CHHAGANLAL Vs. MANJI

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for recovery of Rs. 803/9.00 on the the basis of two khatas ( Ex. 1 for Rs. 521/- and Ex. 2 for Rs. 297/-) executed on 20th Dec., 1942 by the respondent. Both the courts have dismissed the suit.

(2.) Plaintiff's case was that Manji defendant and his younger brother Lakhmiji after the death of their father Doongarji lived jointly. That on 10th Dec., 1942, defendant Manji acknowledged Rs. 521/- as due from him and executed a Rhata on page 12 of the Bahi for the same. On the same day he also acknowledged Rs. 297/- due from him and executed a Rhata at page 13 of his account book. Defendant further agreed to pay interest on the amounts acknowledged by him. It was alleged that the defendant and his younger brother made the following payments in Exs. 1 and 2. <FRM>JUDGEMENT_8_LAWS(RAJ)11_19611.html</FRM> The total amount with interest of Rs. 519/11/- in Ex. 1 came to Rs. 1040/11/-. Similarly, in Ex. 2 the total amount with interest of Rs. 294/2/- came to Rs. 591/2/-. Thus the total amount due from the defendant and his brother came to Rs. 1631/13/6 out of which Lakhmi Ji took/upon himself the responsibility to pay Rs. 801/13/- and therefore, the plaintiff filed the present suit for the remaining amount i. e., Rs. 803/9.00 against the defendant. The suit was contested by the defendant and he denied execution of both Ex. 1 and 2 as well as the alleged payments. It was pleaded that Khatas Ex. 1 and 2 were mere acknowledgements and a suit could not be founded on them.

(3.) The trial court found execution of Exs. 1 and 2 proved against the defendant. It further found the fact of payments proved against the defendant. But it held that Exs. 1 and 2 were mere acknowledgements and as the previous accounts were not produced, they could not be made the basis of the suit and in that view of the matter dismissed the suit. The first appellate court on this point disagreed with the trial court and held that because Exs. 1 and 2 contained a stipulation for payment of interest they were not acknowledgements but were agreements and a suit could be based on them. As regards the alleged payments it held that the entry regarding payment of Rs. 5.00 and Rs. 2/- on 18-12-45 was not proved to bear the thumb impression of the defendant and as such could not extend the period of limitation, and therefore, holding that the suit had become barred by limitation, dismissed it.