1. Pandit Gopi Nath Naik brought a suit against Chandi Prasad Naik, Bharat Basi Naik and Mt. Tapesra for the recovery of Rs. 26,327 on account of principal and interest on the basis of two promissory notes executed on 14th June 1931. One of them was executed by Chandi Prasad Naik defendant 1 and the other was executed by Bharat Basi Naik and Mt. Tapesra, defendants 2 and 3. Both were for Rs. 10,925 each. The suit has been decreed by the Court below against the three defendants in the following terms:
The suit is decreed with costs in terms of relief para. 1 of the plaint. Interest pending suit and future to run at the usual rate of 6 per cent, per annum. Defendant 1 shall be liable for the sum decreed to the extent of a half share out of it. For the remaining half defendants 2 and 3 shall be liable. Defendant 2, however, shall further be liable for the sum decreed against defendant 1 to the extent of his interest in the family property.
2. Against this decree Bharat Basi Naik and Mt. Tapesra, defendants 2 and 3, have filed the present appeal in this Court. The defence with which we are concerned in this appeal may now be stated. It is said that Bharat Basi Naik was a minor on the date of the promissory note dated 14th June 1931 and the promissory note executed by him was a nullity so far as he was concerned. It is further said that Mt. Tapesra was a pardanashin lady and it has not been proved that the promissory note was executed by her with an intelligent appreciation of facts. There were two brothers, Bhagwati Prasad Naik, the husband of Mt. Tapesra, and Chandi Prasad Naik, defendant 1. Chandi Prasad Naik has a son Bharat Basi Naik and there is some suggestion that Bharat Basi Naik was adopted by Mt. Tapesra. The Court below has found that Bharat Basi Naik could not have been adopted by Mt. Tapesra. Bharat Basi Naik had not only his sacred thread ceremony performed before the alleged adoption but he was also married at the time and the adoption would therefore be invalid, the parties being Brahmans. Moreover, the witnesses examined on the question of adoption and attempting to prove the same are worthless and no adoption could be held to be established on such evidence.
3. On 22nd March 1926 Bhagwati Prasad Naik and Chandi Prasad Naik executed a promissory note in favour of the plaintiff for Rs. 29,900. On 5th July 1928 they executed a sale deed in favour of certain persons and left a large sum of money, Rs. 11,000 odd, for payment to the plaintiff. Bhagwati Prasad Naik died some time in 1929 or 1930 and then there was a dispute in the mutation department. That was settled by means of a compromise on 10th April 1930 and it was agreed upon between Mt. Tapesra, Bharat Basi Naik, minor under the guardianship of Mt. Tapesra and Chandi Prasad Naik, that half the property should be recorded in the name of Chandi Prasad Naik and half in the name of Bharat Basi Naik under the guardianship of Mt. Tapesra.
4. A large portion remained due to the plaintiff on the basis of the promissory note of 1926 and on 14th June 1931 the plaintiff Chandi Prasad Naik and Mt. Tapesra came face to face and negotiations were conducted for the liquidation of the liability under the promissory note. The sum due on it at that time was over us. 21,000. It is not disputed before us by anybody that this was not the liability under the promissory note of 1926. The arrangement was that as half the property had been mutated in favour of Bharat Basi Naik the liability should also be split up. Two promissory notes were executed on that date, one by Chandi Prasad Naik for Rs. 10,915 and the other by Bharat Basi Naik and Mt. Tapesra for Rs. 10,925. It is upon the basis of these two promissory notes that the plaintiff Gopi Nath Naik has filed the present suit which has been decreed by the Court below, in the manner indicated in the beginning of our judgment. Chandi Prasad Naik has submitted to the decree of the trial Court and as we said in an earlier portion of the judgment the controversy between the parties is that whereas the plaintiff alleges that Bharat Basi Naik was not a minor at the date of the execution of the promissory note Bharat Basi Naik alleges that he was a minor. It is also said that Mt. Tapesra was a pardanashin lady and she did not understand the nature of the transaction. We have already disposed of the question of adoption and we shall now dispose of these two matters.
5. The Court below has come to the conclusion that Bharat Basi Naik was not a minor at the time of execution of the promissory note. This finding is vigorously attacked by learned Counsel for Bharat Basi Naik. He points out that a horoscope and a birth register were produced on behalf of the defendants and from these two documents it appeared that Bharat Basi Naik was born on 6th September 1915. The horoscope is not a document of very great evidentiary value but the birth register filed by the learned Counsel for the plaintiff is. The learned Judge of the Court below has not ignored these two documents but has discussed them. He says that there are these two documents and there are the entries in the khewats but the best evidence in the case has not been produced. The father of Bharat Basi Naik is Chandi Prasad Naik, but he has not come into the witness-box. He would have been a very important witness in the case. Shiam Behari is an old servant of the family. He does not say anything about the age of Bharat Basi Naik, nor does Ambika Prasad another witness produced on behalf of the defendants. Even Mt. Tapesra has not given conclusive evidence on the point. The school register has not been produced and the learned Judge of the Court below thought that in view of these deficiencies much reliance ought not to be placed on the birth register and the horoscope. Defendant 2 appeared before the Court below, and the learned Judge was of the opinion that in 1935 he was over 22. He also took into account the fact that by February 1935 defendant 2 had three children and that was not quite consistent with the theory that in 1935 defendant 2 was only 20. On the whole we find it very difficult to set aside the finding of minority recorded by the Court below.
6. The next question that we have got to decide is whether defendant 3 is a pardanashin lady and whether the document in question, namely the promissory note, was executed by her only in a mechanical manner or intelligently. Defendant 3, Mt. Tapesra is an educated lady. She looked after the affairs of Bharat Basi Naik after the compromise accounts were submitted to her and we have gone through her testimony as recorded on commission and we have come to the conclusion that she is an intelligent lady capable of protecting her interests. The promissory note is not a complicated document. All that she had to understand was that an earlier promissory note had been executed by her husband and as accounts stood the liability was to the extent of Rs. 21,000 odd and as mutation had been recorded half and half in favour of Bharat Basi Naik and Chandi Prasad Naik and as she was at the time of the compromise the guardian of Bharat Basi Naik the liability under the earlier promissory note had been divided and she was being asked to execute a promissory note for half the amount along with Bharat Basi Naik. Her brother Bal Bhadder was there and so was her dewar Chandi Prasad Naik. In these circumstances there is nothing which could engender suspicion in our minds and the Court below has rightly come to the conclusion that Mt. Tapesra executed the document after fully understanding the same. In view of what we have said above there is no force in this appeal and we dismiss the same with costs.