MADANMOHAN JENA Vs. SRINATH SAMAL

JUDGEMENT

(1.) THIS is an appeal by defendants 1, 2 and 4 and arises out of a suit brought against them and defendant No. 5 for recovery of Rs. 7,500/- alleged to be due on a registered handnote dated 25-6-1949 executed in favour of the plaintiff by defendant No. 5 and his brother Krushna Chandra Jena. Krushna Chandra Jena is dead. Defendants 1 and 2 are alleged to be his sons and defendant No. 4 is his widow. In execution of a decree which the Raja of Aul had obtained aganist krushna Chandra Jena and his brother Gananath Jena (defendant No. 5), he brought the latter's ancestral properties to sale and purchased them himself. Subsequently the two brothers negotiated with the Raja to get back the properties from him on payment of Rs. 3262/ -. For executing the sale deed in their favour, they were to purchase stamp and for this and certain other needs of theirs, they had borrowed Rs. 938/- from the plaintiff in several instalments. Both the brothers executed in favour of the plaintiff a handnote for Rs. 4200/ -. Rs. 938/- which they had previously taken from the plaintiff was adjusted towards consideration and the balance of Rs. 3262/- was paid by the plaintiff on behalf of Krushna Chandra Jena and his brother defendant No. 5 to the Raja of Aul. Shortly thereafter, the Raja executed the sale deed Ext. A in favour of the two brothers in respect of several items of property for a consideration of Rs. 2370/- and for the balance of Rs. 892/-which the Raja still had with him he promised to lease out the remaining lands of the family to Krushna Jena and his brother. The Raja, however, died before this lease deed could be executed. The plaintiff's case is that full consideration under the handnote Ext. 1 had been paid in the manner indicated above and that except a payment of Rs. 25/- made on 23-6-1952, the defendants did not make any further payment. He, therefore, brought the suit claiming Rs. 7,500/- the balance amount due with interest at 12 per cent per annum. Defendant No. 5 did not resist the suit. Defendants 1 and 2 in two separate written statements contended that defendant No. 1 had been adopted to Basudeb Jena and defendant 2 had been adopted to one Banshi-dhar Jena and that consequently neither of them was liable to pay the suit debts. In a separate written statement filed by defendant No. 4, she supported the plea of adoption set up by defendants 1 and 2. She stated that although the suit handnote Ext 1 was executed for a consideration of Rupees 4,200/-, it was supported by consideration only to the extent of Rs. 2,370/- which is the amount which plaintiff had paid to the Raja of aul on behalf of Krushna Jena and his brother. There was no stipulation for payment of interest. It was further stipulated at that time that Krushna would discharge two-thirds of the amount due on the handnote and defendant No. 5 would pay the balance one-third. Accordingly, Krushna Jena paid his two-thirds share to the plaintiff, but in view of the fact that defendant No. 5 was living with the plaintiff, the latter relinquished the share payable by defendant No. 5 and handed over the hand-note to Krushna. Subsequently defendant No. 5 stole away the hand-note from Kru-shna's house and handed it over to the plaintiff to enable him to file the present suit. It was also contended that the plaintiff has not signed in the plaint and also in the Vakalatnama and consequently the suit as laid is not maintainable.

(2.) ON the application of the defendants, the disputed signatures of the plaintiff on the plaint along with his signatures on the back of the summons were sent to the handwriting Expert D. W. 6 for opinion and he was also examined on commission. He stated that it is not possible for him to give any definite opinion regarding the genuineness of the signatures on the plaint The plaintiff who examined himself as p. W. 1 asserted that he had put his signatures in the plaint. In these circumstances, the learned Subordinate Judge rejected the defendant's plea on this point and held that the plaintiff had signed in the plaint. He disbelieved the plea that defendants 1 and 2 had been adopted away to other families and held that they still remain as sons of Krushna Jena. He believed the plaintiff's case that the consideration of Rs. 4,200/-mentioned in the hand-note Ext. 1 had been made up of Rs. 938/- which had been previously advanced to Krushna and his brother and that Rs. 3,262/- was paid by the plaintiff on their behalf to the Raja of Aul. He further held that besides the payment of Rs. 25/- entered in the hand-note, the defendants had paid a further sum of Rs. 1,789/- to Ghanashyam Samal the power-of-attorney-holder of the plaintiff who was capable of giving a valid discharge of the suit amount He disbelieved the defendant's plea that the hand-note had been fully discharged and had ever been returned to Krushna Jena. He also disbelieved the defendant's plea that there was ever any stipulation not to charge interest on the loan advanced. In the result, he passed a decree for Rs. 5,711/- with proportionate costs on contest against defendants t, 2, 4 and 5 and ex parte against defendant No. 5. Being aggrieved by this decision defendants 1, 2 and 4 have filed this appeal impleading defendant No. 5 as a pro forma respondent

(3.) THERE is no cross appeal on behalf of the plaintiff.