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Kondan Mard Damu and anr. Vs. Indarchand Bacharaj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1921)ILR45Bom323
AppellantKondan Mard Damu and anr.
Respondentindarchand Bacharaj
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 13 - accounts--no data showing exact amount of principal sum--court can form reasonable estimate of the amount from the amount of consideration stated in the deed. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - as he sold again to an agriculturist, clearly defendant no......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 no. 5 and the heirs of defendant no. 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 nos. 1 to 4 were agriculturists. they sold to defendant no. 5 who was not an agriculturist. defendant no. 5 sold to defendant no. 6 deceased who was an.....
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 No. 1 denied ail knowledge of the mortgage, and said that he was a purchaser of the land. Defendant No. 6 said that he was a purchaser from defendant No. 5, and that defendant No. 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 No. 5 and the heirs of defendant No. 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 Nos. 1 to 4 were agriculturists. They sold to defendant No. 5 who was not an agriculturist. Defendant No. 5 sold to defendant No. 6 deceased who was an agriculturist. It is quite possible had defendant No. 5 not sold the equity of redemption, he could not claim, the advantages of the Dekkhan Agriculturists' Relief Act. As he sold again to an agriculturist, clearly defendant No. 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' Relief Act was not in force in Khandesh, and the creditors 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 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.

4. 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. I 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 (1894) 19 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 pro visions 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 seems 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.

5. I agree. My experience is that in most cases under the Dekkhan Agriculturists' Belief Act some guess work has to be done in drawing up an account under Section 13 of the Dekkhani 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 stated 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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