BHARAT BASI NAIK Vs. GOPI NATH NAIK

JUDGEMENT

(1.) Pandit Gopi Nath Naik brought a suit against Chandi Prasad Naik, Bharat Basi Naik and Mt. Tapesra for the recovery of Rs. 26,327 on account of principal and interest on the basis of two promissory notes executed on 14 June 1931. One of them was executed by Chandi Prasad Naik defendant 1 and the other was executed by Bharat Basi Naik and Mt. Tapesra, defendants 2 and 3. Both were for Rs. 10,925 each. The suit has been decreed by the Court below against the three defendants in the following terms: The suit is decreed with costs in terms of relief para. 1 of the plaint. Interest pending suit and future to run at the usual rate of 6 per cent, per annum. Defendant 1 shall be liable for the sum decreed to the extent of a half share out of it. For the remaining half defendants 2 and 3 shall be liable. Defendant 2, however, shall further be liable for the sum decreed against defendant 1 to the extent of his interest in the family property.

(2.) Against this decree Bharat Basi Naik and Mt. Tapesra, defendants 2 and 3, have filed the present appeal in this Court. The defence with which we are concerned in this appeal may now be stated. It is said that Bharat Basi Naik was a minor on the date of the promissory note dated 14 June 1931 and the promissory note executed by him was a nullity so far as he was concerned. It is further said that Mt. Tapesra was a pardanashin lady and it has not been proved that the promissory note was executed by her with an intelligent appreciation of facts. There were two brothers, Bhagwati Prasad Naik, the husband of Mt. Tapesra, and Chandi Prasad Naik, defendant 1. Chandi Prasad Naik has a son Bharat Basi Naik and there is some suggestion that Bharat Basi Naik was adopted by Mt. Tapesra. The Court below has found that Bharat Basi Naik could not have been adopted by Mt. Tapesra. Bharat Basi Naik had not only his sacred thread ceremony performed before the alleged adoption but he was also married at the time and the adoption would therefore be invalid, the parties being Brahmans. Moreover, the witnesses examined on the question of adoption and attempting to prove the same are worthless and no adoption could be held to be established on such evidence.

(3.) On 22 March, 1926 Bhagwati Prasad Naik and Chandi Prasad Naik executed a promissory note in favour of the plaintiff for Rs. 29,900. On 5 July 1928 they executed a sale deed in favour of certain persons and left a large sum of money, Rs. 11,000 odd, for payment to the plaintiff. Bhagwati Prasad Naik died some time in 1929 or 1930 and then there was a dispute in the mutation department. That was settled by means of a compromise on 10 April 1930 and it was agreed upon between Mt. Tapesra, Bharat Basi Naik, minor under the guardianship of Mt. Tapesra and Chandi Prasad Naik, that half the property should be recorded in the name of Chandi Prasad Naik and half in the name of Bharat Basi Naik under the guardianship of Mt. Tapesra.