(MAHANT) RAMKESHWAR DAS Vs. BALDEO SINGH

JUDGEMENT

(1.) The appellant is the mahant of a math who on the death of his guru in 1928 found his entry into the math obstructed, so that he was forced into litigation for the assertion of his title. In this litigation he obtained the assistance of Babu Baldeo Singh who looked after his legal work for him. While the litigation continued the mahant executed a number of handnotes; and ultimately after four handnotes had been executed, a new handnote was executed for Rs. 2,100 in respect of the whole liability. The plaintiff sued the mahant for recovery of the amount due on this handnote. He sued also for two loans of Rs. 500 and Rs. 50 which he said had been made to the defendant without acknowledgment. The defendant in his written statement did not admit execution of the handnote; but he said that he had been made to put his thumb impression and signature on five blank sheets of paper under threats from the plaintiff whose position as his karpardaz enabled him to exert undue influence. When the case came on for hearing the Subordinate Judge treated this admission of signature and thumb impressions on blank sheets of paper as admission of execution; and he called upon the defendant to prove that consideration for the handnote in suit had not passed. When the defendant came to give evidence he admitted that in addition to his signature he had written at the plaintiff's instance acknowledgments of loans received on these five pieces of paper which in his written statement he had described as blank. The defendant's evidence to the effect that consideration had not passed was not believed by the Subordinate Judge, who also refused to believe the rebutting evidence which was given on behalf of the plaintiff describing the place and the manner in which the loans had been made; but in an affidavit which had been filed before the District Judge on 15 November 1930 in the course of the probate case the defendant mahant had admitted that he had borrowed Rs. 2,100 from Babu Baldeo Singh and had executed a handnote. This admission was treated by the Subordinate Judge as sufficient evidence of the fact that the loan had been taken and that the handnote had been executed in consideration of it. He therefore decreed the plaintiff's claim so far as it was based on the handnote. For the two verbal loans of Rs. 50 and Rs. 500 respectively he did not believe the evidence which was adduced on behalf of the plaintiff to prove that the loans had been made; and he dismissed that part of the plaintiff's claim.

(2.) The defendant appealed to the District Judge and the plaintiff preferred a cross-objection against the dismissal of his claim based on the verbal loans; but both the appeal and the cross-objection were dismissed. Mr. Sushil Madhab Mullick on behalf of the appellant takes exception to the procedure which was adopted by the learned Subordinate Judge in the trial. By his order of 22 August, 1932 he directed that the plaintiff should first adduce evidence regarding the two verbal loans and also regarding the legal necessity for the loans in suit. Another defendant with whom we are not here concerned was then to give evidence regarding his case that he had not been surety for the two loans of which there was no written acknowledgment. The mahant was then to adduce evidence to prove that consideration had not passed for the handnote; that there was no legal necessity for the loans and in proof of the alleged undue influence and coercion. The plaintiff was then to adduce rebutting evidence on the points raised by the mahant. When the case was taken up the pleader for the mahant applied for time on the ground that his witnesses had not appeared; and when an adjournment was refused he withdrew from the Court. Later in the day he came forward to contest the suit when the Subordinate Judge directed that he should be permitted to cross-examine the plaintiff only regarding the question of legal necessity and the two verbal loans. The plaintiff was directed at the same time to present himself again for cross-examination after the close of the evidence of the mahant.

(3.) These orders so far as they placed upon the defendant on the effect of his written statement the burden of proving that consideration for the handnote had not passed were not correct, because in the written statement there had been no admission of the execution of the handnote, but merely an admission that the thumb impression and signature had been given on blank paper under coercion. But the order of the Subordinate Judge was ultimately justified when the defendant himself gave evidence, because he then admitted in cross-examination regarding the five blank papers on which he had given his thumb impression and signature, that he had written on the blank papers that so much had been taken by him as loan from the plaintiff, that is to say, he admitted execution of the handnote in suit, so that the burden was actually cast upon him of proving that consideration had not passed, because in the absence of evidence on the point the presumption would be that the handnote was executed for consideration.