BAPPU RAJU Vs. KONDU RAJA

JUDGEMENT

(1.) The suit in which this appeal arises was instituted by the plaintiff to have it declared that a deed of sale executed by his mother, a Hindu widow, on the 7 of March 1901, is not binding on him and to recover possession of the properties conveyed under the deed to the first defendant. On the date of the sale, the plaintiff was a minor being about 17 years old and Seethiammal, his mother, purported to execute the deed as his guardian. The consideration for the sale is recited as Rs. 9,000 out of which Rs. 260 is stated to have been paid in order to meet demands for rents and costs of certain litigation and the rest of the money is stated to have been paid towards the discharge of certain debts incurred by the husband of Seethiammal and father of the plaintiff, called Kumarasawmi Rajah, who had died in May 1900. The debts specified in the deed of sale consisted of Rs. 1,000 due on otti to one Thangammal, Rs. 2,150 due on a mortgage bond to one Nandaya Kone, Rs. 790 due on another mortgage bond to one Narandarajah, Rs. 2,500 due on an otti to one Alagaraju, and Rs. 2,100 due on a mortgage bond to one Muthian Chetty and another item of Rs. 200, which with a sum of Rs. 260 paid in cash amount of Rs. 9,000.

(2.) There were several questions raised before the Subordinate Judge and he has given a decree to the plaintiff for recovery of possession of the properties covered by the deed of sale on condition that the plaintiff do pay to the first defendant Rs. 3,698-10-0 and the amount which may be found to have been due to Muthian Chetty on the 7 of March 1901, under two bonds marked Exhibits Nos. VIII and IX in this case. The defendants have preferred this appeal and the decree of the lower Court is impeached on two grounds, firstly, that the finding that there was no necessity for the sale and that the entire consideration of Rs. 9,000 did not pass is wrong, and, secondly, that the suit ought to have been dismissed as being barred by limitation. The plaintiff also preferred a memorandum of objections objecting to the findings of the lower Court that the price of Rs. 9,000 mentioned in the deed of sale was adequate and that Rs. 1,224 was in fact paid to discharge two of the bonds held by Muthian Chetty. The learned pleader for the plaintiff, however, decided not to press his objections. As regards the second point urged in appeal, the learned Vakil for the appellants, having regard to the statement contained in Exhibit A, as to the plaintiff's age, very properly did not press the plea, as we were of opinion that the statement in that document was admissible in evidence to prove the age of the plaintiffs. The statement was made by the plaintiff's father before a Government Tahsildar on the 12 of May 1893, and we have no doubt, as held in Oriental Government Security Life Assurance Co., Ld. V/s. Narasimhachari 25 M. 183 : 11 M.L.J. 379 and Ramachandra Dutt V/s. Jogeswar Narain Deo 20 C. 758 that it is relevant to prove the age of the plaintiff under Section 32 of the Evidence Act.

(3.) With reference to the question of necessity we shall first of all consider whether the finding of the Subordinate Judge with respect to the items of consideration which he held were not proved can be sustained. We shall take first the sum of Rs. 976 which is described as part of item No 6. This sum is alleged to have been paid to Muthian Chetty already mentioned in satisfaction of certain debts due to him by the estate. It appears that the father of the plaintiff executed six bonds in favour of this Chetty, each of them being for Rs. 500 and the case of the first defendant is that he paid the sum of Rs. 2,100 to the Chetty which went towards the complete discharge of two of these bonds, namely, Exhibits VIII and IX and partial discharge of two other bonds, copies of which are marked. Exhibits XXVI and XXVII. The plaintiff disputed this payment altogether and his evidence is that all these four bonds had been paid off by the plaintiff's father during his life-time. The Subordinate Judge has found in favour of the defendants that the money due under Exhibits VIII and IX was paid by the defendants who produced these bonds bearing proper endorsements of the payment. The question now to be considered is with reference to the payment of the balance, i.e., Rs. 976 in respect of these two other bonds. It is common ground that the amounts due thereunder have been paid and nothing is due to the Chetty on these bonds. The bonds are no longer with the Chetty and it is the case of the first defendant that he paid Rs. 976 towards partial discharge of what was due under those bonds and the balance must have been afterwards paid off by the plaintiff. It is further alleged by the first defendant that endorsement of thepayment was made on these bonds and that these bonds must be either with the plaintiff, or with one Chinnayya Raja, to whom the plaintiff subsequently sold certain properties of the value of Rs. 15,000 on the 20th July 1905. The defendants witness No. 7 who is the accountant of Muthian Chetty has proved the payment of this Rs. 976 and has produced his accounts which bear out his statement and also show that the originals of Exhibits XXVI and XXVII were returned to the plaintiff. The learned Subordinate Judge distrusted these accounts on two grounds that they were produced at a late stage of the case and that they are on cadjan leaves. As regards the latter reason, the mere fact that accounts are on cadjan leaves is not a sufficient ground for distrusting them though their probative value is ordinarily much less than of accounts kept in the regular form and as regards the fact that they were produced at a late stage of the case, the Subordinate Judge has failed to notice that the delay was not imputable to the defendants. They appear to have taken every step from the commencement of the case to have the accounts produced and it was not until they obtained proclamation for sale of the property of the master of defendants witness No. 7 because of default in producing the accounts that he a6 last produced these accounts. It also appears that this witness is a relation of the plaintiff's witness No. 3 who apparently is an old and faithful friend of the plaintiff's family. Besides if the defendants witness No. 7 was minded to fabricate accounts in order to help the plaintiff's case, he could easily have done so at a very early stage of the case. There is also other evidence in support of the payment and all this evidence, taken along with the fact that the originals of Exhibits XXVI and XXVII have been discharged, shifts the burden on the plaintiff to show that they were discharged otherwise than as shown by the defendants evidence. The plaintiff has adduced evidence that those bonds were discharged by the plaintiff's father himself. This case, in our opinion, is clearly false. It is amply proved that the plaintiff's father at the time of his death was in extremely embarrassed circumstances and was unable even to pay the interest due on the bonds executed by him. Exhibit XIX, which is a bond executed by the plaintiff himself in favor of this Muthian Chettiar on the 2 February, 1903, mentions that the money on these and some other bonds was outstanding on that date. It will be remembered in this connection that the debts due under the two bonds in question were only partially discharged by the first defendant so that the recital in Exhibit XIX would be consistent with the defendant's case while it is clearly inconsistent with the plaintiff's case on this point. In fact the Jearned Vakil for the plaintiff has not attempted to support the plaintiff's allegations in this respect. His argument is that the defendant must prove this payment and we think the defendant has amply discharged that burden.