Decided on July 05,1952

PUKHRAJ Appellant
HARI SINGH Respondents


H. D. Ujjwal, J. - (1.)THIS is an appeal by Pukhraj against an order of the Collector, Jalore, dated 23. 4. 1951 rejecting the claim of the appellant filed under sec. 17 of the Court-of-Wards Act. The respondent Harisingh is a minor Jagirdar of Thikana Detan Kalan whose Estate is under the management of Court-of-Wards. The appellant submitted his claim according to sec. 17 of the Court-of-Wards Act for admission but the Collector, after holding the enquiry rejected the claim on the ground that the khatas Ex. P. 1 and P. 2 were merely acknowledgments could not be taken as fresh agreements.
(2.)I looked into the wordings of the Ex. P. 1 and P. 2. Ex. P. 1 clearly states that the amount of Rs. 3901/- was taken from the previous account and the deceased Hanwat Singh father of the present Jagirdar had agreed to pay interest at the rate of Re. 1/- per hundred per month and had signed it. I have also seen the previous account which is Ex. P. 3 which gives the details of the transactions that had taken place between the appellant and the deceased Hanwat Singh. This account contains Hanwat Singh's signatures at three places and I have no doubt that these signatures are genuine. Further, they have been proved by the witnesses who had attested these khatas and also by the Kamdar of the Thikana who was acquainted with the hand writing of the deceased Hanwat Singh. Last entry in Ex. P. 3 is dated Jeth Badi 3, Smt. 2004, when the account was settled and the balance was struck. Therefore, there was no question of the debt being time-barred. In such circumstances the Collector should not have rejected the claim on the ground that the khata Ex. P. 1 was merely an acknowledgement. The khata Ex. P. I contains an express promise to pay interest and it has been held in 1949 Nagpur, Page 231 that there is a clear distinction between an acknowledgement of a debt simplicitor and an acknowledgment coupled with a statement that the debt shall in future carry certain rate of interest. In the former case there is no promise to pay the debt and the promise to pay the debt can only be implied; in the latter case the statement that the debt shall bear interest means and can only mean that the interest shall be paid and, therefore there exists a promise to pay the interest in express terms, and if there is a promise to pay interest there exists clearly an agreement to pay principal. A suit therefore can lie on the basis of such an acknowledgment combined with the promise to pay the interest and the learned Collector has erred in rejecting such a claim upon which the suit can lie.
As regards Ex. P. 2, the appellant had neither produced the previous account from which it was shown as the balance, nor it contains any agreement to pay interest. Therefore, this could not be made the basis of a suit and had been rightly rejected.

I would, therefore, with the concurrence of my learned colleague, party accept the appeal and allow the claim of the appellant for Rs. 3901/- together with the interest at the rate of Re. 1/- per cent per month as stipulated in Ex. P. 1.

I would further remark that the learned Collector has observed in his order that the Court-of-Wards should have been made a party to the suit. I do not agree with him in his observation. It is really not a suit but only a claim filed by the debtor under sec. 17 of the Court-of-Wards Act and is supposed to be filed in the Court-of-Wards itself and there could be no question of making the Court-of-Wards a party to such a claim. .

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