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Nath Mal Das Vs. Dalip Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.401
AppellantNath Mal Das
RespondentDalip Singh and ors.
Excerpt:
hindu law - mortgage by father--son's liability--interest--mortgagee to prove necessity of borrowing money at exorbitant rate of interest--burden of proof. - .....seems to us that if the jaw is as laid down by the majority of the court in the case of chandradeo singh v. mata prasad 31 a. 176 : 1 ind. cas. 479 : 6 a.l.j. 263 this appeal must be dismissed on the ground that there was no necessity to undertake the payment of interest at such a high rate as 37 1/2 per cent, per annum. in the case of nand ram v. bhupal singh 8 a.l.j. 1294 : 13 ind. cas. 5 it was held, following the decision of the majority of the court in the case reported as chandradeo singh v. mata prasad 31 a. 176 : 1 ind. cas. 479 : 6 a.l.j. 263 that it lies on the lender to prove that there was necessity not only for borrowing money but for borrowing it at an exorbitant rate of interest. even if the law is as laid down by the minority of the judges in the case reported as.....
Judgment:

1. This was a suit by the appellant upon a bond dated March the 12th, 1889, executed by the respondent Khub Singh and by Khiali Singh and Dalip Singh who are represented by respondents Nos. 2 and 3. The bond states that the executants have borrowed Rs. 20 from the appellant and that they have agreed to pay that sum on demand with interest at Rs. 3-2 per cent, per mensem i.e. 37 1/2 per cent, per annum, and in case of default of payment of interest to pay compound interest at the same rate calculated with half yearly rests. According to the terms of the bond there was due to the appellant when this suit was instituted no less than Rs. 23,047. The appellant abandoned Rs. 17, 547 feeling, no doubt, that no Court would award him that sum and has claimed Rs. 5,500. The Court below has given the appellant a decree for the principal sums Rs. 20 with interest at the rate of Rs. 30 per cent, per annum. The appellant contends that he is entitled to he whole sum claimed. He points cut that the Court below has held that out of the principal sum Rs. 7 is an antecedent debt, and the remainder Rs. 13 was borrowed for legal necessity and also that it is not suggested that the executants were over-reached in any way or were compelled to execute the bond by undue influence. I seems to us that if the Jaw is as laid down by the majority of the Court in the case of Chandradeo Singh v. Mata Prasad 31 A. 176 : 1 Ind. Cas. 479 : 6 A.L.J. 263 this appeal must be dismissed on the ground that there was no necessity to undertake the payment of interest at such a high rate as 37 1/2 per cent, per annum. In the case of Nand Ram v. Bhupal Singh 8 A.L.J. 1294 : 13 Ind. Cas. 5 it was held, following the decision of the majority of the Court in the case reported as Chandradeo Singh v. Mata Prasad 31 A. 176 : 1 Ind. Cas. 479 : 6 A.L.J. 263 that it lies on the lender to prove that there was necessity not only for borrowing money but for borrowing it at an exorbitant rate of interest. Even if the law is as laid down by the minority of the Judges in the case reported as Chandradeo Singh v. Mata Prasad 31 A. 176 : 1 Ind. Cas. 479 : 6 A.L.J. 263 the result will be the same for, according to the finding of the Court below, the security given by the executants of the bond was ample, and there was no justification whatever for the executant's promise to pay the exorbitant rate of interest stated in the bond. It is impossible to hold that sons in a Hindu family are bound to pay any fancy rate of interest which their father may choose to promise to pay in a transaction of this kind. We think that the Court below is right. We dismiss this appeal with costs including in this Court fees on the higher scale.


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