GANGA RAM AGARWALLA Vs. LACHI RAM KISHEN DYAL

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for recovery of money due on a settlement of accounts. It appears that there were sale and purchase transactions between the firms of the plaintiff and defendants. The case for the plaintiff is that upon adjustment of accounts to the end of the year 1964 (Sambat) Rs. 10,049-15 were found due from the firm of the defendants (Ganga Ram and Moti Ram) to the firm of the plaintiff (Luchi Ram Kishen Lal), and that thereafter payments were made, with the result that at the date of the institution of the suit, a sum of Rs. 7,900 was payable to the plaintiff by the defendants jointly. The defendants, who are brothers, filed separate written-statements. The first defendant stated that he had separated from his brother and had made, on his own account, a payment of Rs. 1,200 to the father of the plaintiff on the 15th July 1908, in consideration, whereof the latter had agreed to release him, from all liability on account of the transactions mentioned. His defence in substance was that there was no came of action against him. The second defendant admitted liability to the extent of Rs. 4,669-9-9. The first defendant in support of the defence taken by him produced a document, called a farkati, which he asserted was in the handwriting of the father of the plaintiff. The document is in these terms: "Ram Ram of Luchi Ram Kishen Dyal to honoured Ganga Ram Chota Ram. There was money due to this firm, out of that I have received Rs. 1,200. Out of the amount due from his firm, I received Rs. 1,200 from him and struck out his name. I have no business left with Ganga Ram Chota Ram I shall realise from Moti Ram Sheo Ram. No claim against Ganga Ram Chota Ram remains. Whatever is found_ due in my khata, I shall take from Moti Ram. I have no complaint against Ganga Ram. If I do, I shall be held a liar in Court. Sambat 1965,month saon Badi 2 = 15th July." This document, it will be observed, does not bear the signature of the alleged executant. The plaintiff repudiated the document as a forgery. The Subordinate Judge has held upon the evidence on the record that the document is genuine, and that the whole of it was written by Luchi Ram, the father of the plaintiff, Kishen Dyal. But he has held that the document is not operative in law, because it was never signed by the executant, in his opinion, the document was in substance little more than a draft which Luchi Ram might have intended to execute. In thin view the Subordinate Judge has refused to give effect to the contention of the first defendant that upon payment of Rs. 1,200 to the creditor, he had secured a release from all liability in connection with the transactions mentioned. The result has been that the Subordinate Judge has made a joint decree against the defendants for the entire sum claimed, but he has made it payable in 12 monthly instalments.

(2.) In the present appeal by both the defendants, it has been urged that the document was valid and operative though not signed by the executant, and, was in any view, admissible in proof of the payment of Rs. 1,200. On behalf of the plaintiff-respondent, it has been argued that the document is not genuine and that the alleged payment was never made. The first question for consideration consequently is whether the document is genuine. In our opinion there is no room for reasonable doubt that, as found by the Subordinate Judge, the document is genuine.

(3.) The document was shown to one Gobind Ram Maheswari, who was examined as a witness on behalf of the plaintiff, he was first asked whether he knew the handwriting of Luchi Ram. He answered in the affirmative and then stated that the document was in the handwriting of Luchi Ram, The Pleader for the plaintiff then alleged that the witness had been gained over; but beyond a mere assertion there is nothing tangible to show that the witness was hostile to the plaintiff, There is also the testimony of Mr. Hardless, the handwriting expert, who states affirmatively that the document in question was written by the same person as the executant of seven other documents which were admittedly written by Luchi Ram. The expert is positive in his assertion that the writer of all these documents was the same person. We have in addition the testimony of Tarakeshwar Sarma and Ganga Ram that Rs. 1,200 was actually paid. Reliance, however, has been placed by the plaintiff upon the circumstance that the payment is not entered in the books of the firm represented by the plaintiff. The absence of an entry in a book of account has no doubt been regarded as a relevant fact, not under Section 34, but under Sections 9 and 11 of the Indian Evidence Act, to prove that an alleged payment was not made Imrit Chamar v. Sridhar Panday 13 Ind. Cas. 120 : 15 C.L.J. 7 : 17 C.W.N. see also Ali Nasir Khan v. Manik Chand 25 A. 90 at p. 92 (F.B.) : A.W.N. (1902) 207. But the question remains, what weight should be attached to this circumstance in the present case. The books of the firm, which the plaintiff represents, were, it may be assumed, even during the life-time of his father, written by himself. But as the payment was made in the shop of the defendants where the creditor had called to receive the money, it is conceivable that if the fact of payment was not mentioned by the father of the plaintiff to him no entry would be made in the account books. We must hold in concurrence with the Subordinate Judge that the document was written by Luchi Ram and was made over to the first defendant on receipt of Rs. 1,200 from him.