JUDGMENT

Rampini and Pargiter, JJ. - The defendants in this case executed a mortgage bond in favour of the plaintiff on the 29th Magh, 1291 (10th February 1885) for a sum of Rs. 17,000 payable in 34 yearly instalments of Rs. 500 each. The terms of the bond were that if any instalment remained unpaid, then "all the instalments were to be ineffectual" and "the whole amount was to become due with interest at the rate of 1 per cent, per month after the first default of payment of the instalments." It is admitted that the instalments were paid up to the Bengali year 1295. Then, a default took place. Only Rs. 300 were paid that year. Constant defaults were subsequently made. According to the plaintiff no further instalment was ever paid in full, but the defendants made payments to them partly on account of parts of the instalments and partly on account of the interest accruing at the rate of Rs. 1,764 per annum on the whole balance then due. These payments continued up to 1305, after which no payments were made and this suit was instituted. The defendants do not deny that default was made in payment of instalments. But they allege that they paid sums amounting to Rs. 1,114 in excess of what the plaintiffs admit to have received, and on their behalf it has been contended that the payments they made were partly on account of instalments due, some of which they paid in full, and partly on account of interest due on the unpaid instalments.

2. The Subordinate Judge decided that the payments made were as alleged by the plaintiff; He found that the defendants had not proved that they had paid the sums amounting to Rs. 1,114 averred. by them to have been paid. But he found that there had been a waiver on the part of the plaintiffs by the acceptance by them of instalments after they had become due. He accordingly found that the plaintiff's suit was premature. At the same time he, somewhat inconsistently, gave them a decree for the sum of Rs. 1,114, which the defendants alleged, but could not prove, that they had paid.

3. The plaintiffs now appeal: and on their behalf it has been pleaded that there has been no waiver, or if there has been, then there has been a fresh default since 1305. The defendants cross-appeal, and urge that the Subordinate Judge was wrong in holding that they had not paid the sums amounting to Rs. 1,114, for which the Judge has given the plaintiffs a decree.

4. We will deal first with the cross-appeal. We are of opinion that the Subordinate Judge has rightly held that the defendants did not pay the plaintiffs the sum of Rs. 1,114, the details of which he has given in his judgment. We come to this conclusion for the reasons assigned by him, viz. (1) that the evidence adduced by the defendants on this point is unreliable, being the evidence of partizans; (2) that the authenticity of the letters and receipts produced on their behalf as corroborative evidence has not been established; (3) that the signatures on them alleged to be those of the plaintiffs differ from their admittedly genuine signatures; and (4) that the defendants' khatas doc not appear have been correctly kept, and are therefore not to be depended on. Some of the letters, e.g., the letter printed at page 97 of the paper-book, are not at all likely to have been written by the plaintiffs. The letter in question (Ext. E.) is quite inconsistent with the admittedly genuine letters of the plaintiffs and with the proved state of accounts between the parties.

5. We now come to the question of waiver. We are unable to agree with the Subordinate Judge's finding that there was any such waiver on the part of the plaintiffs as would debar them from bringing this suit. It has been held by the Bombay High Court in a long series of rulings see Gumna Dambershet v. Bhiku Hariba ILR (1876) Bom. 125, Balaji Ganesh v. Sakharam Parashram Angal ILR (1892) Bom. 555, Kankuchand Shivchand v. Rustomji Hormusji ILR (1895) Bom. 109 and Kashiram v. Pandu ILR (1902) Bom. 1 that the mere accepta