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Gopal Das Vs. Goswami Banmali Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1925All85; 75Ind.Cas.1004
AppellantGopal Das
RespondentGoswami Banmali Lal and anr.
Excerpt:
limitation act (ix of 1908), section 19 - acknowledgment--'signing,' what amounts to. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the.....1. the suit out of which this appeal has sprung was brought by the plaintiff-appellant to recover a sum of rs. 16,990 and certain ornaments alleged to be worth rs. 8,000.2. the two defendants to the suit are two brothers, goswami banmali or banwari lal and goswami damodar lal. according to the allegations in the plaint these two defendants are members of a joint hindu family, the second defendant being the managing member. the plaintiff alleged in his plaint that he was the spiritual disciple (chela) of the defendant no. 1 while his wife is the disciple of the second defendant. the case for the plaintiff was that at various times he had advanced sums of money to those defendants and in particular to the second defendant. he also alleged that on the occasion of a gauna ceremony he had lent.....
Judgment:

1. The suit out of which this appeal has sprung was brought by the plaintiff-appellant to recover a sum of Rs. 16,990 and certain ornaments alleged to be worth Rs. 8,000.

2. The two defendants to the suit are two brothers, Goswami Banmali or Banwari Lal and Goswami Damodar Lal. According to the allegations in the plaint these two defendants are members of a joint Hindu family, the second defendant being the managing member. The plaintiff alleged in his plaint that he was the spiritual disciple (chela) of the defendant No. 1 while his wife is the disciple of the second defendant. The case for the plaintiff was that at various times he had advanced sums of money to those defendants and in particular to the second defendant. He also alleged that on the occasion of a gauna ceremony he had lent certain valuable ornaments and utensils to the defendants which they had not returned.

3. The first defendant denied ever having received any money from the plaintiff. The second defendant, while admitting that there had been money dealings between himself and the plaintiff did not admit that he had received from the plaintiff the sums which are specified in the plaint. He further denied that he had ever borrowed any ornaments or utensils from the plaintiff as alleged.

4. It is necessary to examine in some little detail the allegations in the plaint, for the important question which arises in the suit is the question of limitation.

5. The claim of the plaintiff may be divided into three parts. He first alleged in paragraph 3 of his plaint that, between the months of December, 1908, and December 1911, ho had lent to fehe defendants a sum of Rs. 4,112. His story was that he had, on the 16th December, 1911, received part-payment to the extent of Rs. 1,112 and that, therefore, in respect of the dealings of this period there was due to him a sum of Rs. 3,000.

6. The plaintiff next alleged that, on the 14th and 15th December, 1911, he bad raised a sum of Rs. 8,000 by way of mortgage and had advanced this money to the defendant No. 2.

7. Lastly, with respect to the ornaments, the case for the plaintiff was that these had been lent to the defendants for a gauna ceremony in or about the month of February, 1915.

8. This suit was not filed till the 29th October, 1918 and on the allegations made in the earlier paragraphs in the plaint it is dear that the suit for recovery both of the money and the ornaments would have been time-barred. However, in 'paragraph 10(A) of the plaint the plaintiff described certain documents upon which he relied for the purpose of showing that his claim was still within time.

9. The suit failed in the Court below. The learned Subordinate Judge appears not to have believed the plaintiff's story either as regards the advance of these monies or the loan of the ornaments. In any case, he was of opinion that the plaintiff had failed to prove by any satisfactory evidence that the claim, even if true, was still within limitation.

10. The plaintiff has now appealed and the findings of the Court below on all the points found against the plaintiff have been attacked here.

11. We proceed to deal, in the first instance, with the claim relating to the sum of Rs. 3,000.

12. We have already mentioned that in the 3rd paragraph of the plaint it was stated that certain loans had been made to the defendants between the months, December, 1908 and December, 1911.

13. The plaintiff alleged that he had no accounts to produce for the purpose of showing the various dates on which these advances had been made. In his evidence the plaintiff began by stating that the first sum of money which he advanced to the second defendant was sent in consequence of a letter, Exhibit 1, page 105, which bears a date corresponding to the 28th December, 1908. That letter was written from Naudip or Nadia where the second defendant is alleged to have been residing at the time. The plaintiff's story is that he borrowed the sum of Rs. 1,000 from a banker in Benares and sent the money by a messenger to the second defendant.

14. The plaintiff proceeds to state that at subsequent times, although no dates were specified, he advanced sums of Rs. 800, Rs. 300 and Rs. 200 to the second defendant. He winds up his statements on this part of the case by saying that in the month of December, 1911 an account was taken between the parties and a sum of Rs. 4,112 was found to be owing to the plaintiff.

15. It has been strongly pressed against the plaintiff that he has failed to produce his account-books in Court. The plaintiff's story is to the effect that, some time before these advances were made, he had given up keeping accounts, having separate from his brothers who were in business in Benares as money-lenders. We are not disposed to accept the statement of the plaintiff that no accounts were kept by him of the items advanced to the defendants, for there is evidence on the record which will indicate that in spite of a separation between himself and his brothers the plaintiff still carried on a money-lending business and, in such circumstances, it would be reasonable to expect that he kept some account of his money dealings. However, we have to deal with the case on the footing that no accounts have been produced and we have to see on what evidence the plaintiff relies for the purpose of showing that this money was advanced.

16. Four papers are relied on by the plaintiff for the purpose of showing that this money was due to him. In the first place, we have a document marked Exhibit 3 which is printed at page 121 of the record. This is a memorandum which is alleged to be in the handwriting of the second, defendant.

17. We may pause here to mention one fact which is to be taken into consideration in dealing with the various documents upon which the plaintiff relies for the purpose of saving limitation. It is the fact that none of the letters or memoranda upon which reliance is placed by the plaintiff bear the signature of the second defendant, Damodar Lal, that is to say, in none of these documents can we find the name of Damodar Lal.

18. It is claimed, however, that in his correspondence with his disciples this defendant is not in the habit of signing his name. The regular method of correspondence, it is said, consists in superscribing all communications with the words 'Sri Sri Har Sharnum' and there is evidence to show that this is a customary mode in which Gurus or spiritual preceptors address communications to their disciples. The defendant himself when examined on this point admitted (see page 72 of the record) that when he writes to his sewaks, meaning his disciples, he is not in the habit of affixing his signature. Another witness on this point is Gokul Chand who also deposes to the same effect, saying that spiritual preceptors do not sign their names when addressing letters to their disciples. The reason given by the plaintiff for this practice is that it would be derogatory for a person holding a high position like a guru to subscribe his name in a letter underneath the name of his disciple.

19. We are satisfied that this is a usual practice in communications of this kind and we hold, therefore, that any communication which is drawn up in this form, although it does not bear the actual name of the defendant No. 2 must nevertheless be treated as being signed by him. The question whether words such as those we have referred to inserted at the top of letters or other communications, can be treated as signatures, has been dealt with in a case reported in Gangadharrao Venkatesh v. Shidramapa Balapa Desai (1894) 18 Bom. 586 where it was held that the words 'guru samrath' written at the top of a letter addressed by 'preceptor' to his pupil constituted a signature for the purposes of Section 19 of the Limitation Act, We find, moreover, that a similar decision has been given in the Madras case which is to be found reported as Chidambaram Chetti v. Ramaswami Chettiar : AIR1915Mad506(2) . We may also refer in this connection to a somewhat similar case which is to be found in Sadasook Agarwal v. Baikunta Nath Basunia (1904) 31 Cal. 1043.

20. It is clear on all hands that these letters which bear the superscription were addressed by the second defendant either to the plaintiff or to the plaintiff's wife and that it was understood and was meant to be understood that these were communications proceeding from the second defendant who was their spiritual leader.

21. We hold, therefore, that, so far as these letters and communications arc concerned, any of them which are found to be in the handwriting of the second defendant and which bear this superscription must be treated as having been signed by the second defendant.

22. To return to Exhibit No. 3 this is a memorandum or slip which bears the heading 'Sri Sri Hari Sarnam.' According to the statement of the plaintiff this document is in the writing of defendant No. 2 although the latter has denied the fact.

23. For the purpose of proving, an acknowledgment, however, it appears to us that this document is of no value whatever.

24. We have already mentioned the fact that on the 14th of December, 1911, a mortgage was executed by the plaintiff in favour of one Makundi Lal for the purpose of borrowing a sum of Rs. 8,000.

25. In the endorsement made upon this mortgage at the time of registration particulars were entered regarding the mode in which money was paid so many sovereigns, so many notes and so much cash. The slip, Exhibit 3, merely repeats the details of these various items and there is nothing in the document more than an acknowledgment by the second defendant that he had received a sum of Rs. 8,000 from the plaintiff in the various denominations of sovereigns, notes and cash.

26. There is nothing in this document whatever to show an acknowledgment of an existing liability for Rs. 3,000 on this date and therefore, for the purpose of saving limitation in respect to the claim for Rs. 3,000 this document, as we have said, is of no avail. It may have some bearing upon the other question which, we shall have to consider later on, namely, whether this sum of Rs. 8,000 borrowed on mortgage in December, 1911, was, as a matter of fact, made over to the second defendant

27. To continue, regarding the claim for Rs. 3,000 the next document, upon which the plaintiff lays stress, is a document, Exhibit 4, which is printed at page 123 of the record. This document bears date of the 14th December, 1911 being the date upon which the mortgage was executed although at the bottom of the document, there is another date, Magh Badi 10th Sambat 1968, which would correspond to the 13th January, 1912.

28. According to the plaintiff's statement this document is in the writing of the defendant No. 2 and in connection with the claim for Rs. 3,000 he refers to one entry in this list which reads as follows:

Paid on account of Babuji's parole debt Rs. 1,112. (babuji ke hath udharke chukai.)

29. We are unable to spell out of this document any acknowledgment on the part of the second defendant (assuming that the document is in his handwriting) that on the date on which the memorandum was prepared he owed the plaintiff a sum of Rs. 3,000. The plaintiff tries to make this out by saying that an account having been taken, between the parties a sum of Rs. 4,112 was found due to him and that after deduction of this payment of Rs. 1,112 there was left a balance of Rs. 3,000.

30. That, however, is not stated in the document itself. Further it is important to consider the language of the entry in the document in question. To us it appears as it did to the Subordinate Judge also, that the entry does not import that the sum of Rs. 1,112 was being paid on account of and in reduction of a debt of a larger amount. The word used is 'chukai' which ordinarily signifies the complete satisfaction and discharge of a debt. In our opinion, therefore, the plaintiff can derive no assistance from the entry in this Exhibit 4 for the purpose of proving that this claim is within time.

31. We now come to another document which is marked Exhibit 12 and which is printed at page 103 of the record. This again bears the superscription 'Sri Sri Hari Samara' and it purports to have been prepared on a date corresponding to the 17th August, 1912. This document is perhaps the most important document in the case in connection with the claim of the plaintiff for recovery of the sums of money set out in the plaint. The document contains an entry indicating that a Bum of Rs. 3,000 was due to Gopal Das, the plaintiff, on account of a pre-existing debt. The defendant denied that this document was in his handwriting.

32. We have, therefore, to address ourselves to the question as to whether it has been proved that this document, as a matter of fact, was written by the defendant No. 2 The story of plaintiff regarding Exhibit 12 is this : At page 36 of the record Gopal Das states that the defendant wrote Exhibit 12 because he stood in need of more money after borrowing the sum of Rs. 8,000 which he took in the month of December, 1911. Gopal Das states that in order to convince him that more money was required the second defendant prepared this document and made out a list of his debts. He proceeds to say that a few months after this document was handed to him the second defendant asked him to return this slip. The plaintiff told the defendant that he could not find it and so the defendant wrote out a second slip which is marked Exhibit 13 and which is printed at page 101 of the record. This, too, is said to be a statement of debts which were owing by second defendant, a statement which he prepared in order to persuade the plaintiff to borrow some more money for his benefit.

33. The genuineness of both these documents is most strongly denied on behalf of the defendants and we have been pressed here in appeal to consider the matter and to give more attention to it than it received at the hands of the learned Subordinate Judge. We have on the record a number of documents written in Hindi which are now either proved or admitted to be in the writing of the defendant No. 2. One test, therefore, which could have been applied for the purpose of determining whether these Exhibits 12 and 13 are genuine documents was comparison of the writing in them with the writing contained in documents which the defendant No. 1 is proved to have written.

34. We have done our best to assist Counsel in this matter and we have made a careful examination and comparison of the different writings. One difficulty in our way is that most of the letters which are on the record are written in a careful way and obviously with due deliberation whereas the slip Exhibit 12 appears to be a document which was drawn up more or less in a hurry and in a very brief form. There are certain abbreviations used in the entries which indicate that the memorandum was prepared in an off-hand manner.

35. It is thus very difficult to institute any real comparison between the writings. Mr. Upadhia who has dealt with this part of the case on behalf of the appellants has drawn our attention to certain similarities in the formation of letters and in the general character of the writings. We must say that after giving this part of the case our best consideration we have not been able to satisfy ourselves that it is established that this document Exhibit 12 and the other document Exhibit 13 are in the writing of the defendant No. 2.

36. We have to notice here that there was a statement made, by a witness named Gokul Chand to whom both these documents were shown. He professes to be familiar with the hand-writing of the second defendant and he stated that he was able to recognize the writing in both Exhibits 12 and 13 as the writing of the second defendant. Prom certain questions put to this witnes3 in cross-examination it seems that he and the second defendant have not been on good terms and we do not think it would be safe to rely on Gokul Chand's statement that these two documents are in the writing of Damodar Lai. Further we are bound to say that the story of the plaintiff in the witness box as to how this document Exhibit 12 came into existence is not very convincing. It is difficult to understand why if the defendant was anxious to have more money raised for his benefit, he should prepare this slip and make it over to the plaintiff and we are still more suspicious of the story told about the second document, Exhibit 13, which come into existence in the manner we have already indicated.

37. Dr. Sen has argued before us that, in view of certain questions which were put to the plaintiff in cross-examination, the defendants really admitted that these documents were in the writing of Damodar Lal. The plaintiff was asked if it were not a fact that he had discovered these two documents in certain books of account belonging to the second defendant which had come into his possession at the time of the execution of a decree. Pie denied that this was the manner in which he had come to have these documents in his possession. We cannot agree that there is anything in these questions asked in cross-examination to justify our holding that the defendants have in any way admitted that these documents were, as a matter of fact, in their account-books and were found by the plaintiff in the manner suggested.

38. This brings us to the end of the case so far as it relates to the claim for Rs. 3,000. Our finding is that there is no proof of any acknowledgment which would save limitation as regards this claim for Rs. 3,000 so that, even if letters of later dates, of which, there are many on the record, can be taken to contain any admission regarding a liability for the sum just mentioned they would be of no avail inasmuch as it cannot be shown that those admissions were made at a time while limitation was still running.

39. We agree, therefore, with the first Court that the plaintiff has failed to prove that his claim as regards this1 item is within time.

40. We come now to the claim in respect of the sum of Rs. 8,000. We have already adverted to the fact that this money was borrowed after the execution of a mortgage-deed in the month of December 1911. The document itself contains a recital to the effect that Gopal Das was borrowing this money for the purpose of advancing a loan to Damodar Lal and also to meet household expenses.

41. The words in the document are 'ba gharaz dene qarz apne guru Damodar Lal.'

42. There was a good deal of argument apparently in the Court below as to the interpretation of those words but we have no doubt whatever that what they mean is that Gopal Das was raising money on mortgage for the purpose of making a loan to Damodar Lal. Damodar Lal himself attested this document and there is evidence which shows, in our opinion, that he knew that the recital was in the document and in spite of his denial we do not believe him when he says that he got none of the money which was raised by this mortgage.

43. Letters which were proved to have been written by the second defendant show to us unmistakeably that Damodar Lal got at least a portion of this money advanced to him. We refer in particular to one letter, Exhibit 24, which is to be found at page 147 of the record. That letter was written on the 14th October, 1915 and contains the following passage:

As regards Makundi Lal's money also it is matter of days only when every account will be cleared by the grace of Sriji.

44. Reading this letter with other letters which were written at or about the same time there can in our opinion, be no doubt whatever that Damodar Lal knew very well that he was liable to the plaintiff for the sum or a portion of the sum which had been borrowed on mortgage.

45. When the second defendant was in the witness box he was called upon to explain these statements. The only answer that he could give wag that he knew that the plaintiff had borrowed money on mortgage from Makundi Lal. He said that the plaintiff was pressing him for help to raise loan in order to pay off Makundi Lal and so he says that the statement regarding Makundi Lal's debt contained in the letter, Exhibit 24, relates to certain exertions which he was making for the purpose of enabling the plaintiff to raise a fresh loan to pay off Makundi Lal. We have no doubt whatever that this is a false statement and indeed it has been conceded before us that, in view of the evidence and particularly the evidence in the letters, it is impossible to accept the story told by Damodar Lal in the witness-box.

46. The learned Subordinate Judge was of opinion that none of this money had come into the hands of the second defendant, but we do not agree with him.

47. However, the question still remains whether the plaintiff has been able to show that his claim is within limitation for, unless it is so, our finding to the effect that the second defendant had this money or a portion of it will be of no assistance to the plaintiff.

48. We start with the fact, that, according to the plaintiff's own case, this sum of Rs. 8,000 was advanced on the 14th December, 1911. The suit was filed on the 29th October, 1918.

49. We have already referred to the document, Exhibit 24, at page 147, and have held that it certainly contains an acknowledgment of liability on the part of Damodar Lal for the debt which was due by the plaintiff to Makundi Lal.

50. The date of that letter, however, is the 14th October, 1915 and this acknowledgment will, therefore, not save limitation.

51. We have, therefore, to consider the further question as to whether the plaintiff has been able to produce any further evidence for the purpose of showing that an-acknowledgment of the liability was made at any time within three years commencing from the 14th December 1911.

52. Here again, the plaintiff has to fall back upon two documents which have already been dismissed by us, namely, Exhibit 12 and Exhibit 13. We have already dealt fully with the evidence regarding these documents and have discussed their history as given by the plaintiff in the witness-box. We have expressed our opinion that it is not proved that either of these documents is in the writing of the second defendant and so we need not dwell upon this matter any further. It is sufficient for us to say that we find that the plaintiff has failed to show that his claim regarding this sum of Rs. 8,000 was within limitation at the time the suit was filed.

53. We now come to the third part of the case, namely, that relating to the ornaments. What is the plaintiff's case in this respect? His story is that ornaments and utensils of an approximate value of Rs. 8,000 were lent to the defendants in the month of Phagan Sambat 1971, corresponding to the month of February, 1915. The occasion of the lending of these ornaments was the gauna ceremony of the sons of the defendant. The story of the plaintiff was that these articles were taken on loan and that they were never returned. We have already mentioned that both the defendants denied ever having borrowed the articles in question.

54. The second defendant, who was the only one of the defendants who went into the witness-box deposed that the story of the loan of the ornaments was not true.

55. In the course of the trial a small account book or bahi was produced containing the entries which are printed at page 79 of the record. This document is proved to be in the writing of the second defendant. The account-book was in possession of the plaintiff and was produced by him in Court; The defendant suggested in cross-examination that the plaintiff had got possession of it by unlawful means.

56. There can be no doubt that this book contains a list of certain ornaments which were in the possession of the second defendant at the time when his son and his nephew were married.

57. The particular portion of the entry in this book upon which the plaintiff relies is the list which is written underneath the words 'bahuji kitarafki.' The plaintiff's story is that the word bahuji refers to his (the plaintiffs') wife. The defendant, on the other hand, denies this and says that the word bahuji refers to the wife of a brother of his named Sham Lal. We are bound to say at once that we do not believe this statement. We have no doubt whatever that on the occasion of the marriage of those two boys the defendant No. 2 did not borrow ornaments and utensils from the plaintiff.

58. That, however, does not by any means settle the case, for the plaintiff has admitted that after the marriage (oiah) was over these ornaments or at any rate a number of them were returned. The case he makes out in his plaint is that they were lent out on a second occasion, that is to say, on the occasion of the gauna ceremony.

59. It must be confessed that the evidence of the plaintiff on this part of the case is by no means satisfactory and it is proved that he has made at various times conflicting statements. la the trial of the present case he certainly endeavoured to make out that the whole of the ornaments which were mentioned in the lists attached to the plaint were lent for the second time on the occasion of the gauna ceremony.

60. The plaintiff, however, was confronted with a certain statement which he made in the Criminal Court in the month of November, 1916. We may mention bore that, before the pre3ant suit was filed, two oases in the Criminal Court had been brought by Gopal Das against Damodur Lal. The statement to which we are about to refer was made in the course of the trial of one of them.

61. At page 165 of our record there is printed Exhibit J. which is certified copy of the deposition of Gopal Das in the Court of a First Class Magistrate. At page 166 he makes certain statements regarding the loan of ornaments to Damodar Lal. In his cross-examination he stated as follows:

I lent him ornaments worth about Rs. 5,000.

They are as follows: Rs.Bhuj set with diamonds worth 2,000Buttons set with diamond worth 1,000Chain set with emerald and rubies 2,000

62. When he was making this statement on the 17th November, 1916, Damodar Lal at first stated that ho had lent these ornaments four years previously. He then Corrected himself and stated that the ornaments had been lent on two occasions. He said that they had at first been lent on the occasion of the marriage of the two boys that they had been returned to him and that they were again lent on the occasion of the gauna.

63. It is obvious, therefore, that this statement does not fit in with the statement made by the plaintiff in the trial in this case. There he mentioned three items of ornaments only which had been lent and which had not been returned.

64. The value of those ornaments he gave as Rs. 5,000. Here he is referring to a larger list of ornaments the value of which he states to be Rs. 8,000.

65. We have satisfied ourselves by an examination of the evidence on the record that, although the claim of the plaintiff in respect of these ornaments is not established, he has nevertheless succeeded in showing that the ornaments to which we have just referred and which the witness mentioned in the course of his deposition in the Criminal Court wore, as a matter of fact, lent to the defendant No. 2.

66. We have in this connection to refer to a letter which seems to us to really, sot the matter at rest. That latter is Exhibit 25, which is printed at page 155 of the record. We may say that there are one or two other letters referred to in which reference is made to certain ornaments but this letter which we are now discussing is the only one of which it can be said definitely, that it contains a reference to specific articles such as those which are mentioned by the plaintiff in his plaint.

67. We extract the following passage from this letter, Exhibit 25, which was sent on the 30th October, 1915 by the second defendant to the plaintiff's wife:

The other ornaments are at Kashi which will be redeemed but the Delhi ornaments, namely, twe armlets (bhuj - do) one chain and eight buttons are not traceable. So you can take the adequate amount in respect of the same.

68. This, in our opinion, is a distinct admission of liability on the part of the second defendant for the value of the ornaments so mentioned and we have no doubt whatever that to this extent the story of the plaintiff is true and that he lent to the defendants the two armlets, the chain and the eight buttons which are said to have been set with diamonds.

69. We wish to remark here that the translation of this letter, Exhibit 25, as it appears on the printed record, is altogether, misleading and erroneous and that it has been necessary for us to have the version corrected in order to enable us to decide the case properly.

70. We have it, therefore, that this document of 30th October, 1915, contains admission of liability in respect to these articles. The suit was brought on the 29th October, 1918, which was within three years from the date of the acknowledgment. The only question that remains, therefore, is whether these articles were lent to the second defendant within three years of the 30th October, 1915.

71. The story of the defendant regarding the marriage of his son and his nephew was to the following effect : - (see page 65) 'The marriage of my nephew (brother's son) took place in the month of Phagan Sambat 1968, and the marriage of my son took place in the month of Ghiat Sambat 1969. The gauna ceremony of both of them took place in the following winter that is, within a year.'

72. We gather from this statement of the defendant, therefore, that the gauna ceremony of these two boys took place between the month of October, 1912 and the month of March, 1913. The plaintiff, on the other hand, has assigned the month of February 1915 as the date of the gauna.

73. We are in this matter disposed to accept the evidence of the plaintiff in preference to that of the defendant but in one case it appears to us that the gauna ceremony must have taken place sometime within three years preceding the 30th October 1915, the date on which this acknowledgment was given.

74. It need not be supposed-that we are willing to attach much credit to the statement of Domodar Lal. We have not the slightest doubt that he perjured himself freely in the witness-box. We have not the slightest doubt that these ornaments were borrowed and conclusive proof of this is to be found in the letter Exhibit 25.

75. It appears to us therefore, that this portion of the claim, that is to say, the claim relating to the two armlets, the chain and the eight diamond buttons is within limitation, time being saved by the acknowledgment contained in the letter of 30th October, 1915.

76. The statement of the plaintiff is, that these particular ornaments were worth the sum of Rs. 5,000 and there is nothing to contradict this. In the circumstances we consider that the valuation which, is put by the plaintiff on these articles ought to be accepted.

77. There are one or two other matters which perhaps call for some consideration but which really do not affect the decision of the case. The plaintiff alleged in his plaint that a payment by way of interest of a sum of Rs. 175 had been made to him in the month of June, 1915 and he relied on that payment for the purpose of extending limitation.

78. We need only say regarding this part of the case that the plaintiff has failed to establish that any such pay merit was made to him by way of interest. What does appear from the evidence is that a certain sum of money was sent by the second defendant to the plaintiff's father-in-law for the purpose of discharging a certain debt. The father-in-law made over the money to the plaintiff who thereupon appropriated a sum of Rs. 175 and applied it in the discharge of a debt which was due from himself. There can be no possible plea that this payment was made by the defendant by way of interest.

79. Another plea was taken by the plaintiff for the purpose of extending limitation. He alleged that by arrangement with the defendant No. 2 he occupied a certain house of the defendants on the under-standing that the rent was to be Rs. 10 a month and that this rent was to be applied in reduction of the interest owing on the debt to the plaintiff by the defendant No. 2. This part of the case has also failed for we find no reliable evidence of any such agreement between the parties.

80. We now come to the end of the case, and our finding, therefore is that the appeal ought to be allowed to the extent which we have already indicated. We, therefore, accept the appeal and, setting aside the decree of the Court below, direct that a decree be given to the plaintiff against both defendants for the return of the three ornaments which are specified in list B attached to the plaint in case the ornaments are not returned the plaintiff will be entitled to a decree for Rs. 5,000 (rupees five thousand) with proportionate costs in the Court below and in this Court including fees on the higher scale. We fix a period of one month from the date of this Court's decree for the return of the ornaments to the plaintiff; in default of their return within the time allowed the plaintiff will be entitled to execute the decree for Rs. 5,000.

81. As regards the defendant's costs we think it right to say that, in view of his conduct, he is not entitled to any costs either here or in the Court below, and we order accordingly.

82. We wish to note in conclusion that the task of trying this appeal has been rendered unusually difficult on account of the gross inaccuracy of the translations which appear in the printed book. This is a matter which we propose to bring to the notice of the learned Chief Justice by means of a separate note.


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