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Jaspat Rai and anr. Vs. Devi Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All244; 32Ind.Cas.399
AppellantJaspat Rai and anr.
RespondentDevi Dayal and ors.
Excerpt:
.....admitting secondary evidence in insisting on strict proof of the loss of a document like a mortgage or a special power-of-attorney authorising the creation of a mortgage. there are three other documents on the record which we think are strong corroboration of the plaintiff's case. this clearly refers to the mortgage of the punjab property. if duni chand's debt was discharged by the mortgage that jiwan mal purported to make as special attorney, the strong probabilities are that duni chand had authorised the making of the mortgage which satisfied his debt. 4. on the last question, namely, the nature of the property and the power of duni chand to mortgage it, we agree with the finding of the court below as well as with his reasons......1901. the mortgage is alleged to have been executed by one jiwan mal as special attorney of diwan duni chand in favour of tara chand. the plaintiffs are the sons of tara chand and one nihal chand (a cousin), who claims to be interested in the mortgage as having belonged to the same family as tara chand. the defendants are the minor sons of duni chand. the court below has granted a decree. the defendants have appealed. three points have been taken: first, that the plaintiffs have failed to prove the loss of the special power-of-attorney in such a way as to justify the court in receiving secondary evidence; secondly, that even if secondary evidence was admissible the evidence produced was insufficient to prove a power in jiwan mal of mortgaging property in suit, and thirdly, that the.....
Judgment:

1. This appeal arises out of a suit on foot of a mortgage dated the 31st of January 1901. The mortgage is alleged to have been executed by one Jiwan Mal as special attorney of Diwan Duni Chand in favour of Tara Chand. The plaintiffs are the sons of Tara Chand and one Nihal Chand (a cousin), who claims to be interested in the mortgage as having belonged to the same family as Tara Chand. The defendants are the minor sons of Duni Chand. The Court below has granted a decree. The defendants have appealed. Three points have been taken: first, that the plaintiffs have failed to prove the loss of the special power-of-attorney in such a way as to justify the Court in receiving secondary evidence; secondly, that even if secondary evidence was admissible the evidence produced was insufficient to prove a power in Jiwan Mal of mortgaging property in suit, and thirdly, that the property being waqf neither Duni Chand nor his attorney Jiwan Mal were entitled to mortgage or-charge the property.

2. Sufficient care is in many cases not taken to produce original documents, and, in our opinion, the Courts should be very strict before admitting secondary evidence in insisting on strict proof of the loss of a document like a mortgage or a special power-of-attorney authorising the creation of a mortgage. The desirability of insisting as far as possible on production of the originals of such documents is obvious. However, after a careful consideration of the evidence we are not prepared to disagree -with the Court below in its finding that the original power-of attorney was lost and could not be produced.

3. Nihal Chand himself purported to give secondary evidence of the contents of the document. He says he was present when it was executed, that it gave power to Jiwan Mal to mortgage the house and shops at Benares to secure the sum of Rs. 7,307. He states that he read and saw the power-of-attorney and knew the conditions laid down in it. Nihal Chand is, no doubt, an interested witness; and if his evidence stood alone we might find some difficulty in acting upon it. The scribe Amir Chand was also produced--he had a register which he keeps under the Rules of the Punjab Chief Court, which shows that a power of-attorney was executed at the time alleged by Duni Chand in favour of Jiwanmal and that it authorised the attorney to make a mortgage of property in Benares and also power to have the mortgage-deed registered. Muhammad Sharif, who was a clerk of a Pleader in Benares, deposes to having seen the power-of-attorney before the draft of the mortgage in suit was prepared. His master was Pleader for Duni Chand at the time of the mortgage and he is now Pleader for his sons, the defendants. A clerk in the office of Sub-Registrar of Wazirabad in the Punjab was examined on commission and he produced an extract which shows that a special power-of-attorney was presented for authentication on a Tuesday in November in the year 1900. The extract of the nature of the document is as follows: 'This special power-of-attorney was executed as special power-of-attorney for the production of a mortgage-deed in respect of a house and shops for registration in the office of the Sub-Registrar of Benares, dated the 27th of November 1900.' At first sight this extract seems rather against the plaintiffs than in their favour. A power-of-attorney authorising a donee to register a document is a very different thing from a power-of-attorney authorising the donee to hypothecate property. At first sight also it would seem that this extract is somewhat inconsistent with the oral evidence. Further consideration, however, shows that the evidence is not necessarily inconsistent. The chief object of getting the power-of-attorney authenticated at Wazirabad was that the Sub-Registrar of Benares would act upon it when the mortgage was presented for registration. It must be remembered that in respect of this mortgage and in respect of this power-of-attorney no mortgage of property was intended to be registered in Wazirabad. There are three other documents on the record which we think are strong corroboration of the plaintiff's case. For the purposes of consideration of the evidence to which we are about to refer, we may state the issue to be whether or not Jiwan Mal had power to mortgage the property in Benares. It is common case that there was about the date of this mortgage a decree against Duni Chand in the Punjab Court for Rs. 14,232. It is also the common case of both sides that there was about the same time as the alleged mortgage another mortgage of property in the Punjab. On the 28th of November a receipt was filed in the Punjab District Judge's, Court in which it is stated that the decree (to which we have just referred) to the extent of Rs. 7,000 had been discharged by the judgment-debtor (i.e., Duni Chand) by making a mortgage of seven houses and six shops. This clearly refers to the mortgage of the Punjab property. On the 26th of February 190l there is a similar receipt filed in the Punjab District Judge's Court, in which it is stated that the balance of the decree amounting to Its. 7,232 has been discharged by the judgment debtor mortgaging a house and shops at Benares. It thus appears that Duni Chand's decretal debt was discharged by a mortgage about 26 days after the date of the mortgage now in suit. It is not contended that Duni Chand made any other mortgage. If Duni Chand's debt was discharged by the mortgage that Jiwan Mal purported to make as special attorney, the strong probabilities are that Duni Chand had authorised the making of the mortgage which satisfied his debt. Duni Chand got the benefit of the money advanced. Considering the evidence as a whole and in particular the documents to which we have referred, we think that the secondary evidence of the power-of-attorney is sufficient.

4. On the last question, namely, the nature of the property and the power of Duni Chand to mortgage it, we agree with the finding of the Court below as well as with his reasons.

5. The result is that the appeal fails and is dismissed with costs, including in this Court fees on the higher scale. We extend the time to six months from this date.


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