MADHO PRASAD SINGH Vs. MUKUTDHARI SINGH

JUDGEMENT

(1.) This is an appeal by-defendant 1 in a suit which was brought on 7 August 1936, to enforce three simple mortgage bonds dated 18 August 1925,10th March 1929 and 14 December 1931, which were executed by defendant 1 for self and as guardian of his minor son defendant 2 for Rs. 8000, Rs. 5446 and Bs. 8351 respectively, carrying compound interest with yearly rests at 11 annas 3 pies per cent, per mensem on the second bond and 11 annas 6 pies per cent, per mensem on the other two bonds. The claim on the first mortgage was Rupees 20,376-6-9, on the second Rs. 10,110-11-0 and on the third Rs. 12,417-3-9. Defendant 2 attained majority before the institution of the suit. Defendant 3 was impleaded as a subsequent purchaser of a portion of the mortgaged property. The suit was contested by defendants 1 and 2 who filed separate written statements. The defence, so far as it is material to this appeal, was that the entire consideration of the mortgage bonds was not received and that the interest was excessive. The learned Subordinate Judge decreed the claim on the first mortgage in full, on the second for Rs. 9941 4-9 and on the third for Rs. 12,224-13-6. lie also allowed pendente lite interest from the date of the suit till the expiry of the period of grace at the bond rates with yearly rests. The first point taken on behalf of the appellant is that the entire consideration was not received, and this is confined to the second bond only. The consideration of his bond Ex. 3 (B) is made up as follows:

(2.) The first handnote Ex. 4(A) and the second handnote Ex. 4(B) both carried simple interest at 12 per cent, per annum, but at the time of execution of the mortgage bond Ex. 3(B) the dues on these two hand-notes were set off, calculating compound interest at 12 per cent, with yearly rests. The Subordinate Judge disallowed the compound interest, and reduced the amount of the dues on the handnotes accordingly. The handnotes were duly proved and were also supported by corresponding entries in the plaintiff's bahi khatas. Out of Rs. 1329, due on bahi khatas Ks. 1246-2-9 was principal on which simple interest at 12 per cent, amounted to Es. 82-13-3. The entries Exs. 6(I) to 6(z) 18 on the debit side of the plaintiffs bahi khatas show that the total advances made to defendant 1 amounted to Rs. 2592.2-9. The entries, Exs. 7(C) to 7(G) on the credit side show that the total payments made by defendant 1 amounted to rupees 1346. There was thus a balance of Rs. 1246.2.9 due from defendant 1. The defendant relies on the entries Exs. 7(z) 1 to 7(z) 8 on the credit side of the plaintiffs bahi khatas which show that defendant 1 made payments amounting to Rs. 3736-8-0 during the period from Pous 1,1333, (December 1925), to POUS 10, 1336, (December 1928). It is contended that the total sum of rupees 3736-8-0 covered by these entries should have been taken into account at the time of execution of the mortgage bond, Ex. 3(B) on 10 March 1929. But on the debit side of the plaintiffs bahi khatas there are various other entries Exs. B to B (54) showing advances to defendant 1 amounting to more than Rs. 4000 which were quite separate from those that formed the consideration of the mortgage bond Ex. 3(B). The plaintiffs evidence is that the accounts were adjusted before the defendant executed the mortgage bond Ex. 3(B). The defendant is an educated man of some position. He was a Municipal Commissioner for three years and a member of the District Board, Arrah, for eight or nine years. He was also the Vice-Chairman of the District Board for six or seven months and an Honorary Magistrate with second class powers for three years.

(3.) It is extremely difficult to believe that a man of his position would blindly execute the mortgage bond Ex. 3(B) without previous adjustment of accounts. Admittedly, he has got his own accounts but he did not produce them on the plea that they could not be found. In his written statement he did not specifically allege how much he actually received out of the consideration. He made the vague allegation with regard to all the bonds: They advanced small amounts by instalments and after adding up interest and compound interest thereto and rendering incorrect accounts, got the bonds executed for larger amounts.