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Kondan Damu Vs. Indarchand Bacharaj - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 752 of 1919
Judge
Reported inAIR1921Bom393; (1920)22BOMLR1299
AppellantKondan Damu
Respondentindarchand Bacharaj
DispositionAppeal allowed
Excerpt:
.....for rs. 600 passed in 1905, the court took accounts of the transaction under section 13 of the dekkhan agriculturists' relief act 1879, and traced cash advances long before 1899 in which year the act was extended to the district. eventually the court held that the amount due under the mortgage was rs. 600. the lower appellate court reversed the decree on the round that there was no clear evidence to determine the amounts of principal and interest. on second appeal:- ;restoring the decree of the trial court, that it was not intended by the framers of the uekkhan agriculturists' relief act, 1879, that, in a case where the mortgage wag admitted, the plaintiff should lose every thing because he could not go back far enough to a period before the act was in force to distinguish what was..........debt. the mortgage was proved. but what was the principal consideration was not proved. the learned judge came to the conclusion that rs. 600 was due and passed a decree for that amount against defendant 5 and the heirs of defendant 6.2. the 5th defendant appealed. the decree of the trial court was reversed, because the learned judge was of opinion that there ought to be sufficient data before the court to enable it to determine how much of the claim was principal and how much was interest, and in the absence of such data mere guess work would not be permitted.3. the position is somewhat curious because defendants 1 to 4 were agriculturists. they sold to defendant 5 who was not an agriculturist. defendant 5 sold to defendant 6 deceased who was an agriculturist. it is quite.....
Judgment:

Norman Macleod, Kt. C.J.

1. The plaintiff' sued to redeem a mortgage bond passed by the first four defendants on the 6th February 1905 for Rs. 600. The mortgage was admitted by the first four defendants. But the 5th defendant who had purchased the equity of redemption from defendant 1 denied all knowledge of the mortgage, and said that he was a purchaser of the land. Defendant 6 said that he was a purchaser from defendant 5, and that defendant 5 ought to pay the mortgage debt. The mortgage was proved. But what was the principal consideration was not proved. The learned Judge came to the conclusion that Rs. 600 was due and passed a decree for that amount against defendant 5 and the heirs of defendant 6.

2. The 5th defendant appealed. The decree of the trial Court was reversed, because the learned Judge was of opinion that there ought to be sufficient data before the Court to enable it to determine how much of the claim was principal and how much was interest, and in the absence of such data mere guess work would not be permitted.

3. The position is somewhat curious because defendants 1 to 4 were agriculturists. They sold to defendant 5 who was not an agriculturist. Defendant 5 sold to defendant 6 deceased who was an agriculturist. It is quite possible had defendant 5 not gold the equity of redemption, he could not claim the advantages of the Dekkhan Agriculturists' Belief Act. As he sold again to an agriculturist, clearly defendant; 6 can take advantage of the Act. The only difficulty is to decide whether the learned trial Judge was right in allowing Rs. 600 to the plaintiff, or whether the learned appellate Judge, was right in allowing nothing because he said it was impossible to take any account as required by the Dekkhan Agriculturists' Relief Act. Now the learned trial Judge dealing with the previous transactions of the mortgagor and mortgagee said: 'It is said that cash advances began long before 1899 when the Dekkhan Agriculturists I Belief Act was not in force in Khandesh, and the creditors I did not know the utility of evidence to prove cash advance. The fact that past bonds have been produced by the defendants goes to show how little plaintiffs and their uncle I then knew the- importance of past documents to prove 'cash advance. I refuse to believe that Rs. 960 were for principal. It is not known how much was for principal and how much for interest in bonds for Rs. 800 and Rs. 160,. I do not wish to penalise the plaintiffs by striking off the suit altogether as the circumstances of the case are peculiar. The Court has to deal with transactions by a creditor admittedly an agriculturist and the transactions commenced long before the Dekkhan Act came into force in this District. 1 allow Rs. 600 to the plaintiff.' In my opinion that is a very reasonable judgment considering the peculiar circumstances of the case. It certainly would not be equitable, nor I do think it was ever intended by the framers of the Act, that in a case of this sort when the mortgage is admitted that the plaintiff should lose everything because he cannot go back far enough to a period before the Act was in force to distinguish what is principal and what is interest. The decision in Dhondi v. Lakshman I.L.R. (1894) Bom. 553 was relied upon. But there the Court did not dismiss the claim entirely, but said that the parties could have recourse to arbitration under the provisions of Section 15. Therefore the appeal was remanded. That section has been repealed. Therefore it is impossible to say that the Court would have made in that case, in the absence of an arbitration clause, a decree dismissing the whole of the plaintiff's claim. It is quite possible on the facts of that case that the Court would have found some way out of the difficulty to prevent injustice being done. It seams far more reasonable to come to the conclusion that the learned Joint Subordinate Judge, who has great experience in these matters, when dealing with the transactions between the parties came to a very fair and reasonable decision that Rs. 600 should be allowed to the plaintiff. The appeal is allowed and the decree of the trial Court restored. The appellants to get costs of the appeal.

Fawcett, J.

4. I agree. My experience is that in most cases under the Dekkhan Agriculturists' Relief Act some guess work has to be done in drawing upon account under Section 13 of the Dekkhan Agriculturists' Relief Act; and if (in the absence of data showing exactly how much principal has been received) the Court forms a reasonable estimate from the amount of consideration staged in the bond as to the probable amount of actual principal, I can see no legal objection to that estimate being accepted and acted on.


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