RAMAN MENON Vs. THUPPAN NAMBOODIRIPAD

JUDGEMENT

(1.) This Second Appeal, arises out of a suit to enforce payment of dues under an adima charth, executed by the plaintiffs illom in favour of the tarwad of defendants 1 to 6 who are the appellants. The question that was agitated before the Courts below and argued in this Second Appeal was, whether the primary contract between the parties was, that defendants 1 to 6 and others should deliver the customary dues in kind or should pay their commuted value at the market rate. The adima charth itself is not in evidence, and the Courts below, had to decide the question, having regard to the conduct of the parties and the attendant circumstances in the case and had come to the conclusion, that the plaintiff is entitled to recover the value of the customary dues at the market rates prevailing from time to time.

(2.) The plaintiff relied upon the terms of the partition deed, Ext. A, in the tarwad of defendants 1 to 6 in which, while apportioning the liability for customary dues as between the various members, mention was made in the concerned schedules, only of the commodities and not of their commuted value for payment. This is no doubt a valuable piece of evidence in favour of the plaintiff. As against this, the learned counsel for defendants 1 to 6 has relied upon certain circumstances.

(3.) Exts. D, E and F are the thandapers of the plaintiffs illom for the years 1089, 1119 and 1121 and they evidence the amounts of the demands by plaintiffs illom in those years. Ext. D of the year 1089 shows, that the commutation rate for cocoanuts was about five pies per cocoanut. A commutation rate for cadjans was also given. In Ext. IV plaint in a suit instituted by the plaintiff to enforce payment of dues from the year 1094 till 1107, the plaintiff claimed commuted value of customary dues only at the same rates as in Ext. D and when the plaintiff was called upon to explain how he happened to claim at the above rates, he made a statement, Ext. V, which indicated, that he was adopting the commutation rate. In the present plaint, which relates to the dues for a number of years before & after 1119, the dues up to the year 1119 were claimed only at the above rate while after the year 1119 the prevailing market rates from time to time were adopted for commutation. Pw. 2, the karyastha of the plaintiff, when asked about this stated that the claim up to the year 1119), was computed on the basis of the old agreement (]gb \nÝbw that is, at the rate of Rs. 6 Ps. 2, while after the year 1119, the claim was determined on the basis of the market rates as ordered by the plaintiffs illom. This suggests, that there has been a variation in the nature of the claim made by the plaintiff from the year 1119. It was not stated by Pw. 2, that the rates adopted till the year 1119, corresponded to the market rates prevailing till then. It is improbable, that the same rate continued for a large number of years. From all this, it is abundantly clear, that the plaintiff had been claiming only the old commutation rate as seen in Ext. D till the year 1119 and the change was introduced only in that year. Accordingly, it is seen, that different rates are quoted in Exts. E and F, the thandapers of the years 1119 and 1121. In the light of the conduct of the plaintiff, as disclosed by Exts IV and V, and the present plaint, and as explained by Pw. 2, the admission, if any, in Ext. A cannot be considered to prevail, because the burden of proof on this point is on the plaintiff. In the case, Ummathu v. Ali alias Bava Haji ( 1960 KLT 1240 ) the terms of the document were available for construction. That is not the case here, where the question at issue has to be decided on the available evidence and on the materials on record. I am of the view, that the plaintiff has not sustained the onus of proving, that the defendants 1 to 6 are under a liability to pay the market value of the commodities from time to time. The Courts below have approached this question also as one of law, which is not quite justified. They have not adverted to Exts. IV and V. I therefore come to the conclusion, that including michavarom Rs. 0-1-7, revenue Rs. 2-4-8, cocoanuts Rs. 0-14-2 and cadjans Rs 0-3-6, the liability of defendants 1 to 6 in respect of A schedule properties has to be fixed at Rs. 3-as. 7-ps. 11 per annum.