RISHABKUMAR MOHANLAL Vs. SINGAI MOTILAL KASTURCHAND

JUDGEMENT

(1.) THIS is a second appeal against the appellate judgment and decree of Mr. Pooran Chander, Additional District Judge, Jubbulpore, in Civil Appeal No. 11B of 1942, decided on 29th August 1942.

(2.) THE plaintiff who had recently attained majority brought this suit on 31st July 1941 to recover Rs. 2728-14-6. His case was that he was a minor till 10th October 1940 on which date he attained majority. During his minority he was carrying on money-lending through his adoptive mother Sethani Sukhrani Bahu and a duly appointed agent Singhai Komalchand. Plaintiff's (business name was "Rai Bahadur Shrimant Seth Mathuradas Mohanlal" and in all the money-lending transactions the documents were taken in this name but "marfat Singhai Munilal Khusalchand " i.e., by the agency of Singhai Munilal Khusalchand. According to the plaintiff, Rupees 2500 were lent to the defendant on 16th August 1996 and the defendant executed a hundi in the same of Rai Bahadur Shrimant Seth Mathuradas Mohanlal marfat Singhai Munilal Khusalchand, payable after 361 days. The amount was not paid within the time indicated in the hundi but on 8th August 1937 a second hundi in the same terms was taken from the defendant. Similarly, on 88th July 1938 a third hundi on similar terms was taken. Plaintiff alleged that no repayment was made towards this loan and that the last hundi taken on 28th July 1938 was lost. Plaintiff, however, claimed to bring the suit on the original transaction, pleading his minority to have limitation. He claimed us. 2600 as principal, Rs. 203-9-8 as interest and Rs. 25-5-3 as expenses incurred for sending a lawyer's notice to the defendant.

(3.) ON these facts the trial Court found that the hundis were in the name of Munnilal Khusalchand but the plaintiff was the undisclosed principal. It was held also that each hundi wiped off the earlier transaction, the hundis were not in the nature of acknowledgments, and that they were each time a complete novation of the earlier transaction. It was, however, held that the plaintiff had failed to prove when he was born and when he attained majority, and hence the suit was held to be time-barred. It was also held that the suit not being based on the lost hundi was not maintainable. The learned Judge was, however, of the opinion that even if the hundi was in the name of Munnilal Khusalchand shop, the plaintiff as an undisclosed principal would have been entitled to recover the money but for the fact that according to him the plaintiff was born in 1920 and the period of limitation was not saved by reason of his being a minor. It was held that the story of repayment pleaded by the defendant was not proved and the account books of the defendant were unreliable.