M KUNJU NAIR Vs. NARAYANAN NAIR

JUDGEMENT

(1.) The plaintiff in Small Cause Suit No. 1498 of 1925, on the file of the District Munsif of Palghat, is the petitioner in this Civil Revision Petition. He started a kuri in which the defendant took one ticket. The defendant bid in auction and was paid the amount due. As per the kuriwari, Ex. B, and the receipt. Ex. C (executed by the defendant to the plaintiff when he was paid the amount of the auction), the defendant was bound to pay the future instalments regularly; but having made default, the plaintiff sued to recover the whole of the future instalments at once. The defendant pleaded that the plaintiff was not entitled to claim the future subscriptions in one lump sum. The main point for determination was whether the plaintiff was entitled to claim the amounts of the future instalments in one lump sum. There was no oral evidence in the case, neither the plaintiff nor the defendant having gone into the box nor adduced any oral evidence. The only exhibits filed in the case were: Ex. A, the registered notice sent by the plaintiff's vakil to the defendant prior to this suit demanding the amount; Ex. B, the kuriwari (the rules and conditions of the kuri); and Ex. C, the receipt granted by the defendant when he was paid the prize money when he bid at the auction. The learned District Munsif held (1) that under the terms of the kuriwari, the plaintiff was not entitled to claim all the future instalments in a lump sum, and (2) that "in any case the plaintiff can only claim the subscriptions which have actually become due".

(2.) The plaintiff's suit was decreed with reference to the amounts due for the instalments which fell due up to the date of the plaint, and the claim for the other instalments was disallowed. The plaintiff has preferred this Revision Petition claiming the whole of the future instalments in a lump sum, the default by the defendant having been found by the Lower Court. On a construction of the kuriwari, I have no reasonable doubt on the first point. Para. 6 of the kuriwari - Ex. B - runs as follows: The person who bids and receives moneys is to pay his subscription on the same date of auction to the stake-holder, and cause entries thereof to be made in his book by the stake-holder. If default is made thereof, it is to be paid within five days at a profit of four annas in the rupee, and if default is made even in that, the stake-holder is entitled to recover all the amounts to be paid in future together in a lump sum with interest at 2 per cent, per mensem.

(3.) The provision is clear that when the defendant made default in the payment of subscriptions for two consecutive instalments according to the finding in the present case, the plaintiff - the stake-holder - was entitled to recover the whole of the amounts due for all the future instalments. Whether the provision is valid or not (a question to be considered presently) it is clear that there is such a provision in the kuriwari. The learned advocate for the respondent did not seriously contest this position, and I think that the learned District Munsif was not right in his construction of the kuriwari. I hold that the terms of the kuriwari provide that the plaintiff would be entitled to recover all the amounts due for all the future instalments in this case.