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Anandibai Bhaskar Nilkanth Vs. Narayan Dhonddev Tattoo - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 35 of 1913
Judge
Reported inAIR1915Bom68; (1915)17BOMLR49
AppellantAnandibai Bhaskar Nilkanth
RespondentNarayan Dhonddev Tattoo
Excerpt:
.....defendant therein made no reference to any failure of consideration, and for the purposes of that suit the consideration was impliedly the alleged consideration of rs. 5,000 it is unreasonable to suppose that the defendants' contention here is well-founded. if he really had this grievance in respect of a partial failure of the consideration money he would have certainly said so in the assistance suit; it is very easy for the defendants simply to deny the receipt of a part of the consideration knowing well that the minor plaintiff is not in a position to have very accurate information as to the events which happened in 1892 but we do think, after carefully considering the record as it stands and the arguments founded upon it, that there is no sufficient reason whatever to doubt that, as..........defendant therein made no reference to any failure of consideration, and for the purposes of that suit the consideration was impliedly the alleged consideration of rs. 5,000 it is unreasonable to suppose that the defendants' contention here is well-founded. if he really had this grievance in respect of a partial failure of the consideration money he would have certainly said so in the assistance suit; secondly, in regard to the consideration of a second usufructuary mortgage of rs. 2,366, the plaintiff's argument is that had the defendants been still entitled to rs. 1,300 from him on the prior mortgage, he would certainly have refused to acknowledge the debt of rs. 2,366 without a reference to this sum to which he would then have been entitled; and lastly that the rent-notes admittedly.....
Judgment:

Beaman, J.

1. The plaintiff in this appeal has raised three contentions; (1) that the Court below was in error in holding that of the alleged consideration of Rs. 5,000, Rs. 1,300 were not proved to have been paid; (2) that the Court below was in error in exempting from the operation of the mortgage five Survey Numbers 183 and 185, held by the Court below to belong to defendant No. 3, and Nos. 155, 156, and 157 held by the Court below to belong to defendant No. 4; (3) that the instalments allowed by the Court below are unjustifiable with all the circumstances of the case; and that this Court ought to alter that part of the decree of the Court below, even though it confirms the rest of the decree. Upon all these points after hearing very full arguments on behalf of the appellant and of the respondents Nos. 3 and 4, we are of opinion that the appellant is entitled to succeed. We think that the Court below took much too strict a view of the requirements of proof in respect of Rs. 1,300 having regard to the obvious disadvantage under which the plaintiff lay.

2. Here again the appellant's case for the purpose of argument may be divided into three parts. The plaintiff who was a minor and represented by a guardian, who himself knows nothing whatever of these transactions, endeavoured to convince the learned Judge below that the alleged consideration was fully paid upon three main grounds of inference. First in respect of an assistance suit, the plaintiff contended that inasmuch as the defendant therein made no reference to any failure of consideration, and for the purposes of that suit the consideration was impliedly the alleged consideration of Rs. 5,000 it is unreasonable to suppose that the defendants' contention here is well-founded. If he really had this grievance in respect of a partial failure of the consideration money he would have certainly said so in the assistance suit; secondly, in regard to the consideration of a second usufructuary mortgage of Rs. 2,366, the plaintiff's argument is that had the defendants been still entitled to Rs. 1,300 from him on the prior mortgage, he would certainly have refused to acknowledge the debt of Rs. 2,366 without a reference to this sum to which he would then have been entitled; and lastly that the rent-notes admittedly executed by the defendant imply that the principal sum of the mortgage was Rs. 5,000. This is arrived at by assuming that rate of interest was 13 annas per cent. per mensem, and when calculated on Rs. 5,000 for a period of nine months or three quarters of a year, yields a rent of as nearly as possible Rs. 370 which was the rent agreed to be paid by the defendant for nine months. We think that all these inferences are very cogent, and that the Court can hardly have expected more from the plaintiff in the circumstances of the case by way of strict proof. It is very easy for the defendants simply to deny the receipt of a part of the consideration knowing well that the minor plaintiff is not in a position to have very accurate information as to the events which happened in 1892 But we do think, after carefully considering the record as it stands and the arguments founded upon it, that there is no sufficient reason whatever to doubt that, as appears on the mortgage bond, the consideration money advanced was Rs. 5,000 and not merely Rs. 3,700 as now alleged by the defendant. For what they are worth the entries in the Record of Rights, to which we must assume that the defendant here was a party, confirm our conclusion. In one of these entries, the mortgage is referred to and the consideration is stated to have been Rs. 5,000, and not Rs. 3,700. We are, therefore, satisfied that the learned Judge below was in error in refusing to decree to the plaintiff Rs. 5,000 as principal on the mortgage.

3. The next point relates to the lands which the learned Judge below has declared not to be covered by the plaintiff's mortgage. Here again the onus of proof was thrown, and rightly thrown, no doubt in the first instance, upon the plaintiff, but we think that the plaintiff has satisfactorily discharged it. It is to be observed in this connection that neither of the defendants 3 and 4 appear to have taken the least interest in the conduct of the suit. They restricted themselves to their written statements denying the plaintiff's claim so far as the mortgage was sought to be extended to these lands, but they did not appear before the Judge, or so far as we can see offer any evidence with the single exception of Exhibit 78 in support of this contention. How Ex. 78 got on the record is not very clear.

4. The facts so far as they are disclosed upon the evidence relating to these lands are briefly these. First of all Survey Nos. 183 and 185. These appear to have been mortgaged by the predecessor-in-title of the present mortgagor in 1878 and this is evidenced by Ex. 81. We see no reason whatever to doubt the genuineness of that paper or the truth of the transactions which it proves. So that in 1878 at any rate the defendant or his predecessor-in-title appears to have been the owner of Nos. 183 and 185. In 1892 these two lands are embraced in the mortgage upon which this suit is brought, and the plaintiff under the provisions of the Record of Rights Act was compelled to annex to his plaint extracts from that record relating to lands in suit. It is upon these extracts from the Record of rights and upon these alone that defendants 3 and 4 rely. In fairness we ought to say here that defendant 3 also is a minor and to that extent labours under something like the same disadvantages as the plaintiff. The defendant No. 4 appears to have been an old Mali woman, and according to her own story has for many years been in Vahivat of the other three Numbers to which we will presently refer. The Record of Rights appears to have been written up touching these five Numbers in the year 1907, and Nos. 183 and 185 are shown in the name of the Khatedar, defendant 3. The mortgagor is described as the tenant. It is noteworthy, however, that defendant 3 is entered in this record as Khatedar since 1905. When these entries were made and when this suit was filed the old Record of Rights Act of 1903 had not been repealed, and under that Act entries in the record appear to have had no probative value. At any rate no Court was under any legal obligation to attach any evidentiary weight to them. In 1913 that is to say, after the trial of this suit the old Record o Rights Act was repealed and incorporated as Chapter XA in the Land Revenue Code. There we find Section 135J which introduces a great change in this respect. It enacts that entries in the record henceforth shall be presumed in effect to be a true statement of their contents, and in the absence of any other evidence, I suppose, the Court under this Section 135J would be obliged to be guided by any facts so entered in the Record of rights. Whether a provision of that kind should be interpreted in appeal retrospectively is a question of nicety, for it is evident that when the Judge below dealt with the materials before him these extracts from the Record of Rights might have been entirely neglected had he wished to neglect them. Had he adopted that attitude it is clear that there would have been absolutely no evidence in respect of Nos. 183 and 185 to be set against the plaintiff's evidence that his mortgagor was the owner of those lands in 1878, that he professed to be the owner and to mortgage them in 1892, and therefore, it established a prima facie case at any rate that when defendant No. I'S father executed this mortgage he was the owner of these lands. There is of course the oral evidence of defendant No. 1 who now appears to be siding with defendants 3 and 4. But we do not think that that could have carried any weight, had the learned Judge below not desired to give full effect to the entry in the Record of Rights. Further, it is to be noted that defendant No. 1 himself stood surety to the mortgage-deed upon which the plaintiff now sues. But even assuming that Section 135J has retrospective effect, we still do not think that those entries should necessarily lead to the conclusion which the Court below has adopted. Assuming that the mortgage of 1892 was duly effected by the mortgagors who were then the owners of the land it is quite conceivable, indeed quite likely, that by the year 1907 this defendant may have entered into other arrangements, trafficked with parts of the mortgaged property, and so got the entry relating to lands Nos. 183 and 185 made in the Record of Rights, and if that be the truth of the matter, we are at a loss to understand how it can affect the mortgagee's rights under his mortgage of 1892.

5. With regard to the other three lands, namely, Nos. 155, 156 and 157, the entry in the Record of Rights shows that the Khatedar was one Gopal, and defendant 4 appears to have been his Vahivatdar. It is significant that this Gopal is the executant of the deed exhibited as Exhibit 92 of the year 1892, and entered into about one month before the plaintiff's mortgage. That deed purports to have been a relinquishment by Gopal, a bhauband of the defendant, mortgagor of these lands. It has been strenuously contended on behalf of defendant 4, the Mali woman, called the Vahivatdar in the Record of Rights, that Exhibit 82 has not been proved. This is a registered document, and the defendant who has been throughout the case hostile to the plaintiff has proved his father's signature thereon. There is also the Registrar's note which may be evidence, though of course necessarily not conclusive evidence, of the truth of the facts set forth therein. This is especially provided by Section 60 of the Registration Act, and a consideration of the decisions upon that section leaves no doubt in our minds that such an official endorsement may be used and ought to be used as evidence, and in first appeal where this Court is in a position to make use of whatever materials are available upon questions of fact, as well as questions of law, may well be taken along with the signature of Dhondu and the surrounding circumstances to be evidence of the truth of the facts stated therein. So that we think that this document is quite sufficiently proved for the limited purpose for which it was produced by the plaintiff. It was not sought to give effect to this document, but merely to use it as collateral proof of the legal relations of certain parties touching these three Survey Numbers. Here again, we think, that the plaintiff's evidence is distinctly superior to that of defendant 4, if indeed there can be said to be any evidence at all in favour of that party. The Record of Rights, as I have said, shows that the executant of Ex. 2 was declared to be the Khatedar of this land in 1907, and that defendant 4 was then merely a Vahivatdar. How this can possibly affect the mortgagee's rights acquired in 1892, if at that time the mortgagor was the owner of the land in suit, we do not understand, and we take that to be the true state of facts. We believe that in 1892 the defendant mortgagor was the owner, not only of Nos. 183 and 185, but also of Nos. 155, 156 and 157. We are, therefore, of opinion that these lands are subject to the plaintiff's mortgage.

6. As regards the instalments allowed by the learned Judge below, we think all we need do is to increase the amount of these instalments, having regard to the increased amount we are now decreeing to the plaintiff, from Rs. 900 to Rs. 1,500 a year, leaving all the other conditions annexed to the payment of such instalments so enhanced as in the decree of the Court below. The decree will be for Rs. 10,000 (Rs. 5,000 principal and Rs. 5,000 interest). There will be interest at 6 per cent. on Rs. 10,000 from the date of the suit till satisfaction. The plaintiff must have his costs throughout all these proceedings. Defendants 3 and 4 to pay half the costs of this appeal. Plaintiff to pay defendant 2's costs such as they are of this appeal, and he should recover the remainder of his costs from defendant No. 1 throughout.


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