HINDU KHANDAN MUSHTARKA Vs. HEM RAJ

JUDGEMENT

(1.) THIS is plaintiffs revision application and arises Out of a suit instituted by him for the recovery of Rs.125/ - on the basis of a Nawan executed by the defendants father on 28th Kartik 2010. The plaintiff alleged that Rs.125/ - were advanced by him to the father of the defendant in connection with some marriage ceremony and the defendants father executed a Nawan in his favour for this amount. It was alleged that the interest agreed to be paid by the defendantâ„¢s father was 12 per cent per annum. The defendant dejnied any knowledge of the transaction and also denied the execution of the Nawan by his father. The trial Court of Munsiff Ramnagar found that the defendants father had executed the Nawan and that Rs.63/ -, as admitted by the plaintiff, wore paid by the defendant and the balance due was Rs.62/ -. In regard to interest the trial Court found that there was no reliable evidence to prove that interest at the rate of 12 per cent per annum was agreed to be paid by the father of the defendant. The plaintiffs suit was accordingly decreed to the extent of Rs.62/ - against the assets of the defendants father in the hands of the defendant.

(2.) IN this revision application it is argued on behalf of the plaintiff that the question of interest was perfunctorily dealt with by the trial Court and it had erred in not allowing interest at the rate of 12 per cent per annum which the defendants father had agreed to pay to the plaintiff. Counsel for the respondent in reply argued that the Nawan was completely silent in regard to interest and that the plaintiff was not competent to adduce oral evidence about interest which was not included in the written agreement between the parties. The question for consideration is whether the plaintiff was competent to adduce oral evidence in support of a matter on which the document was completely silent. It is true that in the Nawan there is no mention made that interest will be paid by the defendant to the plaintiff. The contention of the plaintiff petitioner is that a separate oral agreement was entered into in regard to the interest to be paid by the defendant to the plaintiff. This contention to my mind is not tenable. From the evidence it appears that at the very time the Nawan was executed there was an agreement to pay interest but the same was not incorporated in the written agreement and so it cannot be considered a separate transaction altogether. Proviso (2) to section 92 of the Evidence Act reads as under: