9911796707
TMI Blog1973 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... , was a registered firm, registered under the Indian Partnership Act in 1952. Before that it was a joint Hindu family firms, whereas Beni Madhav Prasad, Plaintiff No. 2, and Jagarnath Prasad, who was original plaintiff No. 7, were partners of the firm. Plaintiffs 2 to 6 were members of the joint Hindu Family of which plaintiff No, 2 was the Karta. Plaintiff Nos. 7 to 13 were members of another Joint Family of which plaintiff No. 7 was the Karta during his lifetime. He, however, died daring the pendency of the suit. Thereupon Shri Krishna Prasad, plaintiff No. 8, became its Karta. The business of the firm used to be conducted and managed by P. Ws. 7 and 8. The defendants first party, namely, the appellants, were members of the Hindu joint family governed by Mitakshra School of Hindu law. Defendant No. 1 was the Karta of the said joint family. whereas defendant No. 2 was his son and was aged only 5 years on the date of institution of the suit. Defendant No. 3 was the illegitimate son of defendant No. 1 and he was also aged 8 years when the suit was instituted. Defendants 4 to 6, who are defendant's second party, -- respondents 14 to 16 in this appeal. were also members of another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiffs impleaded defendants 2nd party in the suit. 3. In the suit three sets of written statements were filed. One was on behalf of defendant No. 1, the second was filed by the guardian-ad-litem on behalf of minor defendants 2 and 3 and the third one was on behalf of defendants 4 to 6, namely, second party. To a large extent their defence was common. They denied the validity of the execution and attestation of the two mortgage bonds. They also pleaded that no consideration, as mentioned in the bonds, was paid to defendant No. 1. While admitting that the defendants second party had separated from defendants 1st party, they asserted that the defendants second party had eight annas share in the Sahibganj properties., including the suit properties, which were in joint possession of the defendants 1st and second parties. The common defence further was that the suit as framed was not maintainable, as the plaintiffs Were not registered as money lenders under the Bihar Money Lenders (Regulation of Transactions) Act, 1939 (Bihar Act VII of 1939), hereinafter referred to as 'the Act'. The specific defence of defendants 4 to 6 was that defendant No. 1 was the man of reckless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing on behalf of the appellants, has assailed all the landings given by the trial Court and contended that on the evidence on the record those findings could not be sustained. First of all he placed before us the findings of the Court below regarding issue No. 4. He drew our attention to paragraph 14 of the judgment where the learned Judge, relying on the evidence of P. Ws. 14 and 15, found that the plaintiff were casual money lenders. In other words, they were not professional money lenders. Reference was made also to paragraph 15 of the judgment wherein it was held that the firm Lakhand Rhagat Ambika Ram, plaintiff No. 1, was a registered money lender, under the provisions of Section 4 of the Act on the 18th January, 1940. The mortgage bonds were executed in the names of the two partners, namely, P. Ws. 7 and 8, who were managing partners of the firm, who had entered into transactions on behalf of their firm, which was a registered money lender. Mr. Rajgarhia conceded that on the pleadings of the parties Section 5 of the Act was not relevant. Section 5 prescribes inter alia 9 per cent, per annum as the maximum rate of interest in the case of secured loans. In the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other...... Relying on the above observation learned counsel urged that in the present case the burden of proof was in the former sense and the burden was constant on the plaintiffs throughout the trial. He also pointed on that the above principle of law enunciated oy their Lordships was also relied upon by the Full Bench of this Court in Smt. Fula Devi v. Manglu Maharaj, (AIR 1969 Pat 294) (FB), where their Lordships, while dealing with the provisions contained in Section 4 of the Act, held that in view of the bar under the first paragraph of Section 4 of the Act, the onus to prove as a matter of law that the suit for recovery of loan was entertainable under Section 4 without registration was on the plaintiff. 8. In my opinion, the above observation of the learned Subordinate Judge was in the latte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the loan the learned Subordinate fudge ought not to have allowed the plaintiffs to lead evidence on the point. 10. On the other hand, Mr. J.C. Sinha, learned counsel appearing on behalf of the plaintiff-respondents, submitted that in the instant case the defendants have cross-examined P. Ws. 14 and 15 on the point of casual character. Therefore, they were fully aware about that. They were not taken by surprise. They could have adduced evidence to neutralize that part of the evidence of the plaintiffs but they did not choose to do so nor they filed any application in the trial Court stating therein that the point was not pleaded in the pleadings by the plaintiffs; therefore, they should not be allowed to lead evidence on that point, as the defendants were taken by surprise. In order to substantiate his submission he relied on a judgment of the Supreme Court in Nagubai Ammal v. B. Shama Rao, (AIR 1956 SC 593) where it was observed that evidence let in on issues on which the parties actually went to trial should not be made* the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. 11. Mr. Rajgarhia. however, contended that their Lordships of the Supreme Court in the cases referred to above were dealing with the cases where both parties actually went to trial. In other words, both parties examined and led evidence on the point. In the present case, although evidence was led on behalf of the plaintiffs, defendants did not lead evidence to counter-act the evidence of P. Ws. 14 and 15. because, according to Mr. Rajgarhia, the learned Subordinate Judge had erred in taking into consideration the evidence of P. Ws. 14 and 15 in the absence of specific pleading in the plaint by the plaintiffs that they were not professional money lenders. In that circumstance the evidence of P. Ws. 14 and 15 that the two loans were casual in character had no value in the eye of law. The said evidence ought to have been completely ignored. In that situation it was not necessary for the defendants to lead evidence in order to neutralise the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the creditor, the description of Jagarnath Prasad was mentioned as money lender, it could not be held that he was a professional money lender. Further, a person by occupation may be a money lender, but that does not stand as a bar to him in advancing money as an accommodation loan to his acquaintance. 15. Learned counsel then submitted that Ext. 7 was executed on the 22nd August, 1944, whereas Ext. 7/a was executed on the 4th February, 1946. That also indicates that the plaintiffs were not casual money lenders; on the other hand, they were frequently advancing loans. Therefore, it could not be held that they were casual money lenders. in my view there is no merit in this contention. Reference may be made to Sano Kashinath v. Patitto Sabuto, (AIR 1942 Pat 348) where Harries, C. J. and Manohar Lall, J. observed that an element of continuity and habit was essential to constitute the exercise of a profession or business. A man did not Become a money-lender merely because he might upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending, and the word 'business' impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karta and the plaintiffs 7 to 12 were members of a joint Hindu family with plaintiff No. 7 as Karta and after his death plaintiff No. 8 had become Karta and the partnership business was conducted and managed by plaintiffs 7 and 8. He also referred to paragraph 5 of the plaint wherein it was stated regarding execution of the mortgage bond dated the 22nd August, 1944 (Ext 7) by defendant No. 1 in the name of plaintiff No. 8. Similarly, in paragraph No. 7 it was stated regarding execution of the bond dated the 4th February, 1946, (Ext. 7/a) by defendant No. 1 in the name of plaintiff No. 7. On behalf of the plaintiffs learned counsel pointed out that Exts. 6/a, 6/h, 6/c and 26 were filed in order to establish that the plaintiff-firm had money lending licence. Ext. 6/a is the money lending certificate granted to the firm Lalchand Bhagat Ambika Ram on the 16th April, 1957, under Section 5 of the Money Lenders Act. 1938 (Bihar Act III of 1938). Ext. 6/b was also granted to the same firm on the 16th April, 1952, whereas Ext. 6/c was granted on the 1st April, 1946 to the same firm. Learned counsel contended, that those certificates were not relevant for the purpose of holding that the firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation-- Any officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section. According to the above provisions at the foot of Ext. 26 a certificate is appended by Girija Nand Prasad, Extra-clerk for Sub-Registrar dated 3-12-1957, the English version of which reads: As per application Nos. 171 to 173 copy prepared and after getting it signed and sealed it was made over to Sri Krishna Prasad, Sd. Girija Nand Prasad, Extra-Clerk, for Sub-Registrar, 3-12-1957 Apart from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter, in my opinion, the observation made by their Lordships in the case of Kamalbas Pandey is not applicable in the instant case. That apart, on the basis of Ext. 26, in my opinion, it would be safer to hold that on the 18th January, 1940, the licence was granted to plaintiff No. 8 in his individual capacity and the same was not granted to the firm. Therefore, the plaintiff No. 8, on the basis of the said money lending certificate, had advanced loan to defendant No. 1 on the 22nd August, 1944, under the mortgage bond (Ext. 7), but, in my opinion, there is no basis for holding about the other loan, which was advanced on the 4th February, 1946, by plaintiff No. 7 to defendant No. 1 under mortgage bond (Ext. 7/a). Reference may be made to Section 6 of the Money Lenders Act, 1938, which provides that a registration certificate granted under Section 5 shall, unless sooner cancelled under Section 19 be in force only for five years 'from the date on which it is granied. Therefore, the certificate, which was granted on the 18th January, 1940, as it would be found from Ext. 26, would not be effective for more than five years. In that view of the matter, the finding of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..... Whereas in the other bond dated the 4th February, 1946 (Ext. 7/a) the executant stated: I have not so far paid to you a single piece even towards either the principal or the interest of the amount borrowed previously by me from you under a registered rehani mortgage bond executed by me on 22-8-1944 I having stood in great need of money for meeting my family expenses and for carrying on business I have again borrowed this day from you a lump sum amount of ₹ 6,000/-Rupees six thousand ...... Learned counsel for the appellants submitted that those mortgage bonds were merely paper transactions. In fact, no consideration had passed. He referred to Ext. 1/a, which is the receipt dated the 5-9-1944, issued by defendant No. 1 in respect of the mortgage bond (Ext. 7). The receipt shows only cash payment of ₹ 9,000/- and the remaining ₹ 3,000/-, as earmarked for redeeming the mortgage bond of Girdharilal Dharam Chand. Mr. Rajgarhia pointed out that there is not mentioned as such in the mortgage bond (Ext. 7). On the contrary, it is stated therein by defendant No. 1 that he took the entire ₹ 12,000/-on the 22nd August, 1944. In my opinion, this submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven various other additional grounds for holding that in fact consideration had passed in paragraphs 18 to 21 of the judgment. In my view, he has given cogent grounds. It would be unnecessary to reiterate them here. Out of the money, which defendant No. 1 had received, he had constructed a double storied building on plot No. 149 bearing original holding No. 22 in Sahibganj Municipality, which was testified by P. VVs. 6, 11, 13 and 15. Ext. 15 is the petition dated the 17th August, 1944, and Ext. 16 is the plan, filed by defendant No. I to the Sahibganj Municipality for obtaining sanction for constructing a double storied building, which was constructed in 1045. Evidence was led on behalf of the plaintiffs to show that the name of Kishni Devi, first wife of defendant No. 1, who was dead all then, was engraved on the kalgi of the first floor of the building (vide P. W. 15). D. Ws. 2, 4, 6, 10 (defendant No. 1) and 14 (defendant No. 4) were examined on behalf of defendants iirst and second parties to prove that the double storied building was coming since a long lime. D. W. 6, however, stated in cross-examination that defendant No. 1 got erected a double storied budding at Sahibgunj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court on those issues. It was defendants second party, who were really aggrieved by the findings on those issues, but they have not come in appeal before this Court and, therefore, they were made respondents in this appeal. Their counsel, Mr. Sidheshwar Singh neither supported nor opposed the contentions raised on behalf of the appellants. Therefore, there is no merit in the contention of the learned counsel for the appellants regarding paramount title of defendants 4 to 6. 25. Now I advert to the finding of the learned Subordinate Judge on issues Nos. 5 and 6. It may be recalled that defendants 5 and 6 were minor sons of defendant No. 4. It has already been held that defendants 4 to 6 had no paramount title and interest in the suit properties. Therefore, there is no question of minor defendants 5 and 6 paying up any dues under the two mortgage bonds (Exts. 7 and 7/a) and the learned Subordinate Judge has rightly held so. Under these two issues the only question, which fell for consideration, was whether the two minor defendants, namely, defendants 2 and 3, were :n any way liable for the loans taken by defendant No. 1 Defendant No. 2, it may be recalled, was the minor son of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest, inclusive of the interest, for the period prior to the suit, in no way should exceed the principal amount of the two mortgage bonds, namely, ₹ 18,000/-. Defendants first party were directed to pay the decretal amount with costs within three months from the date of the order and in default of payment of the same within the period specified, the plaintiffs would be entitled to apply for final decree for the sale of the mortgaged properties or a sufficient part thereof and the sale proceeds thereof would be applied towards the satisfaction of the plaintiffs dues mentioned in the preliminary decree together with such amount as may accrue to the plaintiffs subsequently as interests and costs, and the balance, if any, would be paid to the defendants first party. In view of my finding that the suit of the plaintiffs was entertainable only to the extent of ₹ 12,000/- covered by the mortgage bond (Ext. 7), the finding with regard to the plaintiffs claim or ₹ 6,000/- covered by the mortgage bond (Ext. 7/a) is not in accordance with law and has got to be set aside. The finding of the learned Judge under issue No. 8 should be confined only to the claim covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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