BASTIRAM Vs. SEWARAM

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the judgment and decree passed by the learned Civil Judge of Jodhpur, dated 3rd May, 1951. The defendants have filed cross-objections.

(2.) THE appellant Bastiram and his two sons sued Sewaram and Kesrimal respondents on the allegations that Sewaram on behalf of himself and his brother Kesrimal executed a mortgage of his immovable property mentioned in schedule 'a' on Kartik Sudi 1, Svt. 1986 against a loan of Rs. 10,000, -. Of these, Rs. 4,000/- did not carry interest as the rent of the property was stipulated to be equal to the interest on this amount. THE remaining sum of Rs. 6 000/- was to carry interest at six per cent per annum and was a further incumbrance on the same property. It was alleged that on Chet Sudi 1, Svt. 1990, the said defendants paid Rs. 1,620/- towards interest, Rs. 1,080/- towards rent of the mortgaged property, and Rs. 2,000/- towards the sum of Rs. 6,000/- which carried interest, leaving a balance of Rs. 4,000/- which carried no interest,and Rs. 3,800/- carrying interest. THE plaintiffs added Rs. 2,200/- by way of interest from Chet Sudi 1, Svt. 1990 to Kartik Sudi 1, Svt. 2000. THEy claimed in all Rs. 10,000/- from the said defendants. Karnidan, a brother of the plaintiff Basti Ram, was made defendant No. 3 on the allegations that he was a simpleton and did not understand what was to his own benefit or otherwise. THE suit was instituted on Kartik Sudi 1-2, Svt. 2000 corresponding to 30th October, 1943. ;

(3.) THE oral evidence of the agreement as to the reduction of the rate of interest and settlement of accounts and the endorsement on the deed of mortgage consists of the statement of Kesarimal defendant besides two other witnesses, Ranulal D. W. 1, and Ramdayal D. W. 2, Ranulal stated that he had gone to Mathania in the marriage of Ramratan in Svt. 1990 or 1991 and the accounting between the parties took place on the next day of the marriage. Entries were alleged to have been made in the account-books of the plaintiffs and some items were credited on the mortgage-deed leaving a balance of Rs. 5,600/ -. In cross-examination, however, he stated that the agreement as to rate of interest having been settled at 3% per annum was not reduced to writing. Ram Dayal is alleged to have accompanied Ranulal in the same marriage and he put the date of marriage to be Chet Vadi 8, Svt. 1990. According to Ranulal, therefore, the alleged settlement took place on Chet Vadi 9, Svt. 1990 while the case of the defendants is that it took place on Chet Vadi 11. Ram Dayal stated that the settlement was entered in the account-books of the plaintiffs in the pen of Kesarimal and the balance of Rs. 5,600/- was struck after calculation of interest at 3% per annum. He also stated that it was Kesrimal who made the endorsement on the deed of mortgage in respect of the settlement. Ram Dayal puts the date of settlement as Chet Vadi 11, Svt. 1990. Both these witnesses are, however, closely related to the defendants, Ranulal being sister's son of the defendants and Ramdayal son-in-law of Sewaram. As regards Kesrimal, he stated in his examination-in-chief that after the rate of interest had been reduced to 3% per annum, account was made up and the entries were made by him in the account-books of Bastiram and on the mortgage-deed. He admitted in cross-examination that he made a copy of it and also entered the same in his own account-books. THE defendant did not produce his own account-books nor the copy which he had taken from the account-books of the plaintiffs and, therefore, a most valuable piece of evidence which could be produced by the defendant has not been placed before the Court.