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1911 DIGILAW 299 (ALL)

Hukum Singh v. Khunni Lal

1911-11-09

CHAMIER, KARAMAT HUSAIN

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JUDGMENT : CHAMIER, J. The appellants in this case alleged that they and one Hardeo Das, brother of their grandfather, were members of a joint Hindu family, that the defendant-respondent, Khunni Lal, in 1886, executed two bonds in respect of the balance due by him in favour of Hardeo Das who was the managing member of the family. Hardeo Das died in 1900 or 1901, and the appellant and the second defendant Hotilal became the owners of the family business that after the death of Hardeo Das there were further transactions between the family and Khunni Lal, and eventually on November the 3rd, 1906, it was found that Rs. 5,728 were due to the appellants by Khunni Lal, and on November the 13th, 1906, Khunni Lal acknowledged that he was indebted to them in that amount, and he agreed to pay it in eleven instalments, the first to be paid on Baisakh Sudi 15th, Sambat 1964, corresponding with May 22nd, 1907. The appellants admitted in their plaint that the entry in their books, dated November the 13th, 1906, which they said was signed by Khunni Lal, was in fact an agreement and should have borne an eight-anna stamp. They expressed their willingness to pay the deficiency in the stamp duty and the penalty, and they prayed for a decree for specific performance of the agreement evidenced by the entry in their account-books and further recovery of Rs. 728, the amount of the first instalment, also for interest thereon, and for costs. Khunni Lal admitted that he had executed documents long ago in favour of Hardeo Das, but he denied that he had had any further money-dealings with the family of the appellants, and in particular he denied having signed the entry on which the appellants relied as an agreement and acknowledgment of indebtedness. The court below held that the entry in the appellant's books was a agreement, and should have borne an eight-anna stamp, and it levied the duty and penalty accordingly. It held that the claim for the recovery of Rs. 742 was barred by limitation, and that the appellants had failed to prove that Khunni Lal signed the entry in the books. Accordingly it dismissed the suit. It held that the claim for the recovery of Rs. 742 was barred by limitation, and that the appellants had failed to prove that Khunni Lal signed the entry in the books. Accordingly it dismissed the suit. In appeal it is contended that the court below was wrong in rejecting the evidence adduced by the appellants to prove that Khunni Lal signed the entry in the appellant's books, dated November the 13th, 1906. The learned advocate for appellants has taken us through all the evidence on this part of the case. But in the view which we take of the question of limitation we think it unnecessary to express any opinion on the question whether it is proved that Khunni Lal signed the entry. There can be no doubt that Khunni Lal executed two bonds in 1886 in favour of Hardeo Das. What happened between that and 1902, is not shown. The appellants have produced books which show that in Katik, Sambat 1959, corresponding with 1902, a debit balance of Rs. 3,649-8-0 against Khunni Lal was brought forward from an old account-book which was not produced at the trial, but seems to have been tendered by the appellants after the Subordinate Judge wrote his judgment in this case. There are various entries at pages 52 and 53 of the appellant's books which, if genuine, show that Khunni Lal acknowledged that he was indebted to the plaintiff in a certain amount in 1959. The only evidence that Khunni Lal signed the book in 1959 is the statement of the plaintiff-appellant Hukam Singh. Then we have an alleged further acknowledgment by Khunni Lal in 1961 that he was indebted to the appellants in the sum of Rs. 4,800, in Sawan 1961. The evidence that Khunni Lal signed this acknowledgment is the statement of the plaintiff-appellant Hukam Singh and the statement of the witness named Bakhshi Ram. But there is nothing to show the alleged acknowledgments of 1959 and 1961 relate to a debt the recovery of which was not barred by limitation. As already stated, we know nothing of the transaction between the parties between 1886 and 1902. The alleged acknowledgment of November, 1906, is in our opinion something more than an acknowledgment. It contains a proviso to pay Rs. 5,728 in 11 instalments, and the alleged signature of Khunni Lal is attested by two witnesses, Ram Bakhsh and Hukam Singh. As already stated, we know nothing of the transaction between the parties between 1886 and 1902. The alleged acknowledgment of November, 1906, is in our opinion something more than an acknowledgment. It contains a proviso to pay Rs. 5,728 in 11 instalments, and the alleged signature of Khunni Lal is attested by two witnesses, Ram Bakhsh and Hukam Singh. But even if this entry of November, 1906, is, as we think, a definite promise to pay, it cannot avail the appellants, for the promise, though in writing, is not registered, and unless it relates to a debt, the recovery of which was not barred by limitation, it cannot be enforced. There is nothing whatever to show that any of the acknowledgments or the promise to pay the debt in November, 1906, related to debts which could have been recovered. The claim of the appellants is therefore plainly barred by limitation so far as it relates to the sum of Rs. 728. As to the prayer for a decree for specific performance of the agreement of November, 1906, it seems to us that it must be rejected. The case clearly falls within section 21(a) of the Specific Relief Act. It is a contract for the non-performance of which compensation in money is an adequate relief. The only case which in any way helps the appellant's contention that such a claim for specific performance can be allowed is an American case, the report of which is not available, in which it appears that a person was compelled to perform an agreement to give another promissory note in place of one which he had done away with. 2. The 9th ground of appeal is that Musammat Janki, daughter of Hardeo Das, is not a necessary party, and that she should not have been allowed any costs in the court below. 3. No one has appeared for her in this Court. She seems to have thrust herself into the case without any reason, and we do not understand why the court below allowed her any costs. We allow the appeal so far that we set aside that portion of the decree of the court below which allows costs to Musammat Janki. She will pay her own costs in both courts. As against the remaining respondents the appeal is dismissed with costs.