KUNDANMAL Vs. SAKU BAT

JUDGEMENT

(1.) THIS is an appeal by the defendant Kundanmal in a suit for the recovery of money.

(2.) THE plaintiff respondent Mst. Saku Bai instituted the suit against the defendant for the recovery of a sum of Rs. 11280/ - on the basis of a khata for Rs. 10,000/ - alleged to have been executed by defendant Kundinlal on 10 -11 -69. The plaintiff alleged that the sum of Rs. 10,000/ - was borrowed by Kundanmal who executed the khata. The loan was to carry interest at the rate of fourteen annas percent per mensem. On the defendant's failure to repay the amount, the plaintiff brought the suit for the recovery of Rs. 10,000/ - as principal and Rs. 1280/ - by way of interest - -total Rs. 11280/ -. The defendant -appellant admitted having executed the khata Ex. 1 but denied that he received consideration. It was pleaded that the khata Ex. 1 was executed at the instance of the plaintiff's husband PW 4 Dhanraj as the latter required such khata for income -tax purposes. The defendant further alleged that the plaintiffs husband was his friend and therefore he obliged him by executing the khata without consideration. It was also pleaded that the suit was not triable by the Court of the Additional District Judge, Sirohi, as the khata was executed in Bombay and he was also the resident of Bombay. The learned Additional District Judge framed a preliminary issue as to the jurisdiction of the court to try the suit and held that the suit was triable by the court at Sirohi as the defendant was a permanent resident of Sheoganj which is situated within the territorial jurisdiction of the court of the Additional District Judge, Sirohi. The learned Additional District Judge after evidence held on merits that the khata was executed for consideration. He accordingly decreed the suit and awarded pendente lite interest and future interest at the rate of six percent per annum. Aggrieved by the aforesaid decree, the defendant has filed this appeal.

(3.) THE main question on which much stress has been laid is that the suit khata was without consideration. In this connection, the defendant on whom the onus of proof lay has not produced any satisfactory evidence to show that he executed the khata without the receipt of the amount of Rs. 10,000/ -. The main witness on which reliance is placed is DW Hansraj. His evidence is that the husband of the plaintiff sent him to Bombay with the bahi and asked to obtain a khata from the defendant for a sum of Rs. 10,000/ - as the same was required by him for income -tax purposes. This witness appears to me to be entirely untrustworthy one. In the first place, bahi in which the khata Ex. 1 was executed is all blank and there is no entry except the khata in dispute. That shows that the plaintiff's husband sent a blank bahi to Bombay with the witness Hansraj. It is not understandable that a person would send a blank bahi to Bombay. That apart, the defendant has admitted in his statement that Hansraj had served him as munim for two to three years. Again Hansraj is a resident of Sheoganj and the reason given by him that he went to Bombay in order to drop a girl there intending to take part in some Updhan is not at all convincing. The only other witness to prove that the khata Ex. 1 was executed without the receipt of money is the defendant himself. He is a businessman having business at Bombay, Madras and Udaipur. It is difficult to believe that such a businessman would oblige his friend and execute a khata without the receipt of money. The khata was executed in favour of the plaintiff's husband. It is in evidence that the plaintiff is not an income -tax prayer. If any khata was required for income -tax purposes, the plaintiff's husband should have obtained a khata in his own name rather than in the name of his wife. On the other hand, there is convincing evidence on behalf of the plaintiff namely PW Ghishalal and PW Dhanraj besides the plaintiff's own statement to prove that a sum of Rs. 10,000/ - in cash was paid to the defendant at the time he executed the khata Ex. 1. I see no reason to disbelieve the testimony of all these witnesses. I entirely agree with the learned Additional District Judge that the defendant had failed to prove that the khata Ex. 1 was executed by him without consideration.