- (1.) AGAINST the judgment and decree of the District Judge, Ganganagar, dated the 22nd August, 1958, who had affirmed the judgment and decree of the Civil Judge, ganganagar, dismissing the suit for recovery of Rs. 4,300/-, a second appeal by the plaintiff was preferred to this Court and it came for hearing before Bhargava, j. , in whose opinion the appeal involved certain questions of law on which there is a divergence of judicial opinion and therefore the same has been referred to this division Bench for decision.
(2.) THE facts relevant for the decision of this second appeal may be briefly recalled. On 17th February, 1950, the plaintiff alleges, Ganpat, the father of the respondents, before us, borrowed a sum of Rs. 2,600/-and executed a 'khata' in the plaintiff's book of account bearing interest at the rate of Rs. 1/9/- per cent per month. Ganpat again borrowed a sum of Rs. 100/-on 10th April, 1951. The plaintiff admits that certain payments were made towards the cash transactions and on 12th, September, 1951, Ganpat after going through the accounts acknowledged his liability in the sum of Rs. 3,360/-, and in token thereof affixed his thumb mark in the plaintiff's book of account. After the death of Ganpat, it is alleged in the plaint para four that Hetram respondent paid sum of Rs. 300/ -. The document (Ex. 2.) however, says that the payment was made by Ganpat himself and this appears to be the correct position. Later on 18th July, 1952, Hetram as "karta" of his joint Hindu family, after examining the previous accounts, acknowledged his liability in the sum of Rs. 2,749/-and executed a 'khata' in favour of the plaintiff, and further agreed to pay interest at the rate of Rs. 1/9/per cent per month. The defendants paid nothing thereafter and the plaintiff was compelled to institute a suit on 14th July, 1955, for the recovery of the sum of Rs. 4,300/- including principal and interest. The suit was resisted by the defendants. It was denied that Ganpat borrowed any money from the plaintiff. Hetram further averred that he had merely put his thumb mark on the 'khata' contained in the plaintiff's book of account as a result of undue influence of the plaintiff and that too during his minority. He repudiated any stipulation with regard to the rate of interest and also raised the plea of limitation. The defendants objected to the admissibility of the three 'khatas' on the ground that they were not stamped in accordance with law.
(3.) ACCOMPANYING the plaint, the copies of three documents, entries from the book of accounts dated 17-2-1950, 12-9-1950 and 18-7-1952, were presented to the court. The inspection of the originals of these three documents was allowed to the defendant's counsel on 3rd September, 1955. It is alleged by the plaintiff that on 24th September, 1955 the book containing these three documents was lost. The plaintiff filed an application on 24th September, 1955 stating the circumstances in which his book of account was lost.;