KADHER MAL Vs. KUNWAR SHEO NARAIN

JUDGEMENT

(1.) This is an appeal by the defendant. The plaintiff Kunwar Sheo Narain brought a suit against the defendant Kadhar Mal, for the recovery of Rs. 2400 together with costs and pendente lite and future interest (alleging?) that he had advanced to the defendant on 15 June 1935, a sum of Rs. 1800 and the defendant had executed a promissory note promising to pay the said amount together with interest at the rate of 1 per cent, per mensem. The defendant pleaded that he did not borrow any money from the plaintiff, nor had he any necessity to borrow money and that he did not execute any promissory note in favour of the plaintiff. It was further pleaded that the defendant was born on 18 February 1919, and he was, therefore, a minor on 15 June 1935. In 1935 the defendant used to pay Government revenue of about Rs. 3000 and an income-tax of Rs. 500. But the plaintiff was given to drinking and gambling and the defendant was induced by certain persons to go to the place of the plaintiff and there he got the habit of drinking and gambling and the plaintiff and his friends might have obtained some writing on some paper from the defendant while he was under the influence of drink. It was said that the plaintiff had filed an application under the Encumbered Estates Act but had not shown therein the debt in question. The trial Court struck four issues in the suit: 1. Did the defendant execute the promissory note in suit? 2. Was the consideration of the said promissory note paid to the defendant or was his signature obtained "while he was intoxicated? 3. Was the defendant minor on the date of the promissory note in dispute? 4. To what relief is the plaintiff entitled?

(2.) On the question of minority the trial Court came to the conclusion that the defendant had failed to prove his minority on the date of the promissory note in suit. It also held that the promissory note was duly executed but on the other issues the trial Court came to a conclusion adverse to the plaintiff. The learned Additional Munsif thought that the evidence led by the plaintiff on the question of consideration was very doubtful. The plaintiff himself was indebted to the extent of Rs. 80,000 and the debt had come down to him from the time of his grandfather and he himself had added to it. The plaintiff made no enquiry about the fact whether the defendant was joint or separate with his father and it was not possible that a man who was himself indebted to the extent of Rs. 80,000 would advance Rs. 1800 to a young man without getting some assurance about the safety of his money. The learned Additional Munsif laid the burden of proof, under the circumstances of the case, on the plaintiff and held that although the plaintiff may have made some small advances to the defendant or the sum might be due on account of losses of gambling or price of wines but it was not possible that hard cash to the extent of Rs. 1800 could have been advanced under the circumstances of the case.

(3.) The story of the defendant that he might have executed the promissory note when he was under intoxication was not believed by the learned Additional Munsif who thought that the promissory note was executed by the defendant in his full senses, but at the same time the plaintiff had failed to discharge the burden that Rs. 1800 actually passed from the plaintiff to the defendant. In this view of the matter, the learned Additional Munsif dismissed the plaintiff's suit, but as the defendant had been guilty of raising many false pleas the defendant was deprived of his costs.