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Gangisetti Ramaya and anr. Vs. Kallika Peraya and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.411
AppellantGangisetti Ramaya and anr.
RespondentKallika Peraya and anr.
Cases ReferredHannooman Persaud Panday v. Musammat Babooee Munraj Koonweree
Excerpt:
hindu law - debts--son's liability for father's debts--mortgage-bond executed by father--suit against sons--recital in bond as to discharge of antecedent debts, whether legal evidence--presumption of discharge. - .....against them on the ground that it was not shown that the loan was contracted for discharging any antecedent debts of the father. there is a recital in the document of the purpose for which the loan was required, and that was the discharge of previous debts. the district judge makes an observation that the recital is not evidence as against defendants. he probably went too far in saying so, but we observe that he was not prepared to act on the recital even if it were legal evidence. he observes that it was not shown that the decree-holder whose debt is recited in the bond could not have been called and that the decree itself was not produced to show that it had been discharged. in effect, the judge says that the recital is not evidence, but, even if it were it is not sufficient to.....
Judgment:

1. The mortgage-bond was executed by the deceased father of the defendants. The suit has been dismissed as against them on the ground that it was not shown that the loan was contracted for discharging any antecedent debts of the father. There is a recital in the document of the purpose for which the loan was required, and that was the discharge of previous debts. The District Judge makes an observation that the recital is not evidence as against defendants. He probably went too far in saying so, but we observe that he was not prepared to act on the recital even if it were legal evidence. He observes that it was not shown that the decree-holder whose debt is recited in the bond could not have been called and that the decree itself was not produced to show that it had been discharged. In effect, the Judge says that the recital is not evidence, but, even if it were it is not sufficient to discharge the onus that lay on the plaintiff. We cannot agree with the learned Counsel for the appellant that the Judge was bound to draw a presumption from the recital that the bond was for the purpose of discharging antecedent debts. We do not think the observations of the Privy Council in Hannooman Persaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393: 18 W.R. 81 go to that extent. The District Judge was at liberty to attach such weight to the recital as he thought fit. It might have been open to him, in his discretion, to make a presumption in favour of the creditor. We dismiss the second appeal with costs.


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