GOVINDLAL BHIKULAL MAHESHWARI Vs. FIRM THAKURDAS BHALLABHADAS

JUDGEMENT

(1.) THIS is an appeal which was originally filed by the plaintiff against the judgment and decree of the joint Civil Judge. Senior Division, Nagpur, dismissing his suit for recovery of Rs. 35,281. 78p. from the defendant no. 1 with interest at 6 per cent. Per annum. Admittedly, the defendant No. 1 had executed a chithi purporting to be a deposit receipt for Rs. 51,000/- 0n 22-10-1956. This chithi was originally executed in the name of one Balmukund who, according to the plaintiff, was the manager of the joint Hindu family consisting of himself and Balmunkund. The defendant No. 2 is the son of Balmukund who dies sometime in February 1957, and the defendant No. 3 is the widow of deceased Balmukund. The defendants Nos. 4 and 5 are the daughters of deceased Balmukund. The defendants Nos 4 and 5 are the daughters of deceased Balmukund. On 19-1-1957, according to the plaintiff, the defendant No. 1paid Rs. 20,000/- towards principal and Rs. 717/3/0 being the entire amount of interest due and executed a fresh chithi Ex. 41/7 for Rupees 31,000/- in the name of Balmukund. This transaction was renewed again by Ex. 41/14 which is a chithi executed by the defendant no. 1 on 17-4-1957 for Rupees 31,500/- in the name of plaintiff Bhikulal and defendant No. 2 Madan Mohan. Thereafter, the defendant No. 1 again renewed the chithis first by executing a chithi on 13-8-1957 for Rs. 32,000\- and then on 10-2-1957 for Rs. 32,500/- Both these were also executed in the name of Bhikulal and Madan Mohan.

(2.) NOW, the plaintiff's case is that on 5-4-1958 he sent Ex. 41/7 dated 9-4-1958 to the defendant No. 1 and he had also sent Rs. 12/8/0 by Money order with a request to the defendant No. 1 that he should execute a chithi for Rs. 33,000/- because inclusive of interest the dues came to Rs. 32,987/8/0. According to the plaintiff, he had sent Ex. 41/7 with an endorsement of discharge, but though the defendant No. 1 received the letter and the chithi on 7-4-1958 and also received the money Order on 9-4-1958, he neither sent any reply nor renewed the chithi and, therefore, by a registered letter dated 28-4-1958 the plaintiff asked the defendant No. 1 to send the renewed chithi to him. On 29-4-1958 the defendant No. 1 informed the plaintiff that he had already sent a renewed chithi for Rs. 33,000/- to the defendant No. 2 at Nagpur, Later, by a letter dated 2-5-1958 the defendant No. 1 informed the plaintiff that he had fully discharged the liability under the chithi by payment of Rupees 23,250/4/0 to the defendant No. 2. The plaintiff did not accept the position that the defendant No. 1 had sent the chithi to the defendant No. 2 or that he had paid the amount due under the chithi to the defendant No. 2, and according to him, the defendant No. 1 being closely related to the defendant No. 2, they were colluding and any discharge given by the defendant No. 2 to the defendant No. 1 was not binding on the plaintiff. He, therefore, filed a suit to recover the amount of Rs. 35,281. 78 from the defendant No. 1, and alternatively from the defendant No. 2. It may be stated that after the death of Balmukund, according to the plaintiff, he and the defendant No. 2 had expressed an unequivocal intention to separate and divide their properties, but each party blamed the other for not being able to partition the property. The plaintiff claimed that he was still the Karta of his branch of the family and as such was entitled to maintain the suit.

(3.) THE defendant No. 1 in his written statement contended that though the original chithi was in the name of Balmukund alone, after the death of Balmukund, the chithi dated 17-4-1957 was executed in the joint names of Balmukund and Madan Mohan on the representation of the plaintiff that both of them were entitled to the said amount. He admitted the execution of the several chithis, but according to him, he having paid the entire amount due under the chithis to the defendant No. 2 who had given a valid discharge to the defendant No. I, the plaintiff could not claim anything under the chithi from the defendant No. 1. One of the defences raised by the defendant No. 1 was that the amount belonged to the firm Balmukund Bhikulal, and since the suit was brought in the name of the plaintiff himself, the suit as framed was not maintainable as the firm was not registered under Section 69 of the Partnership Act. According to the defendant No. 1 even if the money was held to have belonged to the joint family firm, the said firm was managed first by Balmukund and then after him by the defendant No. 2, Balmukund's son, and the defendant No. 2 was, therefore, entitled to give a full discharge to the plaintiff. It was also pleaded that the payment having been made in good faith, the defendant No. 1 chithi. An additional defence was raised on the frond that the firm Bhikulal Madan Mohan had no money-lending licence and as such the suit did not lie for recovery of the money because the plaintiff was a moneylender and in any case he was not entitled to any costs or interest because the provisions relating to sending of yearly statements of accounts and maintenance of account of the loan in question were contravened by him.