CHANDRA NARAYAN DEO Vs. RAMCHANDRA SERAWGI

JUDGEMENT

(1.) This is an appeal from the concurrent decisions of the Courts below decreeing the plaintiff-respondent's suit for recovery of Rupees 2200 on the basis of a promissory note executed in the following circumstances. Thakur Sri Pratap Narayan Deo was the proprietor of the Lakshmipur Estate in the district of Bhagalpur. He appears to have been a much married man, having married five ladies in succession, and died leaving him surviving all those ladies as his widows, but no male child. He left a will, authorising his seniormost widow, who was impleaded as defendant 1 in this suit, to make an adoption of a son to him. She adopted Thakur Chandra Narayan Deo, defendant 2 in this suit, whose father was Thakur Sahdeo Narayan Deo. The will was proved, and the seniormost widow aforesaid, Thakurain Kusum Kumari Devi, was appointed the administratrix of the estate. She appointed Thakur Sahdeo Narayan Deo aforesaid as her man of business with a power-of-attorney. The plaintiff's case is that Sahdeo Narayan Deo borrowed rupees 1100 in cash from the plaintiff for the benefit of the Lakshmipur Estate on the basis of a handnote, dated 14 August 1932, agreeing to pay interest at three per cent, per mensem. The plaintiff also alleged that he paid Rs. 10 on each of the three dates with a view to saving limitation, namely, on 10th July 1935, 9 July 1938 and 5 September 1938, making endorsements of payment on the back of the handnote itself. The suit was instituted on 4th September 1941, that is, on the last day of limitation, treating the alleged payment of Rs. 10 on 5 September 1938, as the starting point of limitation. The claim was limited to double the principal sum advanced, though on accounting, the plaintiff alleged, he was entitled to a much larger sum. The suit was contested by defendant 2 on the ground that it was barred by limitation; that Thakur Sahdeo Narayan Deo had no power to borrow the money on behalf of defendant 1 or defendant 2, as he had no such authority under any general power-of-attorney, nor did he, as, a matter of fact, borrow Rs. 1100 on 14 August 1932, as alleged by the plaintiff; that there was no necessity or occasion for borrowing, inasmuch as the estate had sufficient funds in its hands; that, on enquiry, it had been found that the said Thakur Saheb borrowed Rs. 1700 from the plaintiff in September 1929, for his own personal use; and that he paid Rs. 2500 on 14 August 1932, towards the aforesaid dues in respect of principal and interest, and executed the handnote sued upon for the remaining sum of Rs. 1100.

(2.) It was thus clearly denied on behalf of the defendant that the money had been borrowed by Thakur Sahdeo Narayan Deo on behalf, and for the benefit, of the estate of the defendant, and that he had any authority to borrow any sum on behalf of the estate. Relief was also sought under the Bihar Money-Lenders Act. It was also denied that Thakur Sahdeo Narayan Deo had made any endorsements on the handnote or that he made any such endorsements holding a general power-of- attorney on behalf of defendant 1. If was finally alleged that defendant 1 adopted the contesting defendant 2 in February 1928, and that, under the orders of the High Court passed in Miscellaneous Judicial Case No. 60 of 1987, dated 9th December 1937, defendant 2 came in possession of his estate, and that thereafter his mother had no authority to borrow money on behalf of the estate or to authorise any other person to do so. Defendant 3 put in a formal written statement, denying his liability and praying that the suit be dismissed as against him, as he had been unnecessarily impleaded.

(3.) On the question pf the liability of the estate, both the Courts below have practically thrown the burden of proof on the contesting defendant to prove that there was no authority in Thakur Sahdeo Narayan Deo to borrow the money or that the borrowing was not for a justifying necessity of the estate.. They have drawn an adverse inference against the defendant from the non-production of the account books and of the power-of-attorney. Hence, they came to the conclusion that the evidence of the plaintiff's single witness proved the plaintiff's case of borrowing by Thakur Sahdeo Narayan Deo on behalf of the estate, and for the benefit of the estate. On the question of limitation both of them took the view that the order of the High Court (Ex. A) did not affect the question of limitation. The trial Court passed a decree against defendants 1 and 2 both. But, on appeal, the learned Subordinate Judge modified the judgment and decree of the trial Court by exonerating defendant 1 and confining the decree as against defendant 2 only. Hence this second appeal on behalf of defendant 2. It may be noted that the other defendants are not parties to this second appeal, the sole respondent being the plaintiff in the suit.