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2007 DIGILAW 495 (KER)

John Paul v. Soman

2007-08-07

PIUS C.KURIAKOSE

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Judgment :- Pius C. Kuriakose, J. Whether the document produced as Ext.P1 is an agreement or a bond is the question which arises in this Writ Petition. Whether subscription of his signature to Ext.P1 by the scribe will amount to attestation for the purpose of S.2(a) of the Kerala Stamp Act is an incidental question. 2. Under Ext.P2 order, the learned Munsiff construed Ext.P1 as an agreement and found that the stamp duty paid on the same under Art.5(c) of the Schedule to the Kerala Stamp Act, 1959 is proper. The defendant who is aggrieved has filed this Writ Petition under Art.227. 3. I have gone through Ext.P1. Ext.P1 is styled as an agreement and it is recorded therein that on the same day of its execution, the sum of Rs.25,000/- mentioned therein was received by the petitioner from the respondent. Ext.P1 records an undertaking that the amount so received will be repaid within a stipulated period together with interest. 4. Heard Sri. V.B. Premachandran, learned counsel for the petitioner and Sri. Liji J. Vadakkedom, learned counsel for the respondent. 5. Sri. Premachandran would invite my attention to the definition of bond given under S.2(a) of the Kerala Stamp Act and submit that Ext.P1 being a document whereby the petitioner has obliged himself to pay the money can be construed only as a bond. The amount is paid on the same day, submitted counsel. 6. Sri. Liji J. Vadakkedom per contra would submit that Ext.P1 does not disclose that payment of money is simultaneous with its execution. Ext.P1 only acknowledges payment of money made on the same day at an earlier point of time. The learned counsel further submitted that nobody has attested execution of Ext.P1 and at any rate Ext.P1 cannot be a bond. Counsel relied on the judgment of the Supreme Court in Abdul Jabbar v. Venkata Sastri (AIR 1969 SC 1147) in that context. 7. I find that it is relying on the judgment of this Court in Mathai Mathew v. Thampi (1989 (1) KLT 138) that the learned Munsiff construed Ext.P1 as an agreement. I do not find any infirmity in the view taken by the learned Munsiff since it is not possible to say from Ext.P1 that the liability is created by virtue of Ext.P1 only. There is another good reason as to why Ext.P1 cannot be construed as a bond at all. I do not find any infirmity in the view taken by the learned Munsiff since it is not possible to say from Ext.P1 that the liability is created by virtue of Ext.P1 only. There is another good reason as to why Ext.P1 cannot be construed as a bond at all. The definition of the term "bond" given under S.2(a) of the Kerala Stamp Act is an inclusive definition which reads as follows:- "2. Definitions--In this Act, unless the context otherwise requires,— (a) "bond" includes-- (i) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;" Obviously, Ext.P1 does not come under sub-clause (i) or sub-clause (iii) of Clause (a) of S.2. The argument of the learned counsel for the petitioner is also that Ext.P1 comes within sub-clause (ii) of Clause (a). Ext.P1 is styled as an agreement, the first party to which is the petitioner herein and the second party is the respondent. Execution of Ext.P1 becomes complete only when both parties subscribe their signature to the same. One T.C. Issac, scribe of Ext.P1 has also put his signature to Ext.P1, describing himself as Malayalam. The question is whether Sri. T.C. Issac is an attesting witness to Ext.P1. The attestation contemplated under S.2(a)(ii) of the Act is attestation of the execution. By looking at the document itself, it is not difficult to find that the second party to Ext.P1 has subscribed his signature to Ext.P1 only after Sri. T.C. Issac has signed Ext.P1 as Malayalam. The word “attest” means: to bear witness, to testify, to authenticate by signing as a witness etc. There is nothing at all in Ext.P1 to indicate that Sri. T.C. Issac put his signature on Ext.P1 animo attestandi, i.e., for the purpose of attesting that he has seen the executant sign or for certifying that he has received from the executant a personal acknowledgment regarding his signature. There is nothing at all in Ext.P1 to indicate that Sri. T.C. Issac put his signature on Ext.P1 animo attestandi, i.e., for the purpose of attesting that he has seen the executant sign or for certifying that he has received from the executant a personal acknowledgment regarding his signature. Probabilities are that Malayalam put his signature on the document only for certifying that the handwriting in which the document is written belongs to him. Sri. T.C. Issac therefore cannot be an attesting witness for the purpose of S.2(a)(ii). The above view has the support of the judgment of the Supreme Court in Abdul Jabbar's case (supra). The challenge against Ext.P2 fails and the Writ Petition will stand dismissed. No costs.