MALVANKAR.J -This is an appeal against the judgment and decree passed by the district Judge, Osmanabad, in Civil Appeal No. 34 of 1968, arising out of the decree passed by the Subordinate Judge, Osmanabad, in Civil Suit No. 52/1 of 1955. 2. The predecessor of the respondents one Hirachand Amichand filed the suit for recovery of Rs.5,2500, S. on the basis of pro-note date December 6, 1952, alleged to have been executed by one Shivlal Raoji, the predecessor of the present appellants. The original defendant contested the claim denying both the execution and consideration of the pro-note. He also contended that the so calle4 pro-note was a money bond and the same being not duly stamped, it was inadmissible ~n evidence. The plaintiff filed th~ rejoinder refuting the contentions raised by the defendant and giving the, history and the details of the consideration. The rest of the cantentions are not material for our purpose. The learned trial Judge, on the evidence placed before him by the parties on both the sides, came to the conclusion that there was no consideration for the pro-note, and that the so-called pro-note being a money bond not duly stamped, it was inadmissible in evidence. He therefore, dismissed the plaintiffs suit with no. order as to costs. The plaintiff then went in appeal to the District Court. The learned District Judge found that the document on the basis of which the plaintiff sought to. recover the money was a pro-note and not a money bond, and that the plaintiff had proved both execution and consideration for the same. He, therefore, passed a decree for Rs. 4,500 with costs of the suit and future interest at 4 per cent. per annum. Being-aggrieved by this judgment and decree, the heirs and legal representatives of the original defendant have Come in second appeal to this Court. 3. The learned counsel Mr. Sathe, appearing on behalf of the appellants, first wanted to challenge the finding recorded by the learned District Judge on the question of execution and consideration by taking me through the evidence. However, both the findings being findings of facts based on evidence, and the learned counsel not being able to. 3. The learned counsel Mr. Sathe, appearing on behalf of the appellants, first wanted to challenge the finding recorded by the learned District Judge on the question of execution and consideration by taking me through the evidence. However, both the findings being findings of facts based on evidence, and the learned counsel not being able to. urge any question of law on the strength of which these finding of facts could be disturbed, I have no alternative but to accept them and hold that the appellants cannot challenge these findings of facts in second appeal. 4. The important question, however, that is agitated before me in this appeal is whether the document, exh. 1, on the strength of which the respondents filed the suit for the recovery of money, is a pro-note Dr a money bond. The agreed translation of the document, which is originally in Urdu, reads thus: "I, ShivaJal s/o Baoji Shah, r/o Tuljapur write this promissory note in favour of you Hirachand s/o Amichand, s/o Osmanabad, for Bs 4500/ I.G rupees four thousand five hundred I. G only being the agreed amount of an earlier promissory note, which is without interest and which I promise to pay to you on demand. Further there is a sep.\rate promissory note for Bs. 3300/- rupees three thousand and three hundred only, which has no connection with the sum or Rs. 4500/- I. G. for which this promissory is given. Miti Marghashirsh Vaidya 5, shake 1874, Date 6-12-52, in own handwriting. Witnesses. Sd/- Shivalal Raoji Shah, In own handwriting. Rangnath Krishnath Kakade. Shankar Sambha Nayagaonkar. Amirkhan Ajamkha. Sadashiv Madhav Mane." Now, the learned counsel Mr. Sathe has urged that the document being attested by witnesses and not being payable to order or bearer, is a band within the meaning of that word defined in section 2 (5) (b) of the Indian Stamp Act, inasmuch. as under this document the original defendant obliged himself to. pay money to the original plaintiff The learned counsel Mr. Sathe has urged that the document being attested by witnesses and not being payable to order or bearer, is a band within the meaning of that word defined in section 2 (5) (b) of the Indian Stamp Act, inasmuch. as under this document the original defendant obliged himself to. pay money to the original plaintiff The learned counsel Mr. Deshpande, appearing on behalf of the respondents, however has argued that though the document is an attested one, it is clearly pro-note, inasmuch as (I) it is in writing and signed by the maker, (2) it contains unconditional promise to pay a sum certain in money, only, and nothing more, (3) it is payable on demand, and (4) it is payable to a certain person, and thus satisfies all the requirements of section 4 of the Negotiable Instruments Act, 1881. 5. Before I proceed to discuss these rival contentions, it is necessary to refer to one fact and it is this that prior to the Amendment Act VIII of 1919, section 13 of the Negotiable Instruments Act stood thus: "A Negotiable instrument means a promissory note, bill of exchange or cheque expressed to be payable to a specified person or his order, or to the order of a specified therefore or to the bearer thereof, or to a specified person or the bearer thereof." Obviously, therefore, before 1919, every promissory note which fell under section 4 of the Negotiable Instruments Act, was not a negotiable instrument. Only those promissory notes which were expressed to be payable to a specified person or his order, or to the order of a specified person, or to the bearer thereof. or to a specified person or the bearer thereof, were negotiable instruments. Necessarily, therefore, every promissory note. though in writing containing an unconditional undertaking, signed by .the maker, to pay a certain sum of money only to a certain person, was not a negotiable instrument within the meaning of that expression used in section 13 of the Negotiable Instruments Act. as it stood before 1919. Necessarily, therefore, every promissory note. though in writing containing an unconditional undertaking, signed by .the maker, to pay a certain sum of money only to a certain person, was not a negotiable instrument within the meaning of that expression used in section 13 of the Negotiable Instruments Act. as it stood before 1919. After the amendment of 1919, however, the old section 13 was replaced by a new one and Explanation (i) to this new section 13 made every promissory note a negotiable instrument, whether it was expressed to be payable to order or was expressed to be payable to a particular person, provided it did not contain words prohibiting transfer or indicating an intention that it shall not be transferable. As regards the Indian Stamp Act \\hich was passed in 1899, long after the Negotiable Instruments Act, 1881, was passed, promissory note is defined (vide section 2 (22) as a promissory note as defined by the Negotiable Instruments Act, 1881. The second paragraph of the definition says that for the purposes of the Indian Stamp Act, promissory note also includes a note promising the payment of any sum of money out of any particular fund which mayor may not be available, or upon any condition or contingency which mayor may not be performed or happen. For the purposes of the Indian Stamp Act, 1899, therefore, not only every promissory note defined under section 4 of the Negotiable Instruments Act, 1881 was a promissory note, but in addition to that, certain other documents which fell in the second paragraph were also defined as promissory notes. It is, however, material to note that the definition of promissory note given in section 4 of the Negotiable Instruments Act, 1881, or the definition of promissory note given in section 2 (22) of toe Indian Stamp Act did not undergo any change even after section 13 of the Negotiable Instruments Act was amended by the amending Act VIII of 1919. The result, therefore is that even after the amendment of the Negotiable Instruments Act, 1881, by the amending Act VIII of 1919, every promissory note, which is a promissory note under section 4 of 1 he Negotiable Instruments Act- 1881, is also a promissory note for the purposed of the Indian Stamp Act in addition to that certain other documents, which fall under para 2 of section 2 (22) of the Indian Stamp Act, also continue to be the promissory notes under that Act. The amending Act VIII of 1919, so far as it is relevant here, effected a change only in respect of the negotiable nature of a promissory note for the purposes of the Negotiable Instruments Act, 1881, in that after the amendment all promissory notes falling under section.4 of the Negotiable Instruments Act, 1881, whether or not they contain the words such as order or bearer or any other term expressing the intention on the part of the maker to render them negotiable, are now negotiable instruments, unless they contain words. prohibiting transfer or indicating an intention that they shall not be transferable. But so far as the Indian Stamp Act, 1899, is concerned, the amendment does not affect it in any way. 6. Reverting to the rival contentions of the parties in respect of the document, exh. 1, it is not disputed before me that the document contains in writing an unconditional undertaking to pay a certain sum of money only to "" a certain person and it is signed by the maker. Ordinarily, therefore, it would come under the definition of the promissory note given in section 2(22) of the Indian Stamp Act. But in addition to this, the document is also attested by two witnesses and it is not payable to order or bearer. That being so, according to the learned counsel :Mr. Sathe, the document would come under section 2 (5) (b) of the Indian Stamp Act, and, therefore, it would be a bond. In other words, the learned counsel says that unless a pro-note ex facie shows that the money under it is made payable to order or bearer, it would be a bond if it IS attested, even though it contains an unconditional undertaking to pay certain sum of money to a certain person The argument of the learned counsel Mr. In other words, the learned counsel says that unless a pro-note ex facie shows that the money under it is made payable to order or bearer, it would be a bond if it IS attested, even though it contains an unconditional undertaking to pay certain sum of money to a certain person The argument of the learned counsel Mr. Deshpande, however, is that in view of the amendment of the Negotiable Instruments Act, 1881, by the amending Act VIII of1919, the document, exh. 1, becomes a negotiable instrument, and, therefore, even though it is attested and not made payable to order or bearer, it still continues to be a pro-note, under section 2 (22) of the Indian Slamp Act, and it would not come under section 2 (5) (b) of that Act. According to the learned counsel, the words "not payable to order or bearer" in section 2 (b) of the Indian Stamp Act, only show that the document should not be a negotiable instrument. In support of his argument, he has pointed out that before the amendment of 1919, section 13 of the Negotiable Instruments Act made only those pro-notes negotiable instruments which were made payable to order or bearer and, therefore, in order to show that the instrument coming under the definition of a bond as given in section 2 (5) (b) ought not to be a negotiable instrument, the words "not payable to order or bearer" were inserted in section 2 (5) (b) of the Indian Stamp Act. According to the learned counsel, therefore, the test after the amending Act of 1919 is the test of negotiability. 7. In support of his argument, the learned counsel Mr. Sathe has relied on a Full" Bench decision of the Madras High Court in Reference under Stamp Act, section 46.1 In that case, the instrument dated June23, 1880, which was a promissory note payable to order, was held to be a promissory note and not a bond although it was attested, while another instrument, which was not payable to bearer or order and was attested was held to be a bond. That was a case, however, under the old Stamp Act and not under the Indian Stamp Act, 1899. This Court also in a case under the Indian Stamp Act, 1899, took the same view in Venku v. Sitaram2. That was a case, however, under the old Stamp Act and not under the Indian Stamp Act, 1899. This Court also in a case under the Indian Stamp Act, 1899, took the same view in Venku v. Sitaram2. In that case the defendant had passed to the pl1intiff a document to the effect: "I have this day taken from you in cash Rs. 48/- (forty-eight). I have received this amount. Therefore, I shall repay this money without taking any objection, when you should demand". The document was attested by two Witnesses. It bore a one anna adhesive stamp. This Court held that since the document was attested and was not payable to order or bearer and the executants obliged himself to pay the money to another, it fell under section 2 (5 (b) of the Indian Stamp Act, 1899. Both these cases were decided before the Negotiable Instruments Act, 1881, was amended by the amending Act VIII of 1919. But even after the amendment of the Negotiable Instruments Act in 1919, some of the High Courts have taken the same view. The Calcutta High Court in Khetra Mohan Salta v. Jamini Kanta Dewah3 held that for the purposes of the Stamp Act the document as it appears on the face of it, has to be considered, and because Explanation (i) is introduced by the amending Act VIII of 1919 to section 18 of the Negotiable Instruments Act, 1881, it cannot be said that an instrument which on the face of it is not payable to order, is one made payable to order by virtue of the said Explanation and, therefore, it cannot fall under section 2 (5) (b) of the Indian Stamp Act. That was a case where the instruments were addressed to a particular person. Each of them contained an unconditional undertaking signed by the maker to pay on demand to the person in whose favour it was executed, a certain sum of money. Each of the instruments was attested by a number of witnesses. None of them was made payable to order or bearer expressly. Each of them contained an unconditional undertaking signed by the maker to pay on demand to the person in whose favour it was executed, a certain sum of money. Each of the instruments was attested by a number of witnesses. None of them was made payable to order or bearer expressly. The argument was that because the amending Act VIII of 919 introduced a change in section 13 of the Negotiable Instruments Act, 1881, such an instrument became a negotiable instrument and, therefore, though it was not expressly made payable to order or bearer, still it was an instrument payable to order or bearer, and. therefore, it did not fall under section 2 (5) (b) of the Indian Stamp Act. The Calcutta High Court repelled this argument and held that Explanation (i) introduced by Act VIII of 1919 to section 13 of the Negotiable Instruments Act, 1881, could not be read into the definition of a bond as contained in section 2 (5) (b) of the Indian Stamp Act. The Nagpur Judicial Commissioners Court, as it then was, in Rozario v Hariballabh4, also took the same view. That was also a case where the instrument, though a pro-note was not made payable to order or bearer and was also attested, and still the Nagpur Judicial Commissioners Court held that it was not a promissory note but a money bond falling under section 2 (5) (b) of the Indian Stamp Act, 1899. The Rajasthan High Court also in Bherulal v. Ghisulal5 held that the instrument in that case which was not payable to order or bearer and was also attested by a witness, was not a promissory note but a money bond under section 2 (5) (b) of the Indian Stamp Act, 1899. On the construction of the Instrument also in that case, that High Court found that the language showed that it was written for evidencing the debt obtained by the debtor Bherulal, the matter and the purpose for which the debt was incurred and then an express promise to pay up the debt within the time was given therein. The language quite clearly showed that the instrument was no~ meant to be executed as a negotiable instrument. The language quite clearly showed that the instrument was no~ meant to be executed as a negotiable instrument. The Patna High Court in Ram Narayan v. Ram Chandra6, has also taken the view that for the purposes of the Indian Stamp Act, an instrument has to be considered as it stands and if, on the terms there)f, the due under it is not payable to order or bearer and is attested by a witness, it is a bond and not a promissory note within the meaning of the Stamp Act. It also held that section 13 of the Negotiable Instruments Act, as amended in 1919, did not introduce any change in the definition of a promissory note as given in section 4 of that Act, though in effect, for the purposes of that Act, the scope of a document coming within the definition of promissory note was enlarged as being negotiable even in absence of express term~ as regards their negotiability, and so, did not, in any way, introduce any change or enlarge the scope of the expression promissory note as defined in section 2 (22) of the Stamp Act, which had borrowed the definition of promissory note from its definition in the Negotiable Instruments Act as laid down in section 4 of that Act. In that case, the two documents in question where described as hand notes payable on demand. They were attested by a pleader. There was nothing to show in those documents that the sums due were payable to order or bearer. The High Court, therefore, held that the documents in question having been attested by a witness, and there being nothing in them to show that the amounts covered by them were payable to order or to the bearer, came within the term bond as defined in section 2(5) (b) of the Stamp Act. The Andhra Pradesh High C0urt also in Bahadurrinisa v. Vasudev7 has held that in order to bring an instrument within clause (b) of section 2 (5) of the Stamp Act, the instrument must have been attested by a witness, and secondly the amount must not be made payable to order or bearer. If anyone of the two things is absent from an instrument, then section 2 (5) (b) would not be attracted. If anyone of the two things is absent from an instrument, then section 2 (5) (b) would not be attracted. In that case, however, the effect of amending Act VIII of 1919 on the definition of promissory note given in section 4 of the Negotiable Instruments Act or in section 2 (22) of the Indian Stamp Act was not considered. These decisions, therefore, support the argument advanced on behalf of the appellants by the learned counsel Mr. Sathe. 8. The learned counsel Mr. Deshpande, however, has relied upon Jagjivandas v. Gumanbhai8 In that case, the question was whether a particular instrument fell under section 2 (22) of the Indian Stamp Act. The High Court did not consider the question as to whether the instrument fell under section 2 (5) (b) of the Indian Stamp Act. While discussing the question whether or not the instrument fell under section 2 (21) of the Indian Stamp Act, it is observed that "promissory note" is a wider term which may include two kinds of promissory notes, namely, those which are not negotiable instruments and those which are. If the instrument satisfies the requirements of the definition in section 4, the instrument must be held to be a promissory note, quite irrespective of the fact whether it is a negotiable instrument or not, for the purposes of section 13 of the Negotiable Instruments Act. This decision, therefore, is of no assistance to the respondents. The most that if shows is this much only that in view of the amendment of the Negotiable Instruments Act, 1881, by the amending Act VIII of 1919, the instrument, exh. I, in this case became a negotiable instrument. But this does not necessarily mean that, therefore, it would not come under section 2 (5) (b) of the Indian Stamp Act, when admittedly exh. 1 is n it made payable to order or bearer and it is also attested. The learned counsel, however, has been able to lay his hands on one ruling which supports him. It is reported in Kadorilal v. Sukhlal9. There it is held that a document, essentially a promissory note but not containing a recital to be payable to order, awl which becomes negotiable by reason of section 13, Explanation (i) of the Negotiable Instruments Act, though attested by a witness, should be treated as a promissory note for the purposes of the Stamp Act also. There it is held that a document, essentially a promissory note but not containing a recital to be payable to order, awl which becomes negotiable by reason of section 13, Explanation (i) of the Negotiable Instruments Act, though attested by a witness, should be treated as a promissory note for the purposes of the Stamp Act also. In the first place, the document in that case was obviously an instrument made payable to order expressly and, therefore, it could not come under section 2 (5) (b) of the Indian Stamp Act. Secondly, para. 10 of the judgment at p. 8 of the Report shows that the learned Judges, with respect, have over-looked the fact that even under section 4 of the Negotiable Instruments Act, 1881, an instrument which contains simply a promise to pay on demand a certain sum to a certain person is promissory note, though there may be no words of negotiability such as "order" or "bearer". The· Explanation (i), therefore, not only prescribes that in the absence of prohibition all promissory notes are negotiable, but it also enlarges the scope of the promissory notes which were not negotiable before the amendment but which are now negotiable on account of this amendment he ruling also refers to Md. Akbar Khaia v Attar Singh10, to say that it is not necessary that the negotiability should be writ large on promissory not But with respect, I do not find anything in that decision to support that view. On the contrary, section 13 of the Negotiable Instrument Act, 1881, as it stood before the amendment of 1919, required that a promissory note in order that it should be negotiable should be expressed to be payable to a specified person or his order, or to the order of a specified person, or to the bearer thereof, or to a specified person or the bearer thereof. The ruling also observes that the Privy Council decision clearly indicates that the aid of section 13 of the Negotiable Instruments Act, 1881, can be taken even for the purpose of deciding whether the document is a promissory note or not for the purposes of the Stamp Act. Again, with respect, I cannot agree. The ruling also observes that the Privy Council decision clearly indicates that the aid of section 13 of the Negotiable Instruments Act, 1881, can be taken even for the purpose of deciding whether the document is a promissory note or not for the purposes of the Stamp Act. Again, with respect, I cannot agree. Their Lordships of the Privy Council referred to section 13 not because they wanted to decide whether the document in that case was a promissory note for the purposes of the Indian Stamp Act, 1899, but because they wanted to point out that the document in that case, though otherwise a promissory note within section 4- of the Negotiable Instruments Act, 1881, must also be negotiable for there appeared to be no words prohibiting transfer or indicating an intention that it should not be transferable. But ultimately their Lordships decided the point on the broad ground that that kind of document was not and could not be intended to be brought within a definition relating to documents which are to be negotiable instruments, because such documents came into existence for the purpose only of recording an agreement to pay money and nothing more, though they may state consideration. I may incidentally mention here that the document in that case was dated April 1, 1972, while the amending Act VIII of 1919 came into force in 1919. I am therefore, with respect, unable to agree with the view taken in the aforesaid decision of the Madhya Pradesh High Court. 9. I am of the view that the decisions relied upon by the learned counsel Mr. Sathe correctly by down the legal position and it is this that section 13 of the Negotiable Instruments Act, 1881, after its amendment by the amending Act VIII of 1919, does not introduce any change in the definition of promissory note given in section 4- of that Act or in the definition given in section 2 (22) of the Indian Stamp Act, 1899, or in the definition of bond given in section 2 (5) {b) of that Act. It only makes every promissory note coming under section 4- of the Negotiable Instruments Act a negotiable instrument for the purposes of that Act, unless it contains words prohibiting transferor indicating an intention that it shall not be transferable. It only makes every promissory note coming under section 4- of the Negotiable Instruments Act a negotiable instrument for the purposes of that Act, unless it contains words prohibiting transferor indicating an intention that it shall not be transferable. But if a promissory note falling under section 4- of the Nego1iable Instruments Act, 1881, and, therefore, under section 2 (22) of the Indian Stamp Act, 1899, is attested and not made payable to order or bearer, it would fall under section 2 (5) (b) of the Indian Stamp Act, 1899, and would, therefore, amount to bond for the purposes of that Act. For the purposes of the Indian Stamp Act, 1899, a document, as it appears on the face of it, has got to be considered. I, therefore, hold that the document, exh. 1, is a bond falling under section 2 (5) (b) of the Indian Stamp Act, 1899, and not a promissory note under section 2 (22) of that Act. 10. The difficulty, however, is that the document being admitted in evidence by the lower appellate Court rightly or wrongly, in view of the provisions of section 35 of the Bombay Stamp Act, 1958, this Court will have no alternative but to confirm the decree and grant a declaration under section 58 of the same Act. (Vide Devachand v. Hirachand Kamaraj11: Bhagwandas Totarom v. Chhaganlal Raichand12 Annamalai v. Veerappa13; Venkata Reddi v. Vitta Hussain14 and Bhupati Nath v. Basanta Kumari15.) I, therefore, pass the following order: The decree passed by the lower appellate Court is confirmed and the appeal is dismissed. It is hereby declared that in the view that the document, exh. 1, is a money-bond and not a pro-note, the amount of stamp payable on it is Rs. 67-8-0 O. S. and the penalty is Rs. 675 O. S. The intimation of the declaration should be sent to the Collector of Osmanabad District along with the copy of this judgment. The document, exh. 1, is hereby- impounded and it is directed that it should be sent to the Collector, Osmanabad, for further action. In the circumstances of this case, no order as to costs in this Court Order accordingly.