LADURAM MARWARI Vs. BANSIDHAR MARWARI

JUDGEMENT

(1.) This second appeal arises out of the appellate judgment of the officiating Subordinate Judge at Monghyr, dated 16 September 1933, by which he partly decreed the suit of the plaintiffs. In order to understand the point of law that has been urged before us, it is necessary to give the short facts of this case. The suit was to recover a sum of Rupees a1,950 principal besides interest at the rate of Rs. 1-12-0 per cent. per mensem. It was said that the loan was advanced by plaintiff 2 out of her own money but in the name of her son, plaintiff 1. The defendant admitted that he had executed a handnote but with regard to the particular handnote that was produced in the case, his contention was that the original handnote that had been executed was tampered with and that the sum of Rs. 950 had been altered into Rs. 1,950. He further alleged that the handnote which he had executed for the sum of Rs. 950 was not for consideration paid in cash at the time of the execution, but that it was for sums found due from him on an old account. He further said that on account of certain acts of his, the plaintiff was annoyed with him and therefore he had filed the suit for a sum of Rs. 1,950. The trial Court found that the handnote was a forged document and also that the sum of Rs. 950 was advanced to the defendant in cash by plaintiff 1 on 21 Paus 1338 Fasli. For these reasons the trial Court dismissed the suit on the ground that when the plaintiff had tampered with the handnote, a decree could not be passed even for the amount admitted by the defendant. On appeal the lower Appellate Court agreed with the trial Court that the handnote was tampered with and that Rs. 950 was converted into Rs. 1,950 but gave a decree to the plaintiffs for the sum of Rs. 950. In the course of the judgment the lower Appellate Court has observed as follows: A reference to the plaint will show that the suit is not based on the handnote alone. But the plaintiffs case is that the defendant took the amount in cash and executed the handnote for the same. The suit is thus principally based on the advance of the amount, though the handnote is put in evidence to show the advance and also the terms in which the advance was made. It is proved apart from the hand-note that the defendant took Rs. 950 in cash from the plaintiffs on 21 Pous 1338 Fs. The defendant admitted that Rs. 950 was actually due by him on the date that handnote was executed, but he says that it was due on account of previous transactions. If his case had been accepted, then the suit would probably have failed as being barred by limitation.

(2.) Mr. Satya Sunder Bose on behalf of the appellant has drawn our attention to para. 3 of the plaint which runs as follows in the paper book: The defendant took a loan of Rs. 1,950 in cash from the plaintiff in order to meet his necessities and executed the hand-note in suit payable on demand, dated 26 Paus 1838 Fs. and affixed his thumb impression and signature by his own pen thereon and made it over to the plaintiff.

(3.) Mr. Bose however takes exception to the expression "handnote in suit" and urges that "handnote bunai dawi inaultalab" should be translated as "the hand- note which is the basis of the suit." He has also referred to para. 6 of the plaint where the cause of action is mentioned. That paragraph runs as follows: The cause of action arose on 26 Faus 1338 Fs. the date of the execution of the handnote and on 1 April 1932 when the demand was made for the last time. As the defendant resides at a place within the jurisdiction of this Court, hence taking into consideration the value of this suit, this suit has been instituted in this Court.