SURAJ PRASAD Vs. MTMAKHNA DEVI

JUDGEMENT

(1.) This appeal arises out of a suit in which the appellant, Suraj Prasad, was the plaintiff and the respondents, Mt. Makhna Devi and Mt. Shyama, were the defendants. The plaintiff sought to recover a sum of Rs. 27,210-13-3 with the pendente lite and future interest from Mt. Makhna Devi. This sum of money according to him consisted of certain sums advanced from time to time to Mt. Makhna Devi with interest at the rate of 12 per cent, per annum up to 3rd November 1934. The learned Judge of the lower Court gave the plaintiff a decree for Rs. 10,106-3-2 with pendente lite and future interest at 3i per cent, per annum against Mt. Makhna Devi and against the estate of her deceased husband, Deo Narain. Suraj Prasad claims the balance in this appeal. Mt. Makhna Devi has not appealed upon the ground that no money was due from her but she has put in a cross-objection upon the ground that she was entitled to certain benefits under the provisions of the Agri. culturists Relief Act.

(2.) In order to explain the circumstances in which the advances are alleged to have been made by Suraj Prasad to Mt. Makhna Devi we must describe the relationship between the parties and certain transactions which occurred. We have already mentioned that Mt. Makhna Devi was the widow of Deo Narain. This Deo Narain had four brothers, Ram Narain, Ram Das, Parshotam Das and Raghunandan Prasad. Raghunandan Prasad had died before the year 1923 leaving a widow, Mt. Sampatti. In 1923 Ram Das and Parshotam Das instituted a suit for partition of the family property against Deo Narain and Ram Narain. Deo Narain was impleaded as a person of unsound mind under the guardianship of Mt. Makhna Devi. The defence in the suit was that Ram Das and Parshotam Das had converted a large part of the family property to their own use and that they should account for it. In the result a preliminary decree for partition was passed with a direction that Ram Das and Parshotam Das should render accounts of the property which they had converted to their own use. Up to the stage of the preliminary decree Mt. Makhna Devi and Ram Narain had acted in concert, but after the decree was passed Mt. Makhna Devi claimed the separation of her husband's share from the share of Ram Narain. Ram Narain objected to this claim and there was considerable further litigation but eventually Mt. Makhna Devi succeeded and in the final decree there was a direction that a sum of Rs. 98,000 should be paid in equal shares to her and Ram Narain. There had been two appeals, No. 61 of 1924 and No. 341 of 1925, the first by Ram Das and Parshotam Das and the second by Ram Narain. We may mention that Deo Narain had died while these proceedings were in progress aad after the final decree LachhmLNarain, the son of Ram Narain instituted another suit, No. 46 of 1929 in order to obtain a declaration that Deo Narain and Ram Narain had been members of a joint Hindu family and that Deo Narain's property had passed by survivorship to him and his father and that Mt. Makhna Devi had no life interest in it. The suit failed in spite of an appeal No. 355 of 1930 instituted by Lachhmi Narain. The plaintiff, Suraj Prasad, is the son of Bhagwan Das who was the first cousin of Deo Narain and his brothers. This Bhagwan Das was also married to Mt. Makhna Devi's sister. When Mt. Makhna Devi quarrelled with Bam Narain she left his house and went to live with the plaintiff. It is admitted that the plaintiff assisted her in conducting the litigation which we have mentioned. He certainly made all the payments necessary to meet the expenses of the litigation, but Mt. Makhna Devi's case was that she had a considerable sum in cash and a large number of valuable ornaments and that she had met, the expenses by making payments out of the cash to Suraj Prasad and by converting her jewellery into money which she had delivered to him. The learned Judge of the Court below found that it was not established that Mt. Makhna Devi had delivered any cash or ornaments or the value of any ornaments to Suraj Prasad. The only evidence upon this point is Mt. Makhna Devi's own statement and it has not been argued before us that her case is established. Indeed in the absence of any appeal on her behalf that no decree should have been passed against her it may be said that she has accepted the learned Judge's finding.

(3.) In addition to the advances made for the purposes of the litigation, it was alleged by the plaintiff that he had spent other sums of money on Mt. Makhna Devi's account. There were expenses of some mutation cases, payments made to Mt. Sampatti on account of a decree for a maintenance which she had obtained, expenses in defending a case filed by a certain Arya Sabha, some expenses in a profits case, some expenses in a case under the Encumbered Estates Act, expenses in a case for the partition of zamindari villages, expenses in suits for the recovery of arrears of rent, expenses in connection with an application for the execution of a decree and in a suit filed by one Ganesh Prasad, expenses in connection with the marriage of Mt. Shyama who was the daughter of Mt. Makhna Devi and of Deo Narain, expenses in connection with the funeral ceremonies of Deo Narain, certain expenses incurred for the education of Jwala Prasad who was married to Mt. Shyama, certain sums taken by Mt. Makhna Devi for her daily expenses and sums expended on the salaries of Mt. Makhna Devi's servants. The plaintiff produced his books of account showing the expenditure incurred and relied very largely upon the fact that Mt. Makhna Devi had acknowledged the correctness of the accounts from time to time in writing. These acknowledgments were inscribed in the books in the years 1927, 1929, 1930, 1931, 1933, 1934 and 1936. In each case the acknowledgments are in the handwriting of Mt. Makhna Devi herself and stamped and signed by her. The last acknowledgment was to the effect that a sum of Rs. 27,210-13-3 was the balance due and that it was correct. The other acknowledgments are in the same terms although the sums acknowledged are, of course, different., They increased from Rs. 2606-8-6 due on 16 April 1927 to the sum which we have already mentioned which was due on 20 August 1936 and which is the sum claimed. Interest was included from time to time up to 3 November 1934, but after that date no interest was included in the account.