HAZARIMAL KOCHNAJI Vs. KHEMCHAND MAGGAJI

JUDGEMENT

(1.) THIS appeal is directed against the judgment of Modi J. dated 1st December, 1958.

(2.) IT arises out of a suit for recovery of a sum of money instituted by the plaintiff-respondent in this appeal. The parties belong to the Porwal caste and they happen to be relations inasmuch as the plaintiff's daughter is married to the brother of the defendant Hazarimal. It is the common case of both the parties that Hazarimal had been out-casted by his caste-men, which is known as the Porwal Sangh, some six years ago. Hazarimal was, therefore, anxious to be restored to his caste and to have the ban removed. He accordingly collected the Panchas who came from 48 different villages and consisted of nearly 150 persons at Umaidpur for the purpose of having a meeting of the Panchayat in order to remove the ban which had been imposed upon him. This was in the month of Migsar Vadi 15, Samwat 2008, which corresponds to 17th November, 1952 (and not 11th November, 1952, as noted in the judgment of Modi J. ). The case of the plaintiff is that after a discussion for about three days, the members of the Panchayat agreed to remove the ban and to restore the defendant to the Porwal caste, on condition that the defendant paid a sum of Rs. 10,225/- to the Panchayat. This money, according to the plaintiff, was to be spent on certain charitable objects connected with temples and other institutions of the community. The plaintiff's case further is that the Panchas had earlier asked Hazarimal before giving their decision to agree in writing to abide by the decision of the Panchayat, which the defendant had willingly done; and then a small committee of 23 persons selected out of the Panchas was appointed to consider the matter and it gave the decision which was adopted by the general body of the Panchayat and the ban was ordered by the Panchayat to be removed, subject to the payment of the money aforesaid. As Hazarimal had not the money in hand he asked the plaintiff to pay the above amount to the Panchayat and thereupon the plaintiff executed that very day a Hundi for a sum of Rs. 10,225/- bearing the post date of Missar Sudi 15, samwat 2009, corresponding to 1st December, 1952 (and not 26th November, 1952 ). The Hundi was drawn on the firm of Lakhaji Daulaji of Bombay and was handed over to the President of the Panchayat, Poonam Chand, immediately. This Hundi was endorsed by Poonam Chand, the President, in favour of one Sardar Mal who encashed the same on 2nd December, 1952. The defendant had agreed to reimburse the plaintiff in respect of the amount of the Hundi issued by him and to pay back the amount as soon as he reached Madras. It may be added here that both the plaintiff and the defendant carry on business at Madias, though they are residents of Rajasthan, the plaintiff being a resident of Umaidpur and the defendant of Dayalpura at a distance of about 5 miles from each other. The defendant in payment of the amount according to the case of the plaintiff sent a bank draft to Lakhaji Daulaji for a sum of Rs. 5,000/- on Poh Vadi 1st, Samwat 2009, which corresponds to 2nd December, 1952, and wrote a letter to the firm asking the money to be credited in the account of the plaintiff. The money was credited accordingly on the 3rd of December, 1952. Thereafter, the plaintiff says, the defendant did not pay the balance of the amount in spite of repeated demands and, therefore, the present suit had to be instituted on 13th of May, 1953. He claimed to recover in the suit a sum of Rs. 5,225/-by way of principal and further a sum of Rs. 235/2/-by way of interest, from 11th November, 1952, upto the date of the suit as also Rs. 119/14/-, as incidental expenses, which were said to have been incurred by the plaintiff in demanding the recovery of his dues.

(3.) THE defendant admitted that he had been out-casted by the Panchayat and also that he had requested the Panchas at Calehatgarh, which is the headquarters of the Porwal Sabha, to collect the Panchayat for removal of the disqualification imposed upon him. It was also admitted by the defendant that as a result of convening the meeting of the Panchayat, the disqualification had been removed. He, however, denied that the removal of the disqualification or the ban imposed on him was made conditional on his paying the sum of Rs. 10,225/- as alleged by the plaintiff; or that he had ever agreed to pay the same; or that he had asked the plaintiff to pay the amount on his behalf. His case is that the Panchas had merely asked him to deposit an advance sum of Rs. 1,500/- to meet the expenses of the panchas, so that a meeting of the Panchayat could be called and the amount spent over incidental costs of calling the meeting; and after the ban had been removed, a sum of Rs. 620/7/- was in fact returned to the defendant, after meeting the costs of the Panchas who had assembled on the occasion. In the alternative, the plea of the defendant was that if the court accepted the case of the plaintiff that in fact a sum of Rs. 10,225/- had been paid by the plaintiff on behalf of the defendant, inasmuch as the said payment was for an unlawful purpose and contrary to public policy, the defendant could not in law be held liable for reimbursing the plaintiff in respect of the amount paid. The defendant also contended that he had no need to ask the plaintiff to execute any hundi on his behalf and, therefore, the case of the plaintiff that any such Hundi had been given by him on account of the defendant was clearly false. The defendant further pleaded that some time in 1952, the plaintiff had been in a difficult financial situation and there was also a marriage in his family at about the same time, in connection with which the plaintiff required money and, therefore, the defendant arranged to advance a loan to the plaintiff; and the draft for Rs. 5,000/- in question which had been sent by the defendant to Lakhaji Daulaji for being paid to the plaintiff was merely by way of a loan and not for the payment of any dues of the plaintiff. The defendant also averred that he had instituted a suit for recovery of the loan advanced in the civil court at Madras and that suit was pending decision.