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Talakchand Kasturchand Vs. Bhau Maruti Giranje - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1936Bom286
AppellantTalakchand Kasturchand
RespondentBhau Maruti Giranje
Excerpt:
.....different from..........feeling that under the dekkhan agriculturists' relief act it is for the plaintiff in such cases to prove consideration. that is not so. there is nothing in the act which throws the burden of proving consideration upon the plaintiff. what the act says is that the court shall satisfy itself on certain matters, including consideration; so that in all such cases the correct frame of the issue would be 'what was the consideration?' with the burden thrown neither on the plaintiff nor on the defendant. now, in the present case, if the burden is not thrown upon the plaintiff, it seems to me that it would be very difficult for any court to come to a conclusion that the consideration was something other than rs. 2,000. we have in the first place the admitted fact that the dealings between the.....
Judgment:

Macklin, J.

1. This action was instituted by the plaintiff upon a mortgage executed in his favour by the defendant for a sum of Rs. 2,000. Both the trial Court and the lower appellate Court dismissed the suit on the ground that the consideration was not proved. The plaintiff comes in second appeal. According to the plaintiff, the history of the transactions was that one Namdeo was a debtor of Waive, who owed Rs. 27,000 to the plaintiff. The defendant bought the sugar-cane crop of Namdeo; but instead of paying Namdeo direct he undertook the liability of paying Namdeo's debt to Waive, and in order to pay off that debt by Namdeo to Waive he went to the plaintiff and executed the mortgage in suit, as the result of which the plaintiff gave Waive a credit of Rs. 2,000 on account of what was owing from Waive to the plaintiff, and Waive at the same time gave the defendant a credit of Rs. 2,000 against the liability which the defendant had accepted to Waive on behalf of Namdeo. The deed itself begins in these words:

We have to pay our dues to the shop of. Maruti Vithoba Waive. You have taken havala for the payment of those dues, which amount to Rs. 2,000. I shall pay interest at the rate of one per cent per month on Rs. 2,000.

2. And then follow the details of the property mortgaged. There is the Sub-Registrar's endorsement as follows:

After this document, which was written in my presence, was read out to Maruti Bahiru, and Bhau Maruti Giranje in such audible tone as would enable them to hear, they have this day put their signatures thereupon in my presence.

3.The reasons which have led both the Courts to a finding against the plaintiff on the question of consideration is that they think that the plaintiff was bound to prove the transaction between the defendant and Namdeo and subsequently between the defendant and Waive, and that the plaintiff has failed to prove this. But the ordinary rule of law is that the executant of a document of this kind has to prove failure of consideration if he wishes to escape liability under the document, not that the person in whose favour the document is executed has to prove that there was consideration. There is a wide-spread feeling that under the Dekkhan Agriculturists' Relief Act it is for the plaintiff in such cases to prove consideration. That is not so. There is nothing in the Act which throws the burden of proving consideration upon the plaintiff. What the Act says is that the Court shall satisfy itself on certain matters, including consideration; so that in all such cases the correct frame of the issue would be 'what was the consideration?' with the burden thrown neither on the plaintiff nor on the defendant. Now, in the present case, if the burden is not thrown upon the plaintiff, it seems to me that it would be very difficult for any Court to come to a conclusion that the consideration was something other than Rs. 2,000. We have in the first place the admitted fact that the dealings between the plaintiff and the defendant during the past eight or nine years have amounted to about Rs. 90,000, and the defendant himself says that at this moment the plaintiff owes him about Rupees 25,000.

4. Thus on the defendant's own showing the defendant, though technically an agriculturist, is a man of large dealings. He is also literate; and when he says at the beginning of a solemn document that his dues to the Waive shop are Rs. 2,000, and that the plaintiff has undertaken to pay those dues amounting to that sum, and when he reaffirms the admission contained in the document itself by signing the document before the Sub-Registrar after the document has been read out to him, then in my opinion it requires strong evidence to justify a Court in holding that the consideration was something different from Rs. 2,000. From the accounts we find that Walve's liability to the plaintiff was reduced by Rs. 2,000 and the defendant's liability to Waive, assuming that it existed, was reduced by Rs. 2,000, and also the liability of Namdeo to Waive was reduced by the defendant's acceptance of the liability. There is no need to suppose that the accounts are incorrect, and there is evidence to show that at any rate Walve's accounts are regularly maintained. It is not as if those accounts were the only basis of the defen-dant's liability. He has signed a solemn document in which he makes certain admissions, and I do not know why he should be absolved from liability. I cannot see how it was for the plaintiff to be asked to prove transactions with which he himself had no concern whatever namely the transactions between the defendant and Namdeo. In my opinion both the lower Courts have erred in treating this question of consideration as if it were a matter to be proved by the plaintiff and in particular in requiring the plaintiff to go into the details of transactions with which he himself had no concern. I think therefore that their findings of facts are vitiated by an error of law which is serious enough to justify me in interfering.

5. I allow the appeal and direct a decree to issue for the amount claimed by the plaintiff with costs throughout. I leave discretion to the trial Court to pass any orders under Section 15-B, Dekkhan Agriculturists' Relief Act, in connexion with this decree that it thinks just as to future interest, instalments, and the method of recovery in the event of non-pavement.


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