforceable. But this view is not supported by theoases upon which reliance has been placed. It was laid down by Lord Kenyon inFarr v. Price (1800) 1 East 55 : 5 R.R. 515 : 102 Eng. Rep. 22 that plaintiff,having claimed upon a promissory-note which is invalid for want of a proper stamp,is not debarred from claiming upon any ground of action which he can provewithout the aid of the note; in other words if the plaintiff could give otherevidence of consideration paid by him to the defendant, he would not beconcluded from recovering by the fact of the defendant having given an improperpromissory-note for it. The same view was adopted in the case of Welson v.Kennedy (1794) 1 Espinasses Rep. 245 where Lord Kenyon pointed out that itwould be open to the plaintiff to sue on the original consideration and that ifthe defendant alleged that there was a bar to the claim by reason of thepromissory-note being not properly stamped, such note would not be admissiblein evidence, and so the plaintiff would be in a position to enforce his claim.A similar view was taken by Mansfield, C.J., in Brown v. Watts (1808) 1 Taunt.353 : 9 R.R. 793 : 127 Eng. Rep. 870 and in the earlier decisions in Farr v.Price (1800) 1 East 55 : 5 R.R. 515 : 102 Eng. Rep. 22 and Tyte v. Jones (1788)1 East 58n : 102 Eng. Rep. 23n. The same doctrine was recognised in Crowe v.Clay (1854) 9 Ex. 604 : 23 L.J. Ex. 150 : 18 Jur. 654 : 2 W.R. 204 : 96 R.R.867 : 23 L.T. (O.S.) 38, Griffiths v. Owen (1844) 13 M. & W. 58 : 2 D.& L. 190 : 13 L.J. Ex. 345 : 67 R.R. 510, Wain v. Bailey (1839) 10 A. &E. 616 : 50 R.R. 514 : 2 P. & D. 507 : 113 Eng Rep. 234 and James v.William (1845) 13 M. & W. 828. But it is argued by the learned GovernmentPleader that the decisions of this Court in the cases of Ankur Chunder Roy v.Madhub Chunder Ghose 21 W.R. 1, Prosunno Nath Lahiree v. Tripoora SoondareeDabee 24 W.R. 88, and Sheikh Akbar v. Sheikh Khan 7 C. 256 : 8 C.L.R. 533,support his contention. It may be conceded that at first sight there doesappear to be a conflict of judicial opinions upon this question; but upon acloser examination of the cases, it will appear that they may be reconciled ifwe recognise the principle that the true question in oases of this characteris, whether the promissory-note has been taken in discharge of the claim orwhether it is merely taken on account of the debt, in other words, if the claimis founded on the original consideration it can be enforced, provided that theoriginal consideration has not merged in the bond or promissory-note.Chenbasapa v. Lakshman Ramchandra 18 B. 369. This in fact is the principlewhich was recognised by Sir Richard Garth in Sheikh Akbar v. Sheikh Khan 7 C.256 : 8 C.L.R. 533, and by Sir Lawrence Jenkins in Krishnaji Narayan v. RajmalManikchand 24 B. 360 at p. 361 : 2 Bom. L.R. 25. In the case before as theclaim is substantially based on the original consideration. When thepromissory-note was given it did not furnish any additional security for theloan. The loan itself implied a promise to re-pay and if the promissory-note betreated merely as evidence of the loan, although such evidence may be excludedby operation of law, there is no good reason why the plaintiff should not bepermitted to sue on the original consideration. On the whole, therefore, we areof opinion that upon the principle recognised in the oases of Pramatha NathSandal v. Dwarka Nath Dey 23 C. 851 and Banarsi Persad v. Fazal Ahmed 28 A. 298: A.W.N. (1906) 9 : 3 A.L.J. 25, the claim of the plaintiff may be sustained.The first contention of the appellant accordingly fails.

5. In so far as the second contention is concerned, it must,in our opinion, prevail. The terms of the contract for payment of interest werereduced to writing. The written instrument has been excluded from evidence byreason of the provisions of section 10B of the Court of Wards Act, 1879. It isclear, therefore, that under section 91 of the Indian Evidence Act, oralevidence was not admissible to prove the terms of the contract for the paymentof interest. The learned Vakil for the respondent has ingeniously suggestedthat as the instrument itself must he held inadmissible, there is no proof thatthe terms of the contract for payment of interest were reduced to writing. Thisargument is obviously fallacious. The written instrument may be looked at forthe purpose of showing that the terms of the contract for payment of interesthad been reduced to writing within the meaning of section 91 of the IndianEvidence Act, or oral evidence may be given to show that the contract, as amatter of fact, was reduced to writing. We hold accordingly that the claim forinterest cannot be sustained. It is open to the Courts however, to allowdamages in lieu, of interest [Mohamaya Prosad Singh v. Ram Khilawan Singh 15Ind. Cas. 911 : 15 C.L.J. 684].

6. The result is that this appeal is allowed in part and thedecree of the District Judge modified. The plaintiff will have a decree for theprincipal sum together with damages in lieu of interest at the rate of six percent per annum from the date of the loan to the date of realization. As regardsthe costs of the suit in the Court below, the order made by that Court willstand, there will be no costs in this appeal.

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Babu Ram Bahadur vs.Babu Dasuri Ram (03.05.1912 - CALHC)