Indian Kanoon - Search engine for Indian Law

20. Taking into consideration the recitals in the bond, the demand notices, the fact that there were floods in Azamgarh in 1890, and the direct and positive evidence of Phul Chand, we think there are no sufficient grounds to differ from the finding of the Court below to the effect that this sum of Rs. 1,600 was taken for legal necessity. As regards consideration, we are inclined to think upon the account-books, the oral evidence and the probabilities that it passed in full; but we find for reasons already given that the items of Rs. 325 and Rs. 1,600 only in the bond of 1891 and Rs. 266 only in the bond of 1898 are proved to have been for legal necessity. We may mention here that the learned Judge appears to have relied in considerable measure upon a judgment of this Court dated 16th February 1925 in first appeal No. 471 of 1921. That was a suit to which the plaintiffs were not parties to set aside a deed of lease which had been executed by Mt. Janki Kunwar in favour of certain persons on 16th November 1918. A part of the alleged consideration for that lease was a sum of money payable as interest upon the bond in suit, and it was held that there was legal necessity for taking that money. Now, in the first place, learned Counsel for the plaintiffs-respondents has been unable to show us under what section of the Evidence Act this judgment is admissible; and in our opinion it is inadmissible as evidence in this case. In the second place, as we have already said, the suit was not for enforcement of the bond now in suit, and the observations of the learned Judges at p. 340 of our paper-book seem to indicate that the learned Judges would have required stricter proof if the original mortgagees of the bond now in suit had been seeking to enforce that bond.