KASTOORCHAND Vs. MOTILAL

JUDGEMENT

(1.) THE suit out of which this second appeal has arisen was brought by Motilal against the present appellants Kastoor Chand and his son Kanhya Lal, and two other sons of Kastoorchand viz. , Motilal and Basantilal who have been impleaded as respondents in this appeal.

(2.) THE plaintiffs case was that Kastoorchand was the karta of a joint Hindu family consisting of himself and his sons and carried on business in the name of Malookchand Kastoorchand. THE case disclosed in the plaint further was that Kastoorchand had borrowed a sum of Rs. 1,502/- from the plaintiff Motilal on Posh Sudi 2 Svt. 2004, and the latter had arranged the above-mentioned amount to be paid in the manner following: - (1) A sum of Rs. 1,200/- was paid through the firm of Raghveshwar Madhu-sudan of Banswara, the allegation being that it was a firm in which the defendants were partners;. (2) A sum of Rs. 202/- was paid to the defendants through another firm Cham-palal Kishenlal of Ghotal; and (3) A sum of Rs. 100/- was paid to Pyarji Menulal Tilwada on behalf of the defendants. THE plaintiff relied in support of his case on the Khata Ex. P-1 which was alleged to have been executed by Kastoorchand in favour of the plaintiff. It would be convenient to state the recitals in the Khata at this stage. THEse recitals are : "received a sum of Rs. l,502/- (in words fifteen hundred and two) only in cash. Interest payable on this amount would be rupee one per cent per mensem. Attested by Jodawat Rikhabdas Deepchand, Signed by Malookchand Kastoorchand. " THEre is an entry of a sum of annas -/5/6 as costs of a notice dated 24th March, 1949, and a further entry of interest amounting to Rs. 275,/3/6 on the debit side, the total amount thus being Rs, 1,777/9/- against which there is a credit entry of Rs. 200/- dated the Baisakh Vadi 1 received through Deepchand. THE total amount due on the khata Ex, P-1 thus works out to Rs. l,577/9/- for which the plaintiff brought the present suit on 25th August, 1949. THE defendants Kastoorchand, Basanti-lal and Kanhyalal minor through his father Kastoorchand who was his guardian ad litem contested the suit, and his (Kastoorchand's) remaining son Motilal allowed the suit to go ex parte against him. THE principal pleas raised by the defendants were that Kastoorchand had not executed the khata Ex. P-1 at all and that he had never received the sum of Rs. 1,200/- from the firm of Reghveshwar Madhusudan of Banswara, and, therefore, Ex. P-1 was void for failure of consideration. As regards the remaining two sum of Rs 202/. and Rs. 100/-, it is common ground between the parties that the sum of Rs. 202/- had been paid back although the defendants' contention was that this had nothing to do with the khata. THE defendants further admitted that the sum of Rs. 103/- which was paid by the plaintiff to. Pyarji Nenulal on behalf of the defendants was still due from Kastoorchand and he was prepared to pay it. THE trial court decreed the plaintiff's suit for Rs. 1. 577/9/- and allowed interest at 6% per annum from the date of the decree to the date of realization, and did not allow any pendente lite interest. Both parties contested this decree before the District Judge of Pratapgarh; the plaintiff by an appeal for the interest disallowed and the defendants by a cross-objection contested that the entire suit less the sum of Rs. 100/- admitted should have been dismissed THE learned District Judge, however, affirmed the decree of the trial court, and dismissed both the appeal and the cross-objection by his judgment dated 4th September, 1951, from which the defendant have filed the present appeal, and the plaintiff has further filed a cross-objection praying for the award of pendente lite interest to him. I shall take up the appeal first.