NABENDRA NATH BASAK Vs. SHASABINDOO NATH BASAK

JUDGEMENT

(1.) This appeal arises out of a suit to recover half share of the money due on a hatchita alleged to have been executed by defendant 1 in favour of himself, defendant 2, plaintiffs 2 and 3 and the father of plaintiff 1 on 31 Chaitra 1338 B.S. corresponding to 15 April 1932. The defence of defendant 1 is that he did not execute the hatchita in suit, that the claim in the suit is barred by limitation and that the suit is not maintainable in the present form. The Subordinate Judge has overruled all these defences and has decreed the suit. Hence this appeal by defendant l. The first point for determination in this appeal is whether the hatchita in suit was executed by defendant 1. Two handwriting experts were examined in this case: one (Mr. F. Brewster) by the plaintiffs and the other (D. W. l) by defendant 1. Mr. Brewster is of opinion that the hatchita in suit bears the signature of defendant 1. The opinion of D. W. 1 is that the signature on the hatehita in spit which purports to be the signature of defendant 1 is forged. This being the nature of expert evidence it is necessary to look into the admitted facts as well as other evidence in this case. The admitted facts are these : (1) Dharani (father of plaintiff l), Jadu (father of plaintiffs 2 and 3), Debendra (husband of defendant 2) and defendant 1 were four brothers living as members of a joint Hindu family governed by the Dayabhaga School of Hindu law. They had considerable joint moveable and immovable properties. (2) In the year 1319 B.S. (1912) there was a division of the jewelleries, gold and silver ornaments, shawls, etc., among the four brothers but their other properties remained joint. (3) In the year 1328 B.S. (1921), the four brothers opened a moneylending business with a capital in which each had one-fourth share. (4) Defendant 1 used to draw money from this moneylending business from time to time for his own business and to repay certain amounts from time to time.

(2.) The hatchita in suit on the face of it purports to have been executed for Rupees 33, 513.9-10 paid in cash to defendant 1 on 31 chaitra 1338. It appears from the account books of the moneylending business belonging to the persons in whose favour the hatchita was executed (Ex. 2, khatian from 1333 B.S. to Chaitra 1338 B.S. and Ex. 3, the entry in the jama kharach dated 31 chaitra 1338) that this amount was the balance arrived at by setting off the items showing payments made by defendant 1 from time to time against the items showing the loans taken by him from time to time. The genuineness of these account books was not challenged before us. The evidence in this case shows that they were kept in regular course of business and that defendant 1 agreed to this set-off and accepted the balance as the amount due from him. No attempt was made by the appellant to surcharge or falsify the entries in the account books. The account book (ex. 3) shows that on 31 of Chaitra 1338 the amount mentioned in the hatchita was debited to the account of defendant 1 as having been lent to him in cash on that date and a similar amount credited to his account on that date as having been paid by him in cash on that date. This explains why the hatchita mentions the amount stated in it as lent to defendant 1 in cash. This is however a method of bookkeeping. Nothing was paid in cash to defendant 1 on the date of the execution of the hatchita. The amount mentioned in the hatehita is the balance arrived at by consent of parties after setting off the payments against the debts.

(3.) Defendant 1 admits that he executed a hatchita for a sum exceeding Rs. 30,000. His case however is that he did so not on 31 Chaitra 1338 but in Aswin 1339 (September 1932) and that the hatehita was taken from him by coercion, Defendant 1 admits that the hatchita which he executed was written by Jadab (P. W. 3). This witness admittedly was the amuktear of all the four cosharers. He is no longer in their service. His evidence is that he wrote out the hatchita in suit and that defendant 1 in his presence signed it on 31 chaitra 1338 B.S. There is no reliable evidence on the side of defendant 1 to show that he executed a hatchita in Aswin 1339 or that any pressure was put upon him when he executed the hatchita on 31 chaitra 1338 B.S. The trial Judge has believed the evidence of P. W. 3. We see no reason to disbelieve him. The trial Judge on a consideration of the entire evidence in the case has come to the conclusion that the hatchita is a genuine document. The admitted facts and the oral and documentary evidence in this case clearly support the conclusion of the trial Judge. We therefore hold that the hatchita in suit was executed by defendant 1 and is a genuine document. The second point for determination is whether the claim on the hatchita in suit is barred by limitation. Plaintiff's case is that the suit is for recovery of money found to be due on accounts stated within the meaning of Art. 6i, Limitation Act, and is therefore within time. An account stated is an account which contains entries on both sides and in which the parties have agreed that the items on one side should be set against the items on the other side and the balance should be paid. The items on the smaller side are set off and deemed to be paid by the items of the larger side from which arises a promise for good consideration to pay the balance. A stated account is a promise for good consideration to pay the balance even though some of the debts were barred by limitation. (Per Lord Atkin, Sequeira V/s. Noronha ( 34) 21 AIR 1934 PC 144 at p. 337.)