DEBI PRASAD Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This is an appeal against a judgment and decree dated 12 September 1939 of the Civil Judge of Mirzapur by which he partly varied a judgment and decree of the Munsif of Mirzapur dated 5 November 1938, in a suit for recovery of money on the basis of a sarkhat. The plaintiff Debi Prasad is the proprietor of a firm of money-lenders called Debi Prasad Bhagwan Dass at Mirzapur. The defendants Bhagwati Prasad and Buddhu Lal who are two own brothers also own a firm at Mirzapur called the firm Bhagwati Prasad Buddhu Lal. On 20 January 1930, defendant 1 Bhagwati Prasad borrowed a sum of Rs. 1200 from Bam Dass, the father of the plaintiff, and executed a promissory note in his favour bearing interest at 6 percent. per annum. Some time after the execution of this promissory note Ram Dass died, and the plaintiff Debi Prasad succeeded to the family money- lending business. On 31 December 1935, the account between the plaintiff and defendant 1 with regard to the promissory note of 1930 was settled and a sum of. Rs. 1244 was found due after adjusting such payments as had been made by the debtor to the creditor between the years 1930 and 1935. On that date, the plaintiff made a fresh advance of Rs. 56 and after adding this fresh advance to the past balance of Ks. 1244 for a consolidated sum of Rs. 1300 the following sarkhat was executed by the defendant Bhagwati Prasad in favour of the plaintiff Debi Prasad bearing interest at 8 annas per cent, per mensem : Firm Debi Prasad Bhagwan Das. Account of Bhagwati Prasad Buddhu Lal, sons of Sita Ram, Kasera, resident of Basnai Bazar. Debit and Credit. Sambat 1992. Rupees 1300, date Pus Sudi, six. Received rupees thirteen hundred; took on 8 annas per cent. Signature of Bhagwati Prasad in autograph.

(2.) This sarkhat bears four stamps of one anna each. A substantial portion of the above writing from the word "received" up to "autograph" is written over the stamps, and this sarkhat is recorded on the first page of a new bahi. A default having been made in the satisfaction of the said sarkhat the plaintiff on 4 July 1938, raised an action in the Court of the Munsif of Mirzapur for recovery of a sum of Rs. 1395-12-0 for principal and interest, including Rs. 0-12-0 as cost of a notice, due on the said sarkhat against the defendants Bhagwati Prasad and Buddhu Lal. A controversy arose before the trial Court whether the sarkhat was a promissory note or an agreement or a bond, and the learned Munsif taking the view that it was a bond and after levying a duty and penalty of Rs. 110 admitted the document in evidence The learned Munsif further found that the claim of the plaintiff was valid to the extent of Rs. 56 with interest against both the defendants and granted a decree for that amount to the plaintiff, but with regard to the sum of Rs. 1244 the learned Munsif came to the conclusion that the claim was not enforceable under Section 25(3), Contract Act, as the sarkhat did not contain any express promise to pay.

(3.) On an appeal by the plaintiff and on a cross-objection by defendant 2, the Civil Judge of Mirzapur affirmed the judgment and decree of the trial Court in so far as it dismissed the claim with regard to the sum of Rs. 1244, but on the cross- objection of defendant 2 he modified the decree of the trial Court to this extent that defendant 2 was exempted from liability for the sum of Rs. 56 also on the ground that there was no legal necessity for the borrowing of that sum on the part of defendant 1. The plaintiff has now made this second appeal and the question for our consideration in the case is whether the entire amount of the sarkhat is legally recoverable from both or either of the defendants. So far as the liability of defendant 2 is concerned, the matter does not present any difficulty. It has now been found by the Civil Judge that the circumstances in which the amount of Rs. 56 was borrowed do not prove any legal necessity, and so far as the promise was made to pay the sum of Rs. 1244 by defendant l it was made at a time when the claim relating to that sum had become barred by time and defendant 1 as an elder brother had no power to bind defendant 2, his younger brother, with a promise to pay a barred debt or with a promise to pay Rs. 56 which was not borrowed for legal necessity. These findings are findings of fact and cannot be disturbed in second appeal.