Jag Sahu and Another vs Rai Radha Kishun and Others

Adami, J.—This appeal arises out of a sun in which the plaintiffs sought to recover Rs. 14,500, the principal and interest, dus on a simple mortgage bond. The plaintiffs alleged that the bond was executed on the 21st October 1902 by Musammat Bechu Koer, widow of Rai Gudur Sabai, in favour of Tulshi Das and Harakh Das, who, by a deed dated 13th February 1909, assigned it to the plaintiff. The consideration for the bond was a payment of Rs. 775 bearing interest at the rate of Rs. 2 per cent, per mensem with six-monthly rests, and the document shows that the objects of the loan were:

(a) to re-pay Rs. 125 due to Dr. Leakat Hussain on a hand-note;

(b) to re-pay Rs. 204 due to Dumri Das on a hand-note

(c) to re-pay Rs. 275 lent by Damri Das, and

(d) to provide the widow with Rs. 171 in cash.

The defendants, the minor sons of the late Rai Mahabir Prashad who succeeded to the estate of Rai Gudur Sahai as nearest reversionary heir, contested the suit denying that the bond was genuine or that consideration passed. They asserted that, even if the bond was executed by Musammat Bechu Koer as alleged, she was kept in ignorance of its contents and that there was no legal necessity for the borrowing, while they described the rate of interest stipulated for in the bond as being "contrary to law and equity and altogether improper" and contended that the estate of Rai Gudur Sabai could not be bound by it.

The learned Subordinate Judge found that the bond was genuine and was duly executed by Musammat Bechu Koer, who understood its contents and received Rs. 171 in cash, the balance being set off against the antecedent debts mentioned in (a), (b), (c) above. He held that at the time the loan was taken there was pressure on the estate and money was wanted. The deed of assignment of the bond to the plaintiffs was also found to be genuine and for consideration. In considering, however, the items making up the sum of Rs. 775, the Subordinate Judge decided that only the items (a) and (b) could be held to be debts incurred by Musammat Bechu Koer for legal necessity. With regard to item (c) it was found that the sum of Rs. 275 bad been borrowed with the object of recovering property sold for arrears of assess, and a debt incurred for that object by a Hindu widow could not bind the reversionary heirs, while item (d) Rs. 171 was taken in cash partly if not wholly for the purpose of paying cesses and, therefore, could not bind the defendants.

With regard to the interest claimed, the lower Court found that there was no evidence to show that the pressure for re-payment of the debts was so great as to compel Musammat Bechu Koer to agree to pay compound interest at the high rate stipulated and that the plaintiffs had failed to prove that she could not get money at a lower rate. The Subordinate Judge awarded simple interest at the rate of 24 per sent. As a result the plaintiffs obtained a decree only for re-payment of the items (a) and (b), namely, Rs. 329 with simple interest as above stated.

The plaintiffs have appealed to this Court on the ground that the lower Court erred in finding that the sums of Rs. 275 and Rs. 171 [items (a) and (d)] were not borrowed for legal necessity, and in charging the rate of compound interest under the bond into simple interest. There is a cross-objection by the respondents that the findings of the Subordinate Judge as to the genuineness of the bond and deed of assignment were wrong, and that, even it the bond was duly executed, there was no legal necessity for the debt due to Dr. Leakat Hussain or for the hand note executed in favour of Damn Dap, and that there had wrongly been thrown on the defendants the onus of proving absence of legal necessity.

We have carefully considered the evidence as to the execution of the bond and of the deed of assignment and the passing of consideration in both cases ; it is quite one-sided and fully proves not only that the two documents were duly exeanted as alleged by the plaintiffs, but also that consideration passed, and that Musammat Beohu Koer was congisant of the terms and conditions of the bond.

The existence or absence of legal necessity for each one of the items included in the bond has been questioned by either one or the other of the parties to this appeal and cross-objection.

It is quite clear from the oral and documentary evidence that the debt of Rs. 125 to Dr. Leakat Hussain was incurred for his fees and medicine during the illness of Musammat Beohu Koer''s daughter, Mmammat Bhagwati Koer, and there is no doubt that there was legal necessity for the debt.

Similarly in the case of the debt due to Dumri Das of Rs. 204, the evidence goes to show that the money was borrowed for lodging and other necessary family expenses. At the time these loans were taken, Musammat Beohu Koer was involved in litigation with her daughter in law regarding Probate of the Will of Rai Gudur Sabai and by reason of this dispute, though the property left by her husband brought in an income of over a lakh yearly, rents could not be collected, while it seems that Bai Gudur Sahai left debts amounting to five lakhs. We are satisfied that due inquiry was made by Darari Das as to the necessity for the loan and that Musammat Beohu Koer was at that time in need of money to supply the necessities of life.

The respondents cross-objection that these two items of debt were not incurred for legal necessity cannot be upheld.

With regard to the two other items, which have been disallowed on the same ground, namely, that the money was borrowed to satisfy a personal obligation, to pay cesses or to get the sale of a portion of the estate sold for arrears of cesses set aside, the learned Counsel for the appellants, while agreeing that it is settled law that the payment of cesses by a Hindu widow is a personal obligation which cannot bind the reversioners, contends that there may be cases where such payment would become a legal necessity. He suggests a case where the whole estate is about to be sold for arrears of cesses so that after the sale the widow will have no source of income from which to meet the daily necessities of life or to pay off debts the payment of which is a legal necessity, and urges that in such a case the payment of the cess would be a legal necessity. That is an extreme case and does Dot fit in with the circumstances of the present one, and we see no reason to depart from the well-settled principle that the reversionary heirs of a Hindu widow are not bound by a debt incurred by her, for. the payment of cesses.

It is next contended by Mr. San for the appellants that, with regard to the loan of Rs. 275, only Rs. 200 was to be spent on payment of nesses and the rest was for family purposes, The evidence, however, as to the portion of the total sum which was to be taken for cesses is uncertain, while Dumri Das from whom the money was taken says that the whole sum was for payment of cesses.

We thus uphold the findings of the lower Court with regard to all four of the items.

We finally come to the question whether the lower Court was right in reducing the interest from compound to simple interest. The learned Subordinate Judge held that it lay on the plaintiffs to prove that the pressure on the estate was so heavy, and the difficulty of getting money at a less rate of interest was so great, that the compound interest agreed on in the bond was reasonable. He relied on Harmnnoje Narain Singh v. Ramprosad Singh 6 C.L.J. 462.

In the case of Nawab Nazir Begam v. Rao 6 C.L.J. 462 Raghunath Singh 50 Ind. Cas. 434 : 41 A. 571 : 36 M.L.J. 521 : 17 A.L.J. 591 : 23 C.W.N. 700 : 21 Bom.L.R. 484 : 26 M.L.T. 40 : 30 C.L.J. 86 : (1919) M.W.N. 498 : 1 U.P.L.R. (P.C.) 49 : 11 L.W. 188 : 46 I.A. 145 their Lordships of the Privy Council decided that it is incumbent on those who support a mortgage made by a manager of a joint Hindu family to show not only that there was a necessity to borrow but that it was not unreasonable to borrow at a high rate of interest, and that decision has been followed by the Allahabad High Court in Makrand Singh v. Kallu Singh 50 Ind. Cas. 640 : 41 A. 581 : 17 A.L.J. 647 : 1 U.P.L.R. 73. The same principle would apply even more in the case of a mortgage by a Hindu widow.

In the case of Prem Sukh Das v. Ram Bhujawan Mahto 52 Ind. Cas. 964 : (1919) Pat. 461 : 1 P.L.T. 34 my learned brother, sitting with Coutts, J., considered the case of Nawab Nazir Begam v. Rao Raghunath Singh 50 Ind. Cas. 434 : 41 A. 571 : 36 M.L.J. 521 : 17 A.L.J. 591 : 23 C.W.N. 700 : 21 Bom.L.R. 484 : 26 M.L.T. 40 : 30 C.L.J. 86 : (1919) M.W.N. 498 : 1 U.P.L.R. (P.C.) 49 : 11 L.W. 188 : 46 I.A. 145 , and pointed out that there the want of necessity for the high rate of interest was put forward in the written state-ment of the defendants and held that the ruling of the Judicial Committee applied where want of necessity was pleaded.

We have then to look at the written statement of the defendants. There they aver that ''the rate of simple and compound interest is altogether contrary to law and equity and is altogether improper. It is never fit to be enforced in any way nor are the plaintiffs entitled to get the same. Moreover, these defendants beg to submit that the estate of Rai Gudur Sahai is not and cannot be bound by such heavy rate of interest, especially after expiration of such a long period the ''rate of simple and compound interest cannot be allowed."

This is not an averment of want of necessity for the high rate of interest, it is a contention that the interest is unconscionable, and it has not been found to be such. There is in fact no plea in the written statement that there was a want of necessity for the high rate of interest and there was no issue framed on this point.

Under the circumstances, following the ruling of this Court in the case of Prem Sukh Das v. Ram Bhujawan Mahto 52 Ind. Cas. 964 : (1919) Pat. 461 : 1 P.L.T. 34, we must hold that in the absence of a plea by the defendants that there was no necessity for compound interest, the lower Court was wrong in holding; it incumbent on the plaintiffs to prove that there was necessity and that the rate was reasonable.

As a result the cross-objection is disallowed and the appeal allowed in part. The decree of the lower Court will be modified to this extent that in place of simple interest at 2 per cent. per mensem compound interest at the rate claimed will be allowed. The appellants will get costs proportionate to their success.

Das, J.

I agree. I desire, however, to express my opinion on the question whether, when the mortgage transaction is established against the estate as having been entered into for a justifying necessity, it is open to the Court to reduce the rate of interest mentioned in the band on the ground that there was no necessity to borrow at the rate of interest mentioned in the bond. In dealing with this question, it is necessary that there should be no confusion between the different principles on which the Courts of law have reduced the rate of interest. Acting on one principle, the Courts of law have reduced the rate of interest when they have been of opinion that the agreement to pay an exorbitant rate of interest was the result of undue influence on the part of the money-lender. On this point, I ex-pressed my opinion as follows in a recent case [Prem Sukh Das v. Ram Bhujawan Mahto 52 Ind. Cas. 964 : (1919) Pat. 451 : 1 P.L.T. 34 : "When all the oases relating to money-lending transactions are examined, it will appear that the Court has relieved the debtor by reducing the rate of interest only when it has been satisfied that the lender was in a position to dominate the will of the borrower and that the ''bargain'' was unconscionable within the meaning of Section 16 of the Contract Act. It is only the concurrence of these two elements that can justify the Court in granting relief to the borrower." I still adhere to the view which I expressed in the case of Prem Sukh Das v. Ram Bhujawan Mahto 52 Ind. Cas. 964 : (1919) Pat. 451 : 1 P.L.T. 34 and I am still of opinion that, in the absence of these essential elements, the Court is not at liberty to make a new contract for the parties. It is sufficient to say that in this case it has not been found that the money-lender was in a position to dominate the will of the borrower.

The other principle is that the Court is at liberty to reduce the rate of interest if it is not shown that there was any necessity to borrow at the rate of interest mentioned in the band. In other words, the necessity for the loan being established, it is still open to the Court to enquire into the necessity for the rate of interest. I desire to discuss the question whether there is any justification for this view in Hindu Law and how far the decisions of the Judicial Committee have gone in this matter.

It may be taken as established that under the Hindu Law, a Hindu widow has a special estate in the properties left by her deceased husband which cannot be described by any of the well-known terms of the English Law of real property. For certain purposes, however, her powers are as wide as those of a full mala owner. The restriction on her power of alienation is not an absolute one. For certain purposes denominated necessary purposes, she is competent to alienate the estate and to bind that estate in the hands of the reversioners. This is admitted; but what is not admitted is that she can bind the estate in the hands of the reversioners for the payment of interest agreed to be paid by the widow without further proof of necessity. It is admitted that the necessity supports the alienation for the principal sum secured, bat it is denied that the alienation stands good for the entirely of the interest due in respect of the transaction without proof of further necessity.

It is remarkable that very little is to be found in the ancient texts on the subject, but this is because, as Mr. Myane suggests, restriction under the Hindu Law was the rule, absolute power the exception. Bat it is undoubted that the power of the Hindu widow to deal with the estate is placed on the same footing as the power of the managing member of a joint family. It is certain that the power possessed by a Hindu widow is not less, though it is not more, than that which resides in the managing member of a joint family, I can find no text that deals with the question of interest in relation to the transaction of the managing member of a joint family, but we may usefully consider in this connection the question of the liability of a son to pay the interest due in respect of a debt incurred by his father. In referring to this branch of the law, I am not forgetting that the liability of a son to pay the debt of his father arises only on the death of his father and is determined on a somewhat different principle from that adopted to fix his liability on the transaction of his father as the managing member of the joint family. But, in my view, once the liability is ascertained, the question of interest must stand on the same footing, whether you seek to make him liable on the debts of his father after the death of his father, or whether you seek to make him liable on the transaction of his father as the managing member of a joint family. It is, in my view, very important to see whether there are any ancient texts dealing with the question of interest. If it is established that a son, where he is bound to pay the debt of his father, is bound to pay the same with the interest agreed to be paid by the father,--if it is not open to him to say, "I may be liable to pay the principal, but there is no reason whatever why I should be compelled to pay the excessive interest agreed to be paid by my father," I do not see on what principle it can be said that a son sued as a member of a joint family on a translation entered into by his father as the manager of the family can challenge the rate of interest where he admits the necessity for the loan itself, except, as I have said before, on the ground of undue influence. Once the liability of the joint family for interest on a transaction by the manager thereof is established, there is no escape from the conclusion that the estate is equally liable for interest on a transaction by the widow, for, as I have said before, the power of a Hindu widow to deal with the estate is placed by the Hindu lawyers on the same footing as the power of the manager of a joint family. In my view, the liability of the estate for interest due is the same, whether that liability arises on the transaction of a Hindu widow or of the manager of the joint family, and is co-extensive with the liability of a son in respect of the debt incurred by his father,

There is a text of Vrihaspati to the effect that sons must pay the debt of their father, when proved, as if it were their own, that is with interest see Shayama Charan Sarkar''s Vyavastha Chandrika, Volume I, page 241). This rule is of course subject to exceptions as regards immoral debts, which need not be considered. According to the text, therefore, debt includes such interest as was agreed to be paid by the debtor. The liability of the son to pay the debt being established, he must discharge it, as if the debt were his own, that is to say, with such interest as was agreed to be paid by the father. In my view, the liability of the reversioners stands exactly on the same footing. Once the necessity for the debt is established, it must be assumed that the widow completely represented the estate, and thereafter it is the estate that is liable to discharge the debt as if the debt was incurred by it. Once the complete identity of the widow with the estate is established, it is difficult to see on what principle the estate can be allowed to take up a position different from the widow herself, In my view, ones the necessity for the debt is established, the estate cannot be heard to put forward a defence not available to the widow herself. The original necessity supports the transaction and binds the estate, into whoever''s hand the estate may come.

It is necessary now to consider how far the cases have gone. The foundation of all the decisions of course is the case of Hunoomanpersand Panday v. Musammat Babooee Muntaj Koonweree 6 M.I.A. 393 : 18 W.R. 81n. : Sevestre 258n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147. After laying down under what circumstances the manager for an infant heir can charge an estate not his own, Lord Justice Knight Bruce proceeded to say as follows: Their Lord-ships think that the lender is bound to enquire into'' the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged, sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under such circumstances, he is bound to see to the application of the money." It seems to me that this case is no authority for the proposition that the creditor must not only prove the necessity for the loan, but also the necessity for the rate of interest. All that the creditor is required to do is to inquire into the necessities for the loan and to satisfy himself that the borrower is acting in the particular instance for the benefit of the estate. There is no suggestion at all that, once the creditor is satisfied as to the necessity for the loan, he must solemnly proceed to inquire whether the loan could be secured at a lower rate of interest elsewhere. The necessity for the loan being established, it must follow that the loan could not be secured on better terms elsewhere, for, if it could, there is no reason why the widow, who, it must be remembered, completely represented the estate, and was entitled to the income of the estate for her lifetime, should agree to reduce her income by taking a loan on more onerous terms. Speaking with great respect, it seems to me that the discussion of this question has missed one important point, and it is this, the Court is entitled to presume the existence of any fact which it thinks likely to have happened, regard being bad to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Section 114, Evidence Act The simple question is this, a person has an opportunity to borrow at a lower rate of interest, is it likely that he would borrow at a higher rate of interest? Is it the common course of natural events for a person to borrow at a higher rate of interest, when he has the opportunity to borrow on less onerous terms? There is a general rule of universal application that a man having a right to act in either of two ways shall be assumed to have acted according to his interest. This rule is founded on the still more general rule that a person is assumed to know his own interest. If it is permissible to make the assumption in the case of a Hindu widow taking a loan for a justifying estate necessity, it is difficult to see why it should be for the creditor to show that the borrower could not have obtained the loan on more advantageous terms elsewhere. Only in two oases would the assumption be wrong, firstly, when there is no justifying necessity for the loan, for then the widow would be eager to obtain the loan on whatever terms she may secure, and secondly, when the creditor is in a position to dominate, the will of the widow, for then her consent to take the loan on onerous terms is not a free consent. In my view, the necessity for the loan being established and there being no proof that the creditor was in a position to dominate the will of the borrower, it must follow in the common course of natural events that the borrower could not have secured the loan on more advantageous terms elsewhere.

There is another matter which must be considered in this connection. According to the decision of Lord Justice Knight Bruce, the creditor is amply protected so long as he makes the enquiry and honestly satisfies himself that the necessity exists. Now, what form is this enquiry to take? Is he expected to make a tour through the principal banking houses in the town or is it enough for him to ask the borrower whether he could not secure the loan on more advantageous terms elsewhere. My object in raising this question is to show that either the undertaking must bean impossible one for the creditor, for the banking houses would be within their rights in refusing to disclose their business to a rival, or the enquiry must, in the nature of things, degenerate into an absured formality and would consist in the lender putting certain formal questions to the borrower. When Lord Justice Knignt Bruce said that the lender is bound to enquire into the necessities for the loan, he never meant to lay down that the lender must proceed further and solemnly satisfy himself as to what he is entitled to assume, namely, that in the common course of natural events, the borrower would not agree to his terms if he could secure the loan on better terms elsewhere.

There is one argument, however, which I must not omit to consider. It is said that if the properties hypothecated afford a sufficient security for the loan, there is clearly no necessity to borrow at an exorbitant rate of interest. It must be remembered that the question under dissuasion arises only in connection with the dealings of qualified owners, and in dealings by qualified owners it can never be said with confidence that the securities offered by him or her are a good or sufficient security. A creditor lending money to a qualified owner lends with a certainty of knowledge that litigation will follow, and, when it is remembered that the costs allowed by our Courts are only a small proportion of the costs actually incurred in prosecuting the claim through the tedious processes of Court after Court, when it is remembered that it takes years for the creditor to realize his money, during which time every procedure known or unknown to law is resorted to for the purpose of delaying or defeating and, in any event, harassing the creditor, the injustice of reducing the interest agreed to be paid becomes manifest. If there were no later decisions of the Judicial Committee to guide or control us, I would unhesitatingly hold that once the necessity for the loan is established, there is no power in the Court to reduce the interest except on proof that the lender was in a position to dominate the will of the borrower, or that the " bargain " was unconscionable within the meaning of Section 16 of the Contract Act.

The first case which I ought to consider is the case of Hurro Nath Rai Chowdhuri v. Randhir Singh 6 M.I.A. 393 : 18 W.R. 81n. : Sevestre 258n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147. The interest agreed to be paid in that case was 18 per cent. per year. With reference to the interest charged, the High Court said as follows: "We do not think that the plaintiff is entitled to this high rate of interest as a charge upon the estate. But we are of opinion that the ends of justice would be quite met by allowing him interest at the rate of 12 per cent. per annum * * *." The passage cited leaves no doubt in my mind that the decision rested, to quote the words of Lord Phillimore in the case next to be cited, " upon a supposed discretion in the Court or an inference by the Judges as to the sum which would be sufficient to compensate the mortgagee." It is now established that there is no such discretion in the Court, and that the Court in not at liberty to make a new contract for the parties. The decision of the Judicial Committee on appeal was in these words: "Was there a necessity to borrow at the rate of 18 per cent? That is a question to which he ought to have applied his mind; and if it were unreasonable to suppose that the widow could not borrow the money at a less amount than 18 per cent, he ought not to have charged her that interest. Their Lordships think, therefore, that the High Court was right in not allowing interest as against the estate at a higher rate than 12 per cent. " It may be said that the Judicial Committee accepted the view of the High Court in the matter, a view which did not commend itself to Lord Phillimore in the case which I must next consider. But it is impossible to ignore that the Judicial Committee did cast on the lender the duty of considering the propriety of charging interest at the rate claimed by him. If there was nothing in the later decision of the Judicial Committee to suggest that a different rule should be adopted, I would, with all humility, be bound to give effect to that decision, whatever my own view may be in the matter.

The next case is the case of Nawab Nazir Begam v. Rao Raghunath Singh 50 Ind. Cas. 434 : 41 A. 571 : 36 M.L.J. 521 : 17 A.L.J. 591 : 23 C.W.N. 700 : 21 Bom.L.R. 484 : 26 M.L.T. 40 : 30 C.L.J. 86 : (1919) M.W.N. 498 : 1 U.P.L.R. (P.C.) 49 : 11 L.W. 188 : 46 I.A. 145 (P.C.). The ''written statement filed in that case specifically denied that there was any necessity to borrow the money at the rate of interest mentioned in the bond. This will appear from the judgment of the High Court reported as Rao Raghunath Singh v. Nazir Begam 19 Ind. Cas. 639. With reference to this specific denial in the written statement, Lord Phillimore delivering the judgment of the Judicial Committee said as follows: "In the view which the High Court took of this plea, a view from which their Lordships fee no reason to differ, it made it open for the defendants to contend that though the necessity for borrowing the principal sum was accepted, there was no necessity to borrow on the very onerous terms of this mortgage. This line of defence being thus open to the defendants, the principles laid down by this Board in Burro Nath Rai Chowdhuri v. Randhir Singh 18 C. 311 : 18 I.A. 1 : 15 Ind. Jur. 34 : 5 Sar. P.C.J. 642 : 9 Ind. Dec. 207 and in Nand Ram v. Bhupal Singh 13 Ind. Cas. 5 : 8 A.L.J. 1294 : 34 A. 126 apply."

In my view, it is impassible to misunderstand the decision of the Judicial Committee. The principled laid down in the oases sited do not apply, if the line of defence is not open to the defendants, and such a line of defense is not open to the defendants if it is not specifically raised in the written statement. I take it as settled by the Judicial Committee in this case that the plaintiff is not called upon to prove the necessity for the rate of interest unless he is required to do so by the defendant. To this extent then the Judicial Committee has encroached on the rule which I find established on principle, namely, that the necessity for the loan being found to exist, and there being no proof that the lender was in a position to dominate the will of the borrower, the necessity for the rate of interest must be assumed to exist until the contrary is shown. On this case I am bound to hold that if the defendant does specifically deny the necessity for the rate of interest, but not otherwise, the Court is entitled to, and even bound to, investigate into the necessity for the rate of interest, and to reduce the interest if it is not satisfied that there was a necessity for the rate of interest.

I now come to the last case, the case of Manna Lal v. Karu Singh 66 Ind. Cas. 766 : 1 P.L.T. 6 . The judgment of the High Court, so far as I know, has not been reported, but I have examined the original records of the case and I find that the High Court reduced the rate of interest in this case on the ground that the bargain as to interest was unconscionable on the face of it and that, there'' fore, the Court was at liberty to reduce the rate of interest. The exact words of the High Court were as follows: "As regards issue No. 5, there can be no doubt that under the provisions of Section 74, Contract Act, the stipulation for enhanced compound interest is a penalty. The unconscionable character of the bargain is apparent on the face of it, and we are, therefore, clearly of opinion that the stipulation in the contract cannot be enforced and that all that can be decreed is the principal of the two bonds, with simple interest at the original bond rate of 18 per cent. " It is this view which prevailed in the Judicial Committee. Lord Phillimore delivering the judgment of the Judicial Committee said as follows: There is, however, a question as to interest, as to which their Lordships are inclined to agree with the view taken by the High Court. " His Lordships then quoted with approval the decision in the case of Nawab Nazir Begam v. Rao Raghunath Singh 50 Ind. Cas. 434 : 41 A. 571 : 36 M.L.J. 521 : 17 A.L.J. 591 : 23 C.W.N. 700 : 21 Bom.L.R. 484 : 26 M.L.T. 40 : 30 C.L.J. 86 : (1919) M.W.N. 498 : 1 U.P.L.R. (P.C.) 49 : 11 L.W. 188 : 46 I.A. 145 and concluded as follows: "These principles must be applied to the present oases. In conformity therewith, the necessity for the high rate of interest secured by these bonds must be proved, if it is to stand. And in this matter their Lordships are not disposed to interfere with the view taken by the High Court." This decision, in my judgment, cannot be read as having departed either expressly or by implication from the principle laid down in the case of Nawab Nazir Begam v. Rao Raghunath Singh 50 Ind. Cas. 434 : 41 A. 571 : 36 M.L.J. 521 : 17 A.L.J. 591 : 23 C.W.N. 700 : 21 Bom.L.R. 484 : 26 M.L.T. 40 : 30 C.L.J. 86 : (1919) M.W.N. 498 : 1 U.P.L.R. (P.C.) 49 : 11 L.W. 188 : 46 I.A. 145 .

On an anxious consideration of the decisions of the Judicial Committee, I hold that the question as to the necessity for the rate of interest does not arise and ought not to be gone into, unless the defendant by his written statement specifically raises that question. In this case the defendants did not raise that question, and, therefore, the Court below erred in going into that matter.

I agree with the order proposed by my learned brother.