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Bappu Raju and ors. Vs. Kondu Raja and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.324
AppellantBappu Raju and ors.
RespondentKondu Raja and ors.
Cases Referred and Ramachandra Dutt v. Jogeswar Narain Deo
Excerpt:
evidence act (i of 1872), section 32 - proof of age--state merit by a person before a public officer as to his son's age--admissibility. - .....witness no. 2, narendra-raja, and there can be no doubt, on the 25th july 1897 k. v. alagiri raja paid to narendra raja rs 1,128-40. exhibit b is a receipt for that payment. admittedly on the date of exhibit b, that is the 25th july 1897, this sum of rs. 1,128-4-0 was less than the amount due by rs. 404 and odd and the defense witness no. 2 was not asked any question suggesting that this balance of rs. 404 and odd was foregone by him. but much reliance is placed by the learned subordinate judge on the wording of exhibit b, which is a tamil document and the passage relied on as translated reads thus:-- amount paid by you to me agreeably to the reservation made in my name--by t. k. kumarasawami raja in the deed of usufructuary mortgage taken by you from him on the 23rd of april 1897.....
Judgment:

1. The suit in which this appeal arises was instituted by the plaintiff to have it declared that a deed of sale executed by his mother, a Hindu widow, on the 7th of March 1901, is not binding on him and to recover possession of the properties conveyed under the deed to the first defendant. On the date of the sale, the plaintiff was a minor being about 17 years old and Seethiammal, his mother, purported to execute the deed as his guardian. The consideration for the sale is recited as Rs. 9,000 out of which Rs. 260 is stated to have been paid in order to meet demands for rents and costs of certain litigation and the rest of the money is stated to have been paid towards the discharge of certain debts incurred by the husband of Seethiammal and father of the plaintiff, called Kumarasawmi Rajah, who had died in May 1900. The debts specified in the deed of sale consisted of Rs. 1,000 due on otti to one Thangammal, Rs. 2,150 due on a mortgage bond to one Nandaya Kone, Rs. 790 due on another mortgage bond to one Narandarajah, Rs. 2,500 due on an otti to one Alagaraju, and Rs. 2,100 due on a mortgage bond to one Muthian Chetty and another item of Rs. 200, which with a sum of Rs. 260 paid in cash amount of Rs. 9,000.

2. There were several questions raised before the Subordinate Judge and he has given a decree to the plaintiff for recovery of possession of the properties covered by the deed of sale on condition that the plaintiff do pay to the first defendant Rs. 3,698-10-0 and the amount which may be found to have been due to Muthian Chetty on the 7th of March 1901, under two bonds marked Exhibits Nos. VIII and IX in this case. The defendants have preferred this appeal and the decree of the lower Court is impeached on two grounds, firstly, that the finding that there was no necessity for the sale and that the entire consideration of Rs. 9,000 did not pass is wrong, and, secondly, that the suit ought to have been dismissed as being barred by limitation. The plaintiff also preferred a memorandum of objections objecting to the findings of the lower Court that the price of Rs. 9,000 mentioned in the deed of sale was adequate and that Rs. 1,224 was in fact paid to discharge two of the bonds held by Muthian Chetty. The learned pleader for the plaintiff, however, decided not to press his objections. As regards the second point urged in appeal, the learned Vakil for the appellants, having regard to the statement contained in Exhibit A, as to the plaintiff's age, very properly did not press the plea, as we were of opinion that the statement in that document was admissible in evidence to prove the age of the plaintiffs. The statement was made by the plaintiff's father before a Government Tahsildar on the 12th of May 1893, and we have no doubt, as held in Oriental Government Security Life Assurance Co., Ld. v. Narasimhachari 25 M. 183 : 11 M.L.J. 379 and Ramachandra Dutt v. Jogeswar Narain Deo 20 C. 758 that it is relevant to prove the age of the plaintiff under Section 32 of the Evidence Act.

3. With reference to the question of necessity we shall first of all consider whether the finding of the Subordinate Judge with respect to the items of consideration which he held were not proved can be sustained. We shall take first the sum of Rs. 976 which is described as part of item No 6. This sum is alleged to have been paid to Muthian Chetty already mentioned in satisfaction of certain debts due to him by the estate. It appears that the father of the plaintiff executed six bonds in favour of this Chetty, each of them being for Rs. 500 and the case of the first defendant is that he paid the sum of Rs. 2,100 to the Chetty which went towards the complete discharge of two of these bonds, namely, Exhibits VIII and IX and partial discharge of two other bonds, copies of which are marked. Exhibits XXVI and XXVII. The plaintiff disputed this payment altogether and his evidence is that all these four bonds had been paid off by the plaintiff's father during his life-time. The Subordinate Judge has found in favour of the defendants that the money due under Exhibits VIII and IX was paid by the defendants who produced these bonds bearing proper endorsements of the payment. The question now to be considered is with reference to the payment of the balance, i.e., Rs. 976 in respect of these two other bonds. It is common ground that the amounts due thereunder have been paid and nothing is due to the Chetty on these bonds. The bonds are no longer with the Chetty and it is the case of the first defendant that he paid Rs. 976 towards partial discharge of what was due under those bonds and the balance must have been afterwards paid off by the plaintiff. It is further alleged by the first defendant that endorsement of thepayment was made on these bonds and that these bonds must be either with the plaintiff, or with one Chinnayya Raja, to whom the plaintiff subsequently sold certain properties of the value of Rs. 15,000 on the 20th July 1905. The defendants' witness No. 7 who is the accountant of Muthian Chetty has proved the payment of this Rs. 976 and has produced his accounts which bear out his statement and also show that the originals of Exhibits XXVI and XXVII were returned to the plaintiff. The learned Subordinate Judge distrusted these accounts on two grounds that they were produced at a late stage of the case and that they are on cadjan leaves. As regards the latter reason, the mere fact that accounts are on cadjan leaves is not a sufficient ground for distrusting them though their probative value is ordinarily much less than of accounts kept in the regular form and as regards the fact that they were produced at a late stage of the case, the Subordinate Judge has failed to notice that the delay was not imputable to the defendants. They appear to have taken every step from the commencement of the case to have the accounts produced and it was not until they obtained proclamation for sale of the property of the master of defendants' witness No. 7 because of default in producing the accounts that he a6 last produced these accounts. It also appears that this witness is a relation of the plaintiff's witness No. 3 who apparently is an old and faithful friend of the plaintiff's family. Besides if the defendants' witness No. 7 was minded to fabricate accounts in order to help the plaintiff's case, he could easily have done so at a very early stage of the case. There is also other evidence in support of the payment and all this evidence, taken along with the fact that the originals of Exhibits XXVI and XXVII have been discharged, shifts the burden on the plaintiff to show that they were discharged otherwise than as shown by the defendants' evidence. The plaintiff has adduced evidence that those bonds were discharged by the plaintiff's father himself. This case, in our opinion, is clearly false. It is amply proved that the plaintiff's father at the time of his death was in extremely embarrassed circumstances and was unable even to pay the interest due on the bonds executed by him. Exhibit XIX, which is a bond executed by the plaintiff himself in favor of this Muthian Chettiar on the 2nd February 1903, mentions that the money on these and some other bonds was outstanding on that date. It will be remembered in this connection that the debts due under the two bonds in question were only partially discharged by the first defendant so that the recital in Exhibit XIX would be consistent with the defendant's case while it is clearly inconsistent with the plaintiff's case on this point. In fact the Jearned Vakil for the plaintiff has not attempted to support the plaintiff's allegations in this respect. His argument is that the defendant must prove this payment and we think the defendant has amply discharged that burden.

4. The next item which is allowed is the sum of Its. 790 which was due on a mortgage bond (Exhibit III) executed by the plaintiff's father in favor of Narendra Raja Narendra Raja has been examined on behalf of the defense and he admits the receipt of the sum in discharge of his bond from the plaintiff. The bond itself is produced by the defendant and it hears endorsement of the payment, Exhibit III (a). There is also other evidence that of the defense witness No. 12 who attested the endorsement and of the first defendant himself, The plaintiff's case seems to be that Exhibit III was completely discharged by his father, Exhibit III was executed on the 19th January 1894, for Rs. 1,000, it bore compound interest at 13 per cent, and on the 23rd April 1897 the plaintiff's father executed a mortgage in favor of one K. V. Alagiri Raja for Rs. 5,000. Exhibit XXIX in which it was provided that out of the sum of Rs. 1,100 was to be paid to the defense witness No. 2, Narendra-raja, and there can be no doubt, on the 25th July 1897 K. V. Alagiri Raja paid to Narendra Raja Rs 1,128-40. Exhibit B is a receipt for that payment. Admittedly on the date of Exhibit B, that is the 25th July 1897, this sum of Rs. 1,128-4-0 was less than the amount due by Rs. 404 and odd and the defense witness No. 2 was not asked any question suggesting that this balance of Rs. 404 and odd was foregone by him. But much reliance is placed by the learned Subordinate Judge on the wording of Exhibit B, which is a Tamil document and the passage relied on as translated reads thus:-- Amount paid by you to me agreeably to the reservation made in my name--by T. K. Kumarasawami Raja in the deed of usufructuary mortgage taken by you from him on the 23rd of April 1897 is Rs. 1,123-7-8, being the amount of principal and interest settled in full satisfaction of all claims upon taking account. I have received this sum.' The Subordinate Judge seems to think that the words 'full satisfaction' show that the defendant under Exhibit III was completely discharged but the amount due under the bond was as pointed out more and there being in fact nothing to show that the creditor agreed to give up the balance, we think the true construction is as given by Narendra Raja himself and the defence witness No. 12 who attested the endorsement on behalf of the plaintiff's mother, namely, that the words 'full satisfaction 'in Exhibit B meant that the undertaking of Alagiri Raja to pay Rs. 1,100 to Narendra Raja was fully carried out and not that Exhibit III was completely discharged by the payment made by Alagiri Raja. The bond remained with Narendra Raja and there is no endorsement of satisfaction entered on the bond, Narendra Raja having given a separate receipt for the amount he received to Alagiri Raja. The Subordinate Judge also seems to think that under Exhibit III the balance, which remained due on the date of Exhibit B, would, taken with interest, not amount to Rs. 790 but would be Rs. 140, less but not a single question was put on this point to the defence witness No. 2, who would have been in the best position to explain how the calculation was made. Further the learned Vakil for the appellants states that the calculation made by the Subordinate Judge is wrong, he having proceeded on the basis that simple interest was chargeable, while if compound interest be calculated, the sum due on the date of Exhibit III (a) would be Rs. 790 in round figures. However that may be, we do not think that a point like this can have any significance in the absence of any examination of Narendra Raja with reference to it. We also find that Exhibit XXI, the written statement filed by the plaintiff's mother on the 13th of December 1900 in the Suit No. 6.37 of 1900, it is stated that the sum of Rs. 300 approximately was still due to the defence witness No. 2. The Subordinate Judge thinks that this might refer to another item of debt which was due to this witness but that item is separately mentioned in the schedule. The plaintiff examined his mother as his witness but did not ask her a single question about this transaction. As regards this item also, we find that the defendants amply proved his case.

5. We now come to the item of Rs. 2,150, which is alleged to have been paid to Nandaya Kone. Nandaya Kone was not examined by either party but the defendant produced a bond Exhibit IV, which bears the endorsement of receipt of this sum in the hand of Nandaya Kone, Exhibit IV (a). The receipt is dated the 10th March 1901, and the payment is spoken to by the defendant himself and defence witness No. 12. The receipt purports to be signed among others by one Rakku Thevan who according to the evidence managed the plaintiff's affairs at the date of the suit but the plaintiff had not examined this man or his mother to rebut the case of the defendant. The learned Subordinate Judge has come to the conclusion that the payment of Rs. 2,150 has not been proved. But we are constrained to hold that his conclusion is entirely wrong and, is based on suspicion in disregard, without adequate reason, of the evidence on the point. He says, for instance, that in comparing the signature of Rakku Thevan with this signature on some other document the signature of Rakku Thevan on Exhibit IV (a) seems to him to be a forgery. But there is absolutely no evidence to support as such a finding. It is in fact a mere surmise the Subordinate Judge himself puts in. Then in dealing with the evidence regarding the payment of Rs. 2,150, he is much influenced by certain other circumstances which he thinks the defendant ought to have explained. These circumstances relate to what occurred with reference to Exhibit Ji, a promissory-note executed by Sivanankona, the son of Nandaya Kone in favour of the plaintiff's father on the 4th. April 1895, for a sum of Rs. 1,200, alleged to have been borrowed by Nandaya Kone on that date from the plaintiff's father. Exhibit IV, the bond in favour of Nandaya Kone, was executed by the plaintiffs father on the 28th May 1896. Exhibit Ji is produced by the defendant and it bears an endorsement copied by the plaintiff's mother to the effect that Exhibit Ji had been executed by her husband not because Nandaya Kone actually borrowed any money from her husband, but because there was delay in payment of the sum which Nandaya Kone agreed to pay to the plaintiff's father on a usufructuary mortgage executed in his favour by the plaintiff's father, Exhibit (K). The endorsement goes on to mention that the transaction fell through and the mortgage deed was returned to the plaintiff's father but as the promissory-note Exhibit J was mislaid at the time, it could not be returned then to Nandaya Kone. There was an interval of nearly a year between the dates of Exhibits Ji and IV, Exhibit K, dated the 28th March 1895, that is, a few days before the date of Exhibit Ji, is the mortgage bond and is produced by the defendants. The Subordinate Judge himself notices that the amount mentioned in the two documents Exhibits Ji and IV do not quite agree, the rates of interest differ, the sum under Exhibit Ji is payable on demand while the amount of Exhibit IV is payable in instalments; the debt under Exhibit Ji is unsecured and that under Exhibit IV is a secured debt and there is no reason suggested why the plaintiff's father if he was entitled to receive Rs. 1,200 bearing interest at 12 percent, should borrow Rs. 1,190 from his debtor or mortgage his property agreeing to pay a higher rate of interest. As to why the promissory-note was not returned to Nandaya Kone, we find no difficulty in accepting the reason given by Seethiammal in the endorsement on that document which, in our opinion, gives a correct account of the transaction to which Exhibits Ji and K relate. We, therefore, find that the payment of the sum of Rs. 2,150 has also been satisfactorily proved by the defendant. There remains a small sum of Rs. 260 and it is enough to say with respect to it that we do not find sufficient reason to distrust the evidence of the defendant showing that this amount was paid and that it was required for payment of tirwa and to meet the expenses of the fami6. The next question is whether there was necessity for the sale of the property covered by Exhibit I. It appears that the estate of Kumaraswami Raja was encumbered and most of the properties were usufructuarily mortgaged, and the rest was mortgaged under hypothecation bonds. In Exhibit XXI, the written statement filed by the plaintiff's mother in a suit for maintenance instituted by the plaintiff's step-mother and sister, the debts of the former class are stated to be about Rs. 16,000 and of the latter class as amounting to Rs. 5,000 and it is also stated that the properties which were in the possession of the plaintiff's mother fetched an annual gross income of Rs. 500 which would leave a sum of only Rs. 200 a year as available to the family. The property of which the plaintiff's mother had possession consisted of about 125 acres of dry land and 29 acres of wet land and even these were encumbered. It is quite likely that the income of the property other than that in the possession of usufructuary mortgagees has been minimised in Exhibit XXI, but making a full allowance for any such under-statement, the income was certainly not sufficient to meet any portion of the interest payable on the hypothecation bonds after meeting the necessary household expenses. The bonds all bore compound interest and the necessary consequence of that would be that unless some properties were sold, very little could be saved. The learned Subordinate Judge, instead of taking the general circumstances of the family into account in dealing with the question of necessity, has taken each item of consideration which went to discharge a particular debt by itself and then asks himself whether there was actual demand on the part of such creditor for payment. That, we think, is not the proper way to look at the question. There cannot be the least doubt in the facts of the case that there was considerable pressure on the estate and unless steps were promptly taken by raising money by the sale of a good portion of the properties, the entire estate was in danger of being lost. The plaintiff himself when he came of age had to sell some of the properties not sold by Exhibit I in order to discharge the remaining debts. As a consequence of the sale to the first defendant, the encumbrances on nearly 70 acres of land were discharged and the plaintiff obtained possession of 37 acres. We may mention in this connection that the conduct of the plaintiff himself is hardly consistent with the bona fides of his present claim. Until very late, he did not think of questioning the validity of this transaction and not until after the defendant had discharged the prior encumbrances on the property and saved it from the adverse claim of one Rangammal, who instituted a suit in 1902 to recover his property impleading therein as defendants both the plaintiff and the first defendant in this suit. The plaintiff took no steps to contest the claim of Rangammal, leaving it to the defendant to bear the entire burden of the defence. We think the present claim of the plaintiff is unfounded and we, therefore, allow the appeal. The suit will be dismissed with costs both in this Court and in the lower Court.

6. The memorandum of objections is dismissed with costs.


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