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Pearey Lal and anr. Vs. Kunwar Rani M.L. Hira Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1941All150
AppellantPearey Lal and anr.
RespondentKunwar Rani M.L. Hira Devi
Cases Referred and Muhammad Zafar v. Zahur Husain
Excerpt:
- .....not entitled to maintain the action on the basis of a copy of the document and he dismissed the suit. rani hira devi took the matter in appeal before the learned district judge of bijnor and the learned judge who heard the appeal came to the conclusion that the rani was entitled to maintain the action on the basis of a copy and the agreement about the remission of the rent, though it took place in fact, could not be proved under the provisions of the evidence act as it was an arrangement which contradicted the terms of a registered document. accordingly, the learned civil judge granted to rani hira devi a decree for a sum of money under that mortgage. against the judgment of the learned civil judge, piarey lal and babu ram have made this appeal. earned counsel who appears for them has.....
Judgment:

Dar, J.

1. This is an appeal against the judgment and decree dated 11th September 1937 of the Civil Judge of Bijnor by which he reversed the judgment and decree dated 16th February 1937 of the Munsif of Nagina in a suit to enforce a mortgage. The respondent Rani Hira Devi is the proprietor of two villages Fattuwallah and Jogiawallah in the district of Bijnor. On 17th August 1928 she executed a theka of these two villages in favour of Piarey Lal and Babu Ram, the appellants in this appeal. The theka was for a period of 7 years from 1336 F to 1342 F and the rent reserved under the theka was Rupees 3000 for the year 1336 F and Rs. 3350 for subsequent years. To secure the due payment of the lease money, on 17th August 1928 a hypothecation bond, was executed by Piarey Lal and Babu Ram in favour of Rani Hira Devi. On or about 7th April 1930 an arrangement took place between Piarey Lal and Babu Ram on one side and Ani Hira Devi on the other as a result of which Piarey Lal and Babu Ram agreed to advance a sum of Rs. 2000 to Rani Hira Devi towards the lease money and the Rani agreed to remit a sum of Rs. 480 per annum from the rent reserved under the lease. This arrangement was recorded on the back of the said hypothecation bond and two days later a receipt was passed for a sum of Rs. 300 which was paid by Babu Ram and Piarey Lal to Rani Hira Devi. This sum of Rs. 300 was adjusted in such a way so as to show the acting on of the aforesaid arrangement during the year 1336 F. In the year 1931 Rani Hira Devi brought a suit in the revenue Court for recovery of arrears under the theka for the period 1836 F to 1338 F. This claim was for a large sum of money, but on 15th January 1932 a decree was passed for Rs. 4000 odd. The suit in which this decree was passed is No. 170/59. Later on, another suit was instituted by the Rani against the lessees for the recovery of the lease money for 1339 F and a fresh decree was passed on 19th September 1932.

2. On 25th October 1934 the Rani instituted the suit out of which the present appeal has arisen to enforce the security bond dated 17th August 1928 and her case shortly stated was that a large sum of money was due to her for arrears under the said decree No. 170/59 of the revenue Court and she prayed that a decree be passed in her favour for a sum of Rs. 4000. This suit to enforce the mortgage of 17th August 1928 was brought on the basis of a copy. The suit was contested by Piarey Lal and Babu Ram and they raised several defences to the action, but we are concerned in this appeal with two of them. They pleaded that the suit was not maintainable on a copy and they further pleaded that in 1930 there was an arrangement between them and Rani Hira Devi as a result of which it was agreed that Rs. 480 would be remitted from the lease money every year and they claimed that in case any amount was decreed to Rani Hira Devi in this suit reduction might be made for this sum which was agreed to be remitted.

3. The learned Munsif of Nagina came to the conclusion that this oral arrangement to remit rent at the rate of Rs. 480 per annum was proved. He further found that the mortgage bond contained an entry of this arrangement and that the plaintiff, Rani Hira Devi, had deliberately suppressed the document in order to prejudice the defendants with regard to their plea of remission of rent and of the advance payment of Rs. 2000. The learned Munsif accordingly came fco the conclusion that the plaintiff was not entitled to maintain the action on the basis of a copy of the document and he dismissed the suit. Rani Hira Devi took the matter in appeal before the learned District Judge of Bijnor and the learned Judge who heard the appeal came to the conclusion that the Rani was entitled to maintain the action on the basis of a copy and the agreement about the remission of the rent, though it took place in fact, could not be proved under the provisions of the Evidence Act as it was an arrangement which contradicted the terms of a registered document. Accordingly, the learned civil Judge granted to Rani Hira Devi a decree for a sum of money under that mortgage. Against the judgment of the learned civil Judge, Piarey Lal and Babu Ram have made this appeal. Earned Counsel who appears for them has raised two points before us. His first contention is that in the circumstances of this case the suit was not maintainable upon the copy and secondly he contends that the defendants were entitled to a remission of Rs. 480 per year under the arrangement made in 1930 mentioned above.

4. In order to enforce a claim on a mortgage the plaintiff is required to produce the original bond or its copy when circumstances exist which entitle the plaintiff to produce its copy. Gases however may occur where admissions are available to the plaintiff, admissions made in the course of pleadings or outside pleadings which go to prove his claim. In such cases he can rest on admissions alone and he need not produce and prove the original document or its copy. But the admissions must be sufficient to cover the entire claim and must relieve the plaintiff of the necessity of relying on the document or any portion of it. If the admissions are not available or if they are indefinite or insufficient, then the plaintiff can succeed only in the ordinary way, that is in a mortgage suit, by producing the original bond or its copy. Oases of former kind are Chuni Kuar v. Udai Ram ('83) 6 All. 73, Mullu v. Deokaran ('13) 11 A.L.J. 734 and Hikmatullah Khan v. Abdul Azim Khan ('21) 8 A.I.R. 1921 All. 218. Cases of the latter kind are Sri Ram v. Ram Lal ('13) 11 A.L.J. 255 and Muhammad Zafar v. Zahur Husain : AIR1926All741 .

5. Now in this case there is a concurrent finding of both the Courts below that the plaintiff has knowingly suppressed the document in order to prejudice the defendants in their plea of the arrangement of 1930 and that the loss set up by the plaintiff of the bond is not proved. The plaintiff therefore on these findings is not entitled to lead secondary evidence of the mortgage and she cannot succeed on the basis of a copy of the bond. The only alternative for the plaintiff is to rely upon some admission made by the defendants which will relieve the plaintiff from the necessity of producing the original bond or its copy. And this is what Mr. Pathak has endeavoured to do in this appeal. His main contention has been that on the pleadings in this case there was a clear admission made by the defendants about the existence of this mortgage and on this admission a decree could be passed in favour of the plaintiff. It therefore becomes necessary to examine the pleadings in this case. It is true that in the plaint in para. 4, it was set out that there was a theka made in favour of the defendants and to enforce the terms of the theka a mortgage bond was executed by the defendants. In para. 5 of the plaint particulars of the mortgage were set out and the plaint undoubtedly contained sufficient particulars which, if admitted by the defendants, would enable the Court to pass a mortgage decree in favour of the plaintiff. The defendants admitted that they had made a mortgage but they pleaded that it was not executed validly and properly. They denied para. 5 of the plaint and they further pleaded that the mortgage was cancelled by a subsequent arrangement and that the suit was not maintainable on the basis of a copy. On the pleadings of the parties an issue was raised to the effect:

Was the security bond relied upon by the plaintiff duly executed and attested? If not, how does it affect the suit?

6. The finding on this issue is in favour of the plaintiff. Our view of the pleadings of the parties is that there was no clear admission of the mortgage or of the terms of the mortgage and therefore it is not possible to pass a decree on the basis of admissions made in the written statement and it is necessary for the plaintiff to succeed in this claim to establish the terms of the mortgage by evidence apart from admissions. Once that stage is reached, it is manifest that the plaintiff can succeed only by producing the bond or by establishing facts which would entitle her to give secondary evidence and base her action 'upon the copy. On this part of the case there is a concurrent finding that the loss of the bond has not been duly proved. In our view therefore the plaintiff was not entitled to succeed in this claim on the basis of a copy.

7. The next matter is whether this arrangement of 1930 by which Rs. 2000 were received in advance and it was agreed to remit Rs. 480 per year should be taken into account in this claim of the plaintiff. The remission claimed is for three years, 1336 F, 1337 P and 1338 p. So far as 1336 F is concerned, on the basis of this arrangement accounts were adjusted between the parties and this amount can be treated as having been paid off and so far as this amount is concerned, there is no difficulty of an oral agreement being invoked to contradict the terms of a written document. For the years 1337 F and 1338 F there has been no payment and the defendants can only succeed on this part of the case if the arrangement set up by them could be admitted in evidence. But as we have decided that the suit is not maintainable on the basis of a copy, it is not necessary to pursue this matter any further or to-adjust accounts between the parties. The result is that we allow this appeal, Set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs to appellants throughout.


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