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Brahmananda Panda Vs. Kanduri Charan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 53 of 1951
Judge
Reported inAIR1959Ori126
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 14; Evidence Act, 1872 - Sections 58, 65 and 68; Hindu Law
AppellantBrahmananda Panda
RespondentKanduri Charan Das and ors.
Appellant AdvocateR.K. Das and ;S. Das, Advs.
Respondent AdvocateK.S.R. Murty, ;U.N. Rath, ;D.C. Sahu and ;P.L. Misra, Advs.
DispositionAppeal partly allowed
Cases ReferredNageswar Prasad v. Bachu Singh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....p.v. balakrishnarao, j.1. defendants 1 and 2 who are brothers filed this appeal against the judgment and decree of shri b. s. patnaik, subordinate judge of cuttack, in a suit for recovery of money due on a mortgage bond. respondent no. 1 is the plaintiff. respondents 2, 3 and 4 are the sons of defendant no. 1, respondents 3 and 4 being minors. respondent no. 5 is sushila dibya, widow of defendant no. 1. appellant no. 1-defendant no. 1 having died during the pendency of the appeal, respondents 2, 3, 4 and 5 are his legal representatives.2. the plaintiffs case is that the defendants formed a joint family of which defendants 1 and 2 are the managing members; that defendants 1 and 2 incurred a loan of rs. 5999/- by registered mortgage bond dated 6-2-37 in order to pay off antecedent debts.....
Judgment:

P.V. Balakrishnarao, J.

1. Defendants 1 and 2 who are brothers filed this appeal against the judgment and decree of Shri B. S. Patnaik, Subordinate Judge of Cuttack, in a suit for recovery of money due on a mortgage bond. Respondent No. 1 is the plaintiff. Respondents 2, 3 and 4 are the sons of defendant No. 1, respondents 3 and 4 being minors. Respondent No. 5 is Sushila Dibya, widow of defendant No. 1. Appellant No. 1-defendant No. 1 having died during the pendency of the appeal, respondents 2, 3, 4 and 5 are his legal representatives.

2. The plaintiffs case is that the defendants formed a joint family of which defendants 1 and 2 are the managing members; that defendants 1 and 2 incurred a loan of Rs. 5999/- by registered mortgage bond dated 6-2-37 in order to pay off antecedent debts stipulating to repay it within one year with interest at 9 per cent per annum; and that defendants 1 and 2 not having repaid the loan except a sum of Rs. 400/- on 1-2-44, the suit is filed by the plaintiff for recovery of a sum of Rs. 11,598/- together with future interest within a time to be fixed by the Court failing which the mortgaged properties of the defendants should be sold for realisation of the decretal dues.

3. It may be stated here that along with the plaint the original mortgage bond was not filed, but curiously the plaintiff did not allege in the plaint that the original was lost and that therefore be suit was filed on a registration copy of the said mortgage bond. Along with the plaint he filed an application to keep the document filed in a sealed cover which was done. This document put in the sealed cover ultimately turned out to be a registration copy of he mortgage bond. After notice to the defendants, the defendants filed an application to inspect this document and defendants 1 and 2 filed a written statement after the said inspection of the document kept in the sealed cover.

4. Defendants 1 and 2 contended that the plaintiff was not a money-lender and did not advance any sum as alleged to the defendants; that he was a benamidar for the real Mahajan Kelu Charan Barik who is related to him, Kelu Charan's son having married the plaintiff's sister that Kelu Charan was heavily assessed to income-tax in 1936 and for that reason he was no longer willing to advance money in his own name to any person; and that the advance was made benami in the name of the plaintiff. These two defendants also contended that defendant No. 1 received only Rs. 4000/- towards consideration, but under the pressure of Kelu Charan he executed a mortgage bond for a higher sum, namely, Rs. 5999/-.

They further pleaded that defendant No. 1 sold away gold in 1943 and paid to Kelu Charan a sum of Rs. 4800/- which payment was endorsed on the original bond which was then in the custody of Kelu Charan; that at that time it was decided that an amicable settlement of accounts would be made and on further payment, if necessary, the mortgage bond would be deemed discharged; that in 1944 in pursuance of an amicable settlement it was settled that the defendants were to pay about Rs. 900/-including some costs; that defendant No. 1 having with him only a sum of Rs. 400/- paid that amount and the same was endorsed on the mortgage bond; and that defendant No. 1 requested for remission of the balance. It is further stated that defendant No. 1 is an addict of opium and that on that day when Rs. 400/- were paid, that is, 1-2-44 he was very much intoxicated and under that planned intoxication he had endorsed the payment of Rs. 400/-and signed on a certified copy of the mortgage bond under the bona fide impression that the document was the original bond. Defendant No. 2 was also similarly intoxicated and he had signed after his elder brother defendant No. 1.

5. Defendant No. 3 filed a written statement supporting the contentions of defendants 1 and 2 and denying the consideration of the mortgage, the necessity of the payment on the certified copy of the mortgage bond. He also pleaded that the mortgage debt was an illegal debt and not binding on the family property. He appeared through Miss P. L. Misra in this appeal. A court-guardian was appointed for the minor defendants 4 and 5. Mr. Bibudhendu Misra, the minors' guardian, filed a written statement on 28-7-50 putting the plaintiff to strict proof of all the allegations. They were represented in this appeal by Mr. K. S. R. Murty.

6. Curiously on this state of pleadings on the day on which the issues were framed that is, 5-7-50, the learned Subordinate Judge did not frame any, issue with regard to the mortgage bond whether it was true and supported by consideration and binding on the minor defendants. The early issues which were framed on that day are:

1. Is the suit maintainable?

2. Is the suit barred by limitation?

3. Is there any fraud practised on the defendants?

4. Is the plaintiff entitled to sue?

5. What relief, if any, is the plaintiff entitled to?

7. From the order framing the issues which is a piece of paper signed by the learned Subordinate Judge, I find certain additional issues were added which are issues Nos 6, 7 and 8. They are:

6. Are defendants 3 to 5 liable to debts, if any, by defendant No. 1 being immoral?

7. Is the plea of payment of Rs. 4800/- by defendant No. 1 true?

8. Was the mortgage in suit for a consideration of Rs. 4000/- only?

These issues purported to have been framed on 13-3-51. I shall deal with this aspect of the matter in detail later on.

8. On issues Nos. 1 and 4, the learned Subordinate Judge held that the plaintiff being the mortgagee and the real Mahajan he was entitled to sue and accordingly answered these issues in the affirmative. The only point dealt with by him in coming to a finding on these two issues is with regard to the benami nature of the transaction. From the pleadings set out above, it is clear that issues Nos. 1 and 4 are independent of each other. Issue No. 1 relates to the filing of a suit on a registration copy of the mortgage bond the defendants pleading that the suit was not maintainable, in my opinion, on that ground.

They inspected the document in the sealed cover before filing the written statement and non-maintainability of the suit was the first allegation, made therein. Such a suit would not be maintainable if the loss of the original was not properly accounted for, as in that case the copy would not be admissible in evidence. Issue No. 4 relates to the contention of defendant No. 1 that the real lender was Kelu Charan Barik and he got the mortgage bond executed in favour of his relation, the plaintiff, to avoid income-tax.

Unfortunately the learned Subordinate Judge treated these two issues as covering the same point and came to a finding that the plaintiff was entitled to sue and the suit was maintainable on the evidence that the plaintiff was in a position to advance Rs. 5999/-. On the issue of limitation, issue No. 2, as a payment of Rs. 400/- was admitted, he held that the suit was in time. The learned Subordinate Judge also held that no fraud was practised on defendants 1 and 2; that the debts were not immoral, and that the plea of payment of Rs. 4800 was not made out as also that the mortgage bond was supported by consideration fully.

9. Mr. R. K. Patnaik, the learned counsel appearing for the appellants argued all the questions which arise in the appeal and contended that the learned Subordinate Judge erred in passing a mortgage decree against all the defendants; that he ought to have held that a payment of Rs. 4800/- was made towards the mortgage dues; and that the suit filed on the registration copy of the mortgage bond was not maintainable. He further contended that even at the time of filing the suit, the plaintiff tried to suppress the fact that the original mortgage bond was cost and suit was tiled only on a registrant copy of the mortgage bond; and that the learned Subordinate Judge acted contrary to law in not requiring the plaintiff first to prove the loss of the mortgage bond and then let in evidence the registration copy.

According to the learned counsel, it was the endorsement of payment of Rs. 400/- that was first marked as an exhibit and the registration copy was exhibited in evidence at the closing stage of the trial. The learned counsel also contended that non-executing defendants were not given an opportunity to cross-examine the first defendant's witnesses to show either that the consideration was not received or that the debt was tainted by illegality or immorality. (10) According to the evidence of the first defendant who is examined as D. W. 4, the execution of a mortgage bond by defendants 1 and 2 was admitted. They contended that the mortgage bond was supported by consideration to the extent of Rs. 4000/- only. The burden of proving that the mortgage bond was supported by consideration so as to make defendants 3 to 5 liable is on the plaintiff. It is for defendants 1 and 2, the mortgagors to make out that the mortgage bond is supported by consideration only to the extent of Rs. 4000/- and that they did not receive the balance of Rs. 1999/-. (11) P. W. 1 is one Maheswar Panda. He stated that defendants 1 and 2 borrowed Rs. 5999/-(the learned Subordinate Judge has noted in the deposition that he at first stated Rs. 4999/-) on a simple mortgage bond; that he was an attesting witness to that; that Fakir Charan Mohanty and Baidhar Naik were also attesting witnesses; that the original mortgage bond was filed in the stamp refund case by defendant No. 1 in the Court of the Sub-Divisional Officer at Kendrapara; and that he searched for the document for the plaintiff and could not get it and therefore he understood that it had been destroyed.

At this stage, the plaintiff ought to have tendered the registration copy of the document for being received in evidence and marked as an exhibit, but for some reason which is not explicable it was not done. Then the witness stated that defendant No. 1 paid Rs. 400/- in February 1944 towards the mortgage bond; and that the endorsement was written by defendant No. 1 and signed and thumb marked by defendants 1 and 2. Strangely this endorsement is marked Ext. 1. This is on the reverse of the first page of the registration copy of the mortgage bond.

The witness proved the signatures of defendants 1 and 2 to this endorsement. Ext. 1 was marked on 8-3-51. The reverse of the first page on which endorsement Ext. 1 was made almost gives an appearance of the reverse of the first page of an original registered mortgage bond. P. W. 1 also stated that on behalf of the plaintiff he made enquiries about the legal necessities of defendants 1 and 2; that there were decretal dues of Mandardhar Panda and Jagu Sahu, but he did not enquire as to the extent of those dues as also the handnote dues of Kelu Charan Barik; and that about Rs. 2975/- were paid towards these handnote dues.

He was the writer of the handnote Ext. 2 in favour of Kelu Charan Barik. He proved Ext. 2(2), the endorsement of payment on the handnote. He was also the writer of the receipt of consideration Ext. 1(a) dated 23-4-37. He did not remember if he filed any application for search of the original bond and he made no enquiry about the necessity for the loans. He was again, after his examination, recalled on petition and proved Ext. 3, the handnote in favour of Daitari Kar and proved also Ext. 4, another handnote in favour of Kelu Charan Barik executed by defendant No. 1 as also the endorsement on the same Ext. 4(a). P. W. 2 Bikal Mohanty is a witness to Ext. 1, the endorsement of payment of Rs. 400/-.

He stated that at the time of that endorsement defendants 1 and 2 were of sound mind. P. W. 3 is the younger brother of the plaintiff. He stated that defendants 1 and 2 incurred loan of Rs. 5999/-by a registered bond; that one day before the mortgage bond they had granted a receipt to have incurred a loan of Rs. 2000/-; that he gave that amount to P. W. 1 in presence of defendants 1 and 2; that two months after that he paid Rs. 3999/- to defendants 1 and 2 and a receipt was taken from them for Rs. 5999/-: that he had filed the original in the court of the Sub-Divisional Officer, Kendrapara for the refund of value of stamp, that defendants 1 and 2 had purchased a stamp worth Rs. 30/-for incurring loan from one Sadhu Behera on registered mortgage bond and as Sadhu Behera refused that stamp was not used; that the original bond was filed in Misc. Case No. 59 of 1937-38; that on his enquiries it was not found; that he obtained a certified copy of the registered mortgage bond in 1942; that about the legal necessity he enquired only from defendants 1 and 2 who stated that there were dues of Kelu Charan Barik on two handnotes to the extent of Rs. 3000/-; there were the decretal dues of Mandardhar Panda of about Rs. 1000/- and of Jagu Sahu and Sadhu Behera of about Rs. 600/-and there were the handnote dues of Daitari Kar to the extent of Rs. 500/-; and that he made personal enquiries from the abovesaid creditors.

He also stated that he personally saw the two handnotes with Kelu Charan; that the endorsement Ext. 1 was made after calculating interest at the rate of 6 per cent per annum; that after the filing of the original mortgage bond in 1937-38, it never came into their custody; that it was not a fact that in the year 1943 defendants paid a sum of Rs. 4800/-and endorsed the same on the back of the original mortgage bond; that the extent of his present money lending business was only Rs. 2000/- to Rs. 3000/-; and that the suit transaction was the only occasion when his brother granted a loan of such a heavy amount.

He also admitted that the extent of money-lending business of Kelu Charan Barik is about one lakh of rupees. This evidence was given by him on 9-3-1951. He was again recalled on 12-0-1951 when he stated that they had two or three buildings; that the plaintiff was then at Calcutta and that it was not a fact that the original mortgage bond was with Krishna Charan Barik, son of Kelu Charan Barik. This is all the evidence adduced on the side of the plaintiff.

12. Five witnesses for the defendants were examined on 12-3-51 and the case was then adjourned to the next day. On 13-3-51, defendant No. 3 filed a petition for permission to cross-examine defendants' witnesses who had already been examined the previous day on the grounds stated in the petition. The learned Subordinate Judge rejected the petition. After rejecting the petition of defendant No. 3 he examined D. W. 6. Nowhere from the order sheet we get that the registration copy of the mortgage bond Ext. 1 (b) was marked though it is noted on which dates the other exhibits were let in evidence.

From the exhibit mark on the document we get that it was marked as an exhibit 'l(b)' on 16-3-51, that is, on the day on which the judgment was delivered, though the ordersheet does not show that anything was done on 16-3-51 except delivering the judgment. Arguments were heard, according to order No. 28 in the ordersheet, on 13-3-51 and the case was adjourned to 16-3-51 for judgment. On 14-3-51, the plaintiff filed a petition for admitting in evidence the certified copy of the suit mortgage bond on the grounds stated in the petition. He also filed an application stating certain facts of his case. The learned Subordinate Judge ordered that necessary orders on the petition would be made in the judgment.

The defendant's pleader was not heard on this application for admitting the certified copy of the suit mortgage bond in evidence and Mr. R. K. Patnaik, learned counsel for the appellant stated in court that as on 13-3-51 the case was adjourned to 16-3-51 for judgment, he was not aware of this order on 14-3-51. On 15-3-51, defendant No. 3 filed a memo of written arguments with a petition for considering them which was rejected. On 2-4-51, defendants 1 and 2 filed a petition for making necessary orders in the order-sheet regarding the correction of judgment and on 4-4-51 it was dismissed.

13. In the judgment it is stated,

'In view of the pleading in para 10 of the written statement of defendant No. 1 that he had acknowledged Rs. 400/- as per Ext. 1 on the certified copy of the mortgage bond there can be no doubt that the execution and the contents of the original are admitted by defendant No. 1 and in that view no formal attestation need be proved under Section 68 of the Evidence Act and accordingly I admit this certified copy as secondary evidence and mark it as Ext. 1(b)'.

It is therefore clear that the registration copy was marked as an exhibit at the time of the judgment. Be that as it may it is clear from the judgment itself that the learned Subordinate Judge committed an error in coming to the conclusion that no formal proof of attestation was necessary. He failed to consider that apart from the executants defendants 1 and 2, the minor sons of defendant No. 1 are parties to the suit who did not admit the mortgage and put the plaintiff to proof of the mortgage and the payment of consideration thereunder. Under such circumstances, in order to pass a mortgage decree against them, it is absolutely necessary that the execution and attestation of the mortgage should;be proved. In the case of Nageswar Prasad v. Bachu Singh,4 Pat LJ 511: (AIR 1919 Pat 411) where a mortgage was executed by the Karta of a Hindu jointfamily on his own behalf and on behalf of a minor,and also by the remaining member of the family,and the Karta and the remaining member admittedthe execution in a subsequent deed, it was held (1)that this admission did not relieve the mortgageeof the necessity of calling an attesting witness toprove execution as against the minor; and (2) thatalthough the minor would be liable to discharge thedebt since it was shown to have been incurred fora family necessity, yet in the absence of proof ofexecution as against him the debt would not createa lien on the property. Atkinson, J. who was a partyto this decision of the Division Bench also heldthat where a party to an attested document admitsits execution, a third party is not bound by suchadmission.

The learned Subordinate Judge failed to note that P. W. 1 was one of the attesting witnesses to the original mortgage, but his evidence did not show that he proved the execution and attestation. He simply stated that he was an attesting witness to that mortgage and that Fakir Charan Mohanty and Baidhar Naik were also attesting witnesses. He stopped with these statements. He did not say that the mortgage bond was executed by defendants 1 and 2 in his presence and that he attested the same after seeing them sign in presence of the other attesting witnesses. His evidence therefore does not prove execution and attestation, as against defendants 3 to 5.

14. The next point to be considered is whether Ext. 1 (b) is admissible in evidence, it being the registration copy of the original mortgage bond. I have already noticed above the circumstances under which this document was filed as also the circumstances under which this document was admitted in evidence. The plaintiff did not however state in the body of the plaint that the suit was filed on a registration copy of the document, the original having been lost. He also did not state the circumstances under which the original was lost. At the time of getting the endorsement on the reverse of the first page of the registration copy marked in evidence, P. W. 1 stated that the original mortgage bond was filed in the stamp refund case by defendant No. 1 in the court of the Sub-Divisional Officer at Kendrapara, that he searched for the document for the plaintiff and could not get it; and that he understood that it had been destroyed. This evidence is at variance with the evidence of P. W. 3, the plaintiff's brother.

P. W. 3 stated that he had filed the original in the Court of the Sub-Divisional Officer, Kendrapara for the refund of value of stamp; and that defendants 1 and 2 had purchased a stamp worth Rs. 30/- for incurring a loan from one Sadhu Behera on a registered mortgage bond and as Sadhu Behera refused that stamp was not used. Any way it is quite improbable that in order to Ret refund of the value of the stamp purchased by defendants 1 and 2 in connection with a registered mortgage bond to be executed in favour of Sadhu Behera there is any necessity to file the original mortgage bond executed in favour of the plaintiff in the stamp refund case filed by defendants 1 and 2. It is also improbable that the mortgage bond executed by defendants 1 and 2 would be handed over to them for purposes of being filed in another matter.

The plaintiff filed Ext. 5 for the purpose of proving the loss of the original. Ext. 5 is a copyfrom the register of applications for refund of value of stamp for 1937-38. This appears to be a copy from a certified copy. As such it is not admissible in evidence. Even if it is admissible in evidence it does not improve the matters further. The name of the applicant for refund is shown as Baikunthnath Panda of Pattamundai. The plaintiff has not placed before the Court any other evidence to show that the original mortgage bond was filed in any refund case and that the record was destroyed. Defendant No. 1 has stated in his evidence that there was another Baikunthnath Panda who might have filed the application and that he never filed the application.

The conduct of the plaintiff at the time of filing the suit and the way in which he sought to prove the loss of the document coupled with the fact that he never attempted to get the document marked during the entire course of the trial makes me to accept the contention of defendants 1 and 2 that the plaintiff did not purposely file the document as there was a payment endorsed on it. Consequently, in my opinion, though defendants 1 and 2 admitted execution of a mortgage, yet the mortgage cannot be said to have been proved against defendants 3 to 5 who are not parties to the transaction. In the case of Hira Lal v Ram Prasad, AIR 1949 All 677, it was held,

'The provisions of Ss. 65 and 66 of the Indian Evidence Act are not intended to be utilised for the benefit of persons who deliberately or with sinister motives refuse to produce in court a document which is in their possession, power or control. It is designed only for the protection of persons who in spite of best efforts, are unable, from circumstances beyond their control, to place before court primary evidence as required by law.

Where in a suit upon an alleged mortgage, the plaintiff fails to prove the loss of the original document upon which he relies, he is not entitled to produce secondary evidence of the deed (in this case, certified copy) on the ground that there existed a written admission by the defendant of the contents of that document.

In order to avail of clause (b) of Section 65, the written admission of the contents of the document, sought to be produced, has to be the admission of the person against whom it is sought to be proved, or by his representative-in-interest'. In my opinion, therefore, on this ground also the mortgage is not proved so as to bind defendants 3 to 5.

15. The next questions to be considered is whether the plaintiff succeeded in proving that the suit document was supported by consideration to the extent of Rs. 5999/- as against defendants 3 to 5. According to the recitals in Ext. 1(b), the mortgage was executed by defendants 1 and 2 for Rs. 5999/-in order to discharge a handnote debt of Kelu Charan Barik, decree amounts due to Jagu Sahu and Mandardhar Panda and a handnote debt of Daitari Kar. The amounts due under those documents were not recited in the mortgage bond.Ext. 1(a) is the receipt alleged to have been executed by defendants 1 and 2 admitting receipt of the entire consideration under the mortgage bond. It is dated 23-4-37, It recites that an amount of Rs. 400/- was paid on 15-4-37 to pay the dues in execution case No. 1397 of 1936 in favour of Sadhu Behera; that Rs. 1100/- were received on 23-4-37; and that the balance of Rs. 4499/- was received at the time of execution of the receipt. This amount was also received on 23-4-37. In the evidence of P, Ws. 1 and 3, the consideration was sought to be proved as consisting of handnote dues of Kelu Charan Barik amounting to Rs. 2975/-.

P. W. 1 simply stated that about Rs. 2975/-were paid towards these handnote dues. There is no evidence as to who paid those amounts. He also stated that there were the handnote dues of Daitari Kar and he did not enquire about the hand notes. After being recalled he stated that Ext. 3 is the handnote in favour of Daitari Kar and that Ext. 4 is the handnote in favour of Kelu Charan Barik. Ext. 4(a) contains the endorsement in the hand of Kelu Charan Barik.

Two other documents are filed in the case Exts. 7 and 8. Ext. 7 which is a suit register extract shows the amount due to Jagu Sahu as Rs. 3300/- and Ext. 8 shows that the decree dues of Mandardhar Panda amounted to Rs. 585/-. Ext. 4, the second promissory note in favour of Kelu Charan does not find a place in the recitals of the mortgage. The total amount covered by these documents comes up to about Rs. 7310/-. Consequently there is some suspicion about the recitak of consideration in the original mortgage bond There is also no evidence that the amounts of Jagu Sahu and Mandardhar Panda were paid.

Neither of them was examined as a witness Simply the filing of the suit register extracts does not prove the payment of the consideration under the mortgage bond in discharge of their debts. The suit register extracts do not show that either the plaintiff paid those dues or defendants 1 and 2 paid those dues after taking the money from the mortgagee. It is simply noted 'fully satisfied'. It is upon the plaintiff to prove that the consideration of the mortgage bond was paid in discharge of those debts so as to bind defendants 3 to 5.

16. The learned Subordinate Judge therefore did not correctly approach the contention of defendants 3 to 5, did not even allow defendant No. 3 to cross-examine the witnesses for defendants 1 and 2 and wrongly came to the conclusion that defendants 3 to 5 also were liable under the mortgage bond. I find that the mortgage is not proved as against defendants 3 to 5 as also its consideration. In view of my above reasons, I hold that the mortgage does not bind the interests of defendants 3 to 5 in the mortgaged property.

17. Defendants 3 to 5 failed to prove the illegality of the debt by showing that it was contracted for immoral purposes, though they let in evidence to show that the first defendant kept a prostitute and was addicted to opium. It is not sufficient evidence to make the debt immoral inasmuch as there is no evidence that the amount borrowed went towards the payment of prostitution or opium.

18. The learned counsel for the appellant next contended that the mortgage bond as far as defendants 1 and 2 are concerned is supported by consideration only to the extent of Rs. 4000/-. Defendants 1 and 2 having admitted in their written statement the execution of a mortgage bond in favour of the plaintiff though they stated that the plaintiff was a benamidar for Kelu Charan Barik, the mortgage is proved as against them though the original was not filed and its loss was not satisfactorily explained.

It is the definite case of defendants 1 and 2 that they incurred a loan of Rs. 4000/- from Kelu Charan Barik in 1937 on a simple mortgage bond and that they got the amount in two years by instalments but they had executed the mortgage for Rs. 5999/-. They also stated that as Kelu Charan Barik was assessed to an income-tax of about Rs. 6000/- he wanted to avoid further income-tax and therefore got this document executed in favour of the plaintiff. As far as the maintainability of the suit on that account is concerned, I do not think that the defendants can successfully say that the suit filed by the benamidar is not maintainable.

Though benamidar the plaintiff is entitled to maintain a suit on the mortgage. But the real question to be considered is what was exactly the amount received by the mortgagors under the mortgage bond. Defendant No. 1 stated that he received only Rs. 4000/-. Neither Kelu Charan Barik nor his son Krishna Charan Barik who is stated to be at Cuttack at the time when the trial was going on was examined as a witness. Strangely the plaintiff also was not examined as a witness though the defendants went to the extent of saying that the plaint itself was not signed by the plaintiff.

Admittedly the plaintiff generally resides at Calcutta. In view of the specific allegations made by the defendants, it was incumbent on the plaintiff to examine himself, but nevertheless he did not choose to come into the witness box to deny the allegations made by the defendants. P. W. 3 is the brother of the plaintiff and he stated that on the day before the mortgage bond the defendants granted a receipt to have incurred a loan of Rs. 2000/- and that he gave this amount to P. W. 1 in presence of defendants 1 and 2.

He also stated that two months after that he paid Rs. 3999/- to Defendants Nos. 1 and 2. P. W. 1 stated that Rs. 2000/- were placed in his custody by the plaintiff on the date of registration and that they took on 15-4-37 Rs. 400/- and on 23-4-37 Rs. 1100/- in the morning and the rest in the afternoon of that day. This evidence of P. W. 1 is different from the evidence of P, W. 3. The recitals in the mortgage bond do not show the amount of the antecedent debts for discharging which the amounts were borrowed under the mortgage. P. W. 3 also admits that this mortgage bond was the heaviest amount ever advanced by them.

Neither before that nor after that a similar amount was advanced by the plaintiff or his brother. It is not stated in the plaint that the amount advanced under the mortgage bond is the joint family amount of the plaintiff and P. W. 3. Under these circumstances and especially in view of the non-exam-nation of the plaintiff, the defendants' version and their evidence are to be accepted and consequently I hold that the defendants succeeded in proving that the mortgage bond is supported by consideration only to the extent of Rs. 4000/-.

19. The next contention raised by Mr. Patnaik is that the mortgage debt is for Rs. 4000/- and defendants 1 and 2 paid Rs. 4800/- some time in 1943 and Rs. 400/- in 1944. The defendants case is that defendant No. 1 sold gold and paid Rs. 4800/-from the sale proceeds of the gold. Defendant No. 1 also definitely stated that the said payment of Rs. 4800/- was endorsed on the mortgage bond which was in the custody of Kelu Charan Barik, he being the real mortgagee. The original mortgage bond is not produced.

The contention of the defendants is that it was not produced as it contains the endorsement of payment of Rs. 4800/-. I have already held that the loss of the original was not satisfactorily proved. Though defendants 1 and 2 admitted the execution of the mortgage bond, yet as far as the plea of payment of Rs. 4800/- is concerned, the non-production of the original is material as against them also. The loss of the original not having been satisfactorily proved and the original naturally being in the possession of the mortgagee or Kelu Charan Barik, the non-production of the original by the plaintiff and not summoning Kelu Charan Barik or his son to produce the original are enough circumstances to draw an adverse inference against the plaintiff with regard to the non-production of the original Ext. 1(b).

The defendants 1 and 2 proved the payment of Rs. 4800/- in 1943 by letting in evidence of D. W. 1 and other witnesses. D. W. 1 is a goldsmith and he stated that defendant No. 1 sold 50 or 60 tolas of gold between October and January 1350 Sai saying that he had to pay off the dues of Kelu Charan Barik. D. W. 2 Dinabandhu Rout is the Tahasildar of defendant No. 1 and he stated that a few days before Sripanchami in 1943 defendant No. 1 sold about 100 tolas of gold to pay off the loan of Kelu Charan Barik which was to the extent of Rs. 4000/- on a registered mortgage bond.

He also stated that he paid off Rs. 4800/- in 1943 to Kelu Charan Barik and Rs. 400/- to Krishna Charan Barik in February 1943. He also stated that the first payment was endorsed on the back of the original and that the second payment was not paid in his presence. The case of the defendants with regard to this is that after the payment of Rs. 4800/- there was a settlement to calculate interest only at 6 per cent from the date of advance of the loan; that Kelu Charan Barik agreed to receive that amount in full discharge of the mortgage; and that according to that statement Rs. 900/- were found due on the mortgage bond out of which defendants 1 and 2 paid Rs. 400/-.

The endorsement was got written which they signed. Defendant No. 1 stated that at the time of endorsement of the payment of Rs. 400/- he was made intoxicated and was in a hurry to go to the bus. I have already observed that the endorsement was on the reverse of the first page of Ext. 1 (b) which appears similar to the reverse of an original mortgage bond. The endorsement is for Rs. 400/-. The case of defendants 1 and 2 that after the payment of Rs. 4800/- there was a settlement to calculate interest at 6 per cent per annum appears to be true as there is such a recital in Ext. 1 itself.

It is stated in Ext. 1 that it was settled to charge interest only at 6 per cent. This significant statement in Ext. 1 relied upon by the plaintiff clearly shows that the defendants' version of the transaction is true, especially in view of the fact that the original mortgage bond was not produced and its loss was not satisfactorily explained and the plaintiff was not examined in the suit. This settlement being evidenced by Ext. 1, the endorsement of payment of Rs. 400/- which is admitted by the plaintiff and relied upon by him to save limitation is binding on him and he is estopped from contending that it cannot be acted upon.

In this view of the matter, I am of opinion that the mortgage bond was supported by consideration as against defendants 1 and 2 only to the extent of Rs. 4000/-; that it should carry interest according to the settlement endorsed in Ext. 1 at 6 per cent per annum; and that Rs. 4800/- were paid in discharge of the same in 1943 and Rs. 400/- in 1944 and according to the evidence of the first defendant which I accept under the circumstances present in this case corroborated by Ext. 1 a balance of Rs. 500/- only was due under the mortgage bond by the date of Ext. 1, that is, 1-2-44. Defendants 1 and 2 are therefore liable under the mortgage only to the extent of Rs. 500/- by 1-2-44 with 6 per cent interest from that date till the date of the decree. In view of the contentions raised by the plaintiff and the way in which he conducted the suit, he is not entitled to any interest after the dateof decree. He will be entitled to interest pendente lite at the rate of 6 per cent per annum.

20. I would, therefore, set aside the judgment and decree of the learned Subordinate Judge and pass a preliminary mortgage decree against defendants 1 and 2 only for Rs. 500/- with interest at 6 per cent per annum from 1-2-44 till this date. Time for redemption is three months. The appeal is therefore allowed partly. The cost of the parties in the two courts will be in proportion to their success and defeat, that is, the plaintiff will have only costs on the amount decreed and the defendants will be entitled to costs on the amount of the suit claim disallowed in both the courts.

21. Before closing the judgment, I must observe that this case was not tried in a proper manner by the learned Subordinate Judge. The issues were not properly framed. The learned Subordinate Judge did not appreciate how a suit on a mortgage is to be tried and evidence let in. He tried to rectify the mistake in framing issues and trying the case by trying to frame some additional issues on the last day of the trial It is doubtful whether those issues were framed on 13-3-51. The endorsement 'additional issues were framed' in the order-sheet in the writing of the learned Subordinate Judge appears in a different ink.

He seems to have realised the defect only at the time of writing the judgment. He did not even think it necessary in the first instance that a copy of the mortage bond should be let in evidence after the circumstances relating to its loss are established. This document was marked after the close of the trial and on the date of delivery of the judgment. The learned Subordinate Judge should be careful in trying original suits and should follow the procedure laid down according to law. It is regrettable that both parties also did not conduct their cases as they ought to have done.

S. Barman, J.

20. I agree.


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