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Pakaria Vs. Ranjita and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in34Ind.Cas.165
AppellantPakaria
RespondentRanjita and ors.
Excerpt:
mortgage - redemption--entries in khewat, attestation of, value of--estoppel--admission--burden of' proof--inherent power. - - the result has been to leave me in a state of some doubt, and i think it, therefore, best to decide according to my own impression of the justice of this case apart from any decision on any other set of facts, some onus undoubtedly mast be thrown upon the party who has been shown to be in possession as mortgagee in 1877 and still in possession in 1913 and who fails to show any change in the circumstances between those two termini. the onus having been cast on the defendants, they having failed to discharge it and the value of the property being what it was admitted to be, i hold that it is satisfactorily established that this mortgage was for a sum of rs......entries so verified amounted to an admission by the then persons in possession that they were in possession as mortgagees. now the whole trouble in this case is as to the terms of the contract under which they were so in possession. a great number of cases have been cited to me and the argument has been ably conducted on both sides. the result has been to leave me in a state of some doubt, and i think it, therefore, best to decide according to my own impression of the justice of this case apart from any decision on any other set of facts, some onus undoubtedly mast be thrown upon the party who has been shown to be in possession as mortgagee in 1877 and still in possession in 1913 and who fails to show any change in the circumstances between those two termini. once a mortgage always a.....
Judgment:

Walsh, J.

1. In this case I feel bound to allow the appeal. The subject-matter of the litigation is of the most trumpery description. The rent of the land in dispute, I am told, is Rs. 2-10, and the amount on payment of which redemption was decreed by the Munsif is Rs. 8. Putting the matter shortly, what appears from the judgments of the Courts below is that at some time or another in 1859, it is alleged, the plaintiff mortgaged this property to the defendants. A feeble attempt was made in the first Court to prove the original transaction and it wholly broke down. The lower Appellate Court has held that the evidence called by the plaintiff upon this part of his case is false. The result is that there is no oral evidence in the case at all. But there are certain entries in the khewat of 18V7, the verification of which was attested by the predecessors of the defendants and apparently by one of the defendants himself. (I was so told at the Bar by the appellant's Counsel and it was not denied by the respondents). It is quite clear apart from any authority that those entries so verified amounted to an admission by the then persons in possession that they were in possession as mortgagees. Now the whole trouble in this case is as to the terms of the contract under which they were so in possession. A great number of cases have been cited to me and the argument has been ably conducted on both sides. The result has been to leave me in a state of some doubt, and I think it, therefore, best to decide according to my own impression of the justice of this case apart from any decision on any other set of facts, Some onus undoubtedly mast be thrown upon the party who has been shown to be in possession as mortgagee in 1877 and still in possession in 1913 and who fails to show any change in the circumstances between those two termini. Once a mortgage always a mortgage, and it is impossible for me to hold that the defendants could not, if the plaintiff's equity of redemption had been extinguished, have shown something at any rate, if they could not go the whole distance, which would shift the onus back on to the plaintiff. I, therefore, think that it is satisfactorily established that the present defendants are in possession as mortgagees and that they have not discharged the onus of showing that the plaintiffs equity of redemption has been extinguished. The real trouble in the case is that I am absolutely without a thread of evidence as to the amount on payment of which the plaintiff is entitled to redeem. The only persons who spoke about it were feeble witnesses, whose evidence was completely thrown out by the lower Appellate Court. The evidence produced by the defendants does not throw any light upon it. The lower Appellate Court took rather a strange view in that it was prepared to accept the plaintiff's case if it was a claim for Rs. 80 instead of Rs. 8. That shows the danger of drawing on one's own imagination, because if the fact be that the rent was only Rs. 2-10 it is very unlikely that anybody would ever have got Rs. 80 on the mortgage of this property. I have got all the evidence before me and I am going to exercise my inherent powers of drawing inferences of fact from such evidence as is undisputed. The onus having been cast on the defendants, they having failed to discharge it and the value of the property being what it was admitted to be, I hold that it is satisfactorily established that this mortgage was for a sum of Rs. 8. The decree of the Munsif entitling the plaintiff to redemption on payment of that sum must, therefore, be restored. The appeal is allowed, the decree of the lower Appellate Court is set aside and that of the Court of first instance is restored with costs.


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