Patna High Court
Babu Samarendra Narain Singh Choudhry ... vs Mahadeo Raut And Anr. on 27 July, 1921
Equivalent citations: 63IND. CAS.296
JUDGMENT Coutts, J.
1. This was a suit for recovery of a sum of money due on two promissory notes, one for Rs. 1,000, and the other for Rs. 193, dated the 28th of February 1915. The promissory notes were executed by Susila Sundnri Chaudhurain, the mother of defendant No 2 and the adoptive mother of defendant No. 1. The money was borrowed by Susila Sundari Chaudhurain to defray the expenses of the Gaya sradh of her deceased husband. The defendants contended that the promissory notes were rot genuine and valid or for consideration; they also contended that they were not for legal necessity, and that the estate could not be bound. The suit has been decreed in both the Courts below and the defendant No. 1 has appealed to this Court.
2. The first point urged is that there was no legal necessity because the defendant No. 1 had been adopted before the lady borrowed the money, be was, therefore, the proper person to perform the Gaya sradh, and, therefore, the expenses incurred by Susila Sundari for this purpose were not for legal necessity and could not bind the estate. It appears, however, that the defendant No. 1 was a boy of seven at the time the sradh was performed, and the learned District Judge before whom the case (same in appeal found that the lady had performed the sradh on behalf of the adopted son, who was too young to be capable of performing the ceremony. There is no doubt that a widow may perform the sradh where the son is too young to be capable of performing the ceremony; but it is urged that at the age of seven the son is capable and several texts have been quoted to show that even before a boy takes the sacred thread he can perform the ceremony. It seems, however, from the texts that this is unusual. In the present case the defendant No. 1 was too young to have been invested and, in my opinion, the learned District Judge wag justified in holding that he was too young to be capable of performing the ceremony. This contention, therefore, fails.
3. The next contention in that in the promissory note for Rs. 193, there is no stipulation for the payment of interest. Interest, however, has been allowed at 12 per cent. per annum till the date of the suit and future interest has been allowed at 6 per cent. It is urged that 6 per cent only should have been allowed under Section 80 of the Negotiable Instruments Act. Section 80 does not seem to have been considered by either of the Courts below and, in my opinion, this contention must prevail.
4. The last point urged is that there is no evidence to show whether so much money was required to perform the Gaya sradh. This contention, however, was not raised in either of the Courts below. It was a matter on which evidence would be necessary and consequently it is not such a plea as can be taken at this stage
5. For the reasons I have given the appeal succeeds only in regard to interest as indicated above. I would accordingly modify the decree of the lower Appellate Court to this extent. The respondents are entitled to their costs.
Macpherson, J.
6. I agree.