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Govinda and anr. Vs. Premaji and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom73
AppellantGovinda and anr.
RespondentPremaji and ors.
Excerpt:
mortgage - sale--burden of proof. - - it must be distinctly understood that we do not deem it necessary to deal with the question as to whether the potechitti (unproduced and unstamped as it is found to have been) might be proved by other documentary or oral evidence, or with the applicability of section 170 of the civil procedure code of 1859 to this case......subhabhat v. vasudevbhat i.l.r. 2 bom. 113. the exhibits 8 and 9 are relied upon by the defendant jesha premaji as deeds of sale, whereby the lands therein respectively mentioned were conveyed to him absolutely. but the form of the instruments is not conclusive. if it appear aliunde, as, for instance, by the conduct of the apparent vendee himself, that the deeds were intended as mere securities for money, and that he so treated them, a court of equity will deal with them as such accordingly. now the books of the defendant, jesha premaji, have been produced by him on the requisition of the plaintiffs, and they contain entries (see exhibits 50,51 and 52) which treat the respective consideration moneys named in the alleged deeds of sale as continuing debts due to the defendant, jesha.....
Judgment:

M.R. Westropp, Kt., C.J.

1. In such cases as the present, where one party alleges a transaction to be a mortgage, and the other alleges it to be a sale, the question which presents itself for consideration is whether or not there continued to be a debt from the former to the latter--see Goodman v. Grierson 2 Ball and Beatty 279 Bapuji Apaji v. Senavaraji I.L.R. 2 Bom. 231; Murphy v. Taylor Ir. Chan Rep. 92; Subhabhat v. Vasudevbhat I.L.R. 2 Bom. 113. The exhibits 8 and 9 are relied upon by the defendant Jesha Premaji as deeds of sale, whereby the lands therein respectively mentioned were conveyed to him absolutely. But the form of the instruments is not conclusive. If it appear aliunde, as, for instance, by the conduct of the apparent vendee himself, that the deeds were intended as mere securities for money, and that he so treated them, a Court of Equity will deal with them as such accordingly. Now the books of the defendant, Jesha Premaji, have been produced by him on the requisition of the plaintiffs, and they contain entries (see exhibits 50,51 and 52) which treat the respective consideration moneys named in the alleged deeds of sale as continuing debts due to the defendant, Jesha Premaji, from Hasha, through whom his sons, the plaintiffs, claim. Of these entries, exhibits 51 and 52 show also that although exhibit 9 was executed by Krishnaji Vishvanath as nominal vendor, and only attested by Hasha, yet the transaction was really that of Hasha,--Krishnaji Vishvanath being merely a trustee for him, as appears from the fact that Jesha Premaji treated the consideration money for that deed (exhibit 9), namely, Rs. (199) one hundred and ninety-nine, as a debt due from Hasha to him, Jesha Premaji. These entries, exhibits 50, 51, and 52, when put in evidence, were, at the very least, sufficient to shift the burden of proof from the plaintiffs to the defendant, Jesha Premaji, but he has not attempted to give any evidence to contravene their effect. On the contrary, he admitted the genuineness and truth of those entries, and neither at the time of their 'production by himself, or of copies of them as extracts being filed in Court, or subsequently, although opportunities vere afforded to him to put in evidence, did he give either oral or documentary evidence which in anywise neutralized or explained away their effect, or showed that they related to other transactions than those to which exhibits 8 and 9 related. It was incumbent on him to do this, but he permitted the case to proceed to judgment without attempting to'do so. It must be distinctly understood that we do not deem it necessary to deal with the question as to whether the Potechitti (unproduced and unstamped as it is found to have been) might be proved by other documentary or oral evidence, or with the applicability of Section 170 of the Civil Procedure Code of 1859 to this case. We rest our decision on the conduct of the defendant, Jesha Premaji, himself, who treated the sums of Rs. (351) three hundred and fifty-one and Rs. (199) one hundred and ninety-nine, which coincide with the consideration moneys mentioned in exhibits 8 and 9 as debts due to himself from Hasha; and offered no explanation or evidence to the contrary. For these reasons we reverse the decree of the assistant Judge and restore that of the Subordinate Judge, with costs of suit and both appeals to be paid by the defendant, Jesha Premaji, to the surviving plaintiff, Mahadev bin Hasha. The Subordinate Judge should have named a reasonable time (say six calendar months) within which the redemption money should be paid; but as we are informed by the pleaders on both sides that the redemption money mentioned in the decree of the Subordinate Judge has been paid, and possession of the lands given to the plaintiff, we deem it unnecessary to make any amendment in the Subordinate Judge's decree.


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