KONDAN MARD DAMU Vs. INDARCHAND BACHARAJ

JUDGEMENT

(1.) The plaintiff sued to redeem a mortgage bond passed by the first four defendants on the 6th February 1905 for Rs. 600. The mortgage was admitted by the first four defendants. But the 5th defendant who had purchased the equity of redemption from defendant No. 1 denied ail knowledge of the mortgage, and said that he was a purchaser of the land. Defendant No. 6 said that he was a purchaser from defendant No. 5, and that defendant No. 5 ought to pay the mortgage debt. The mortgage was proved. But what was the principal consideration was not proved. The learned Judge came to the conclusion that Rs. 600 was due and passed a decree for that amount against defendant No. 5 and the heirs of defendant No. 6.

(2.) The 5th defendant appealed. The decree of the trial Court was reversed, because the learned Judge was of opinion that there ought to be sufficient data before the Court to enable it to determine how much of the claim was principal and how much was interest, and in the absence of such data mere guess work would not be permitted.

(3.) The position is somewhat curious because defendants Nos. 1 to 4 were agriculturists. They sold to defendant No. 5 who was not an agriculturist. Defendant No. 5 sold to defendant No. 6 deceased who was an agriculturist. It is quite possible had defendant No. 5 not sold the equity of redemption, he could not claim, the advantages of the Dekkhan Agriculturists Relief Act. As he sold again to an agriculturist, clearly defendant No. 6 can take advantage of the Act. The only difficulty is to decide whether the learned trial Judge was right in allowing Rs. 600 to the plaintiff, or whether the learned appellate Judge was right in allowing nothing because he said it was impossible to take any account as required by the Dekkhan Agriculturists Relief Act. Now the learned trial Judge dealing with the previous transactions of the mortgagor and mortgagee said: "It is said that cash advances began long before 1899 when the Dekkhan Agriculturists Relief Act was not in force in Khandesh, and the creditors did not know the utility of evidence to prove cash advance. The fact that past bonds have been produced by the defendants goes to show how little plaintiffs and their uncle then knew the importance of past documents to prove cash advance. I refuse to believe that Rs. 960 were for principal. It is not known how much was for principal and how much for interest in bonds for Rs. 800 and Rs. 160. I do not wish to penalise the plaintiffs by striking off the suit altogether as the circumstances of the case are peculiar.