PACHKODI GULAB BADHAI Vs. KRISHNAJI

JUDGEMENT

(1.) THIS is an appeal by the defendant to set aside the decree dated 27-8-1941 passed by the Court of the Additional District Judge, Saugor, in civil Appeal No. 46B of 1940. For a proper understanding of the case it is necessary to set out the following genealogical tree: See pedigree on page 147,

(2.) PLAINTIFFS 1 to 3 are brothers, plaintiff 4 is their nephew and a son of their half-brother Gulab Shankar. Shankarnath Pandya as a guardian of the minor plaintiffs filed a suit on 22-11-1939 against the defendant to recover Rs. 2500 due with interest on account of the transactions between the parties. The defendant was a contractor who had dealings with the plaintiffs, and borrowed money from them from time to time. From 27-2-1926 to 28-7-1926 the defendant borrowed in all Rs. 3859. Interest due on that sum was Rs. 1413-1-0. The defendant paid Rs. 450 towards interest and took a further loan of Rs. 2050 on 23-10-1927, and executed a sarkat in their favour for Rs. 6872-1-0 on that date. Thereafter he took loans from the plaintiffs and repaid them several sums of money from time to time. The loans and repayments were duly entered in the sarkat by the defendant in his handwriting and the credit and the debit items were signed by him. The last repayment was made by him on 1-4-1934.

(3.) THE sarkat (Ex. P-4) contains only the account of the defendant and is written on a small exercise book and it could easily have been filed with the plaint. No reason has been stated why the sarkat book was not filed with the plaint as it should have been. The defendant in para. 3 of his written statement dated 16-1-1940 complained that the plaintiffs had withheld the original sarkat and had filed merely a copy and asked that the original be filed. The plaintiffs thereupon filed the original sarkat (Ex. P-4) on 16-1-1940 nearly two months after the institution of the suit. At the request of the defendant the sarkat book was kept in a sealed cover. The defendant filed an application on 9-2-1940 for permission to amend his written statement (File C pp. 41-43). In that application he stated that on inspection of the original sarkat he found that the name of Girja Shankar, the eldest son of Shankarnath, had been wilfully and dishonestly struck out, and that the name of Girja Shankar had also been struck out, from the ikrarnama dated 20-12-1927. The defendant alleged that he had not affixed stamps to the sarkat but they were now found to be affixed to it which seems to have been transplanted from some other place. He asked for permission to raise the pleas, viz., that the sarkat and the ikrarnama had been fraudulently altered in material particulars, that the suit of the plaintiffs was not maintainable on those documents and that the claim of the plaintiffs was liable to be dismissed. The Court permitted the defendant to amend his written statement and directed him to file an amended written statement which he did on 10-2-1940.