KASTURCHAND JIWAJI Vs. MANEKCHAND DEVCHAND

JUDGEMENT

(1.) THIS appeal arises out of a suit to recover Rs. 1,005 due on a khata for Rs. 1,000 dated October 17, 1931, followed by another khata for Rs. 1,175 dated September 24, 1934. The suit was filed on September 20, 1937. The defence was that the khatas had not been passed for any cash consideration but for past debts found due on accounts, that the plaintiff used to take similar khatas from time to time, that as one of such previous khatas passed in 1929 was taken after the debt had become time-barred, the khata in suit must be treated as without consideration and that the claim was time-barred.

(2.) THE trial Court held that the defendant did not prove that he got no consideration for the transaction in suit evidenced by the khata of 1931 and that the suit transaction was not for balance for past transaction as alleged by defendant No.1 and that the claim was not time-barred. THE plaintiff was therefore given a decree for the amount claimed with future interest and costs.

(3.) MR. Coyajee argues that this finding is fatal to the plaintiff's claim which is based on the allegation that the consideration of the khatas in suit was cash and that the plaintiff should not be allowed to make out a new case that if it was not cash he should be given a decree on the basis that its consideration was past debt. Such a contention was negatived in the case of Hukumchand v. Hiralal cited above, where the question related to a deed of sale in which the consideration was described to be Rs. 100 in ready cash received and the evidence showed that the consideration was an old bond for Rs. 63-12-0 and Rs. 36-4-0 in cash, and it was held that there was no real variance between the statement in the deed and the evidence as to consideration. Melvill J. observed (p. 160) : ...it is, no doubt, customary in this country, when a bond is given wholly Off partially in consideration of an existing debt, to describe the consideration as being 'ready money received'.