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Appavu Chettiar Vs. Nanjappa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in20Ind.Cas.792; (1913)25MLJ329
AppellantAppavu Chettiar
RespondentNanjappa Goundan and ors.
Cases Referred(Thorp v. Holdsworth
Excerpt:
- - haldane, for the respondents, while admitting that that presumption is a strong one, and that the burden of proof is upon him to rebut that presumption, contends that the evidence is such as to rebut the presumption. ..the 10th defendant admits full payment of the mortgage amount and the fact that 2nd defendant who should have paid off the mortgage is the party who produces the discharged deed is strong evidence that it really has been paid off. 2 to 5. this ground clearly means that, because the lower court's view on issue no. (i shall not refer to the 10th defendant's admission in her written statement that she endorsed full discharge on the bond before returning it). nor do the grounds of second appeal raise any contention that the plaintiff was prevented by the subordinate.....sadasiva aiyar, c.j.1. the plaintiff is the appellant before us. the allegations on which he brought the suit are:(a) the plaintiff's assignor and the 10th defendant were coobligees under the mortgage bond (exhibit i), dated 1895, executed by the 1st defendant, and each was entitled to one-half of the mortgage amount lent under it.(b) 'the plaintiff understands that the 10th defendant has collected the amount due for her half share in the mortgage-deed.'(c) as the original of the plaint-mentioned mortgage bond (exhibit i) is with the 10th defendant and as she refuses to give it to the plaintiff, this suit is brought on a registration copy (exhibit a).2. the plaintiff sued for recovery of rs. 750 (half of the principal sum mentioned in exhibit i) with interest, rs. 2,152-8-0 (about three.....
Judgment:

Sadasiva Aiyar, C.J.

1. The plaintiff is the appellant before us. The allegations on which he brought the suit are:

(a) The plaintiff's assignor and the 10th defendant were coobligees under the mortgage bond (Exhibit I), dated 1895, executed by the 1st defendant, and each was entitled to one-half of the mortgage amount lent under it.

(b) 'The plaintiff understands that the 10th defendant has collected the amount due for her half share in the mortgage-deed.'

(c) As the original of the plaint-mentioned mortgage bond (Exhibit I) is with the 10th defendant and as she refuses to give it to the plaintiff, this suit is brought on a registration copy (Exhibit A).

2. The plaintiff sued for recovery of Rs. 750 (half of the principal sum mentioned in Exhibit I) with interest, Rs. 2,152-8-0 (about three times the principal), by sale of the mortgaged properties. The defendants Nos. 2 and 7 (subsequent alienees of the mortgaged properties) pleaded among other defences that, in April 1896 itself, their predecessor-in-title had paid up' the whole mortgage amount to the 10th defendant and had got back the mortgage bond, Exhibit I, with the endorsement of full discharge signed by the 10th defendant. The 10th defendant supported the defendants Nos. 2 and 7 by her own written statement and further pleaded that the whole money under the mortgage belonged to her and hence she had received the whole amount long ago.

3. The 2nd and 5th issues settled in the case are: ' Is the discharge pleaded by the defendants true and valid ?' and ' Is the discharge given by the 10th defendant, a co-bligee, valid and binding as against the plaintiff and his assignor ?'. At the hearing before the Subordinate Judge, the plaintiff relied upon the 10th defendant's admissions made in her written statement to the effect that she had received the whole of the mortgage amount and returned Exhibit I with the endorsement of payment made by her thereon, as evidence of the fact of such payment as against the plaintiff. The Subordinate Judge evidently accepted the 10th defendant's said admission as evidence against the plaintiff of the fact of such payment. The Subordinate Judge considered issues Nos. 2 and 5 together, issue No. 2 relating to the fact of discharge. He refers to the fact that the mortgage document, Exhibit I, ' is produced by 2nd defendant and not by plaintiff' evidently to indicate that such production by the 2nd defendant is prima facie proof of discharge by payment. In Bhdg Hong Kong v. Ramanothan Chetty ILR (1902) C. 334, their Lordships of the Privy Council say 'the promissory note which was sued on and the security...are at present in the hands of defendants. Prima facie, therefore, the presumption is, where you find the instrument of a debt and the security for that debt in the hands of the debtor, that the debt has been discharged; but Mr. Haldane, for the respondents, while admitting that that presumption is a strong one, and that the burden of proof is upon him to rebut that presumption, contends that the evidence is such as to rebut the presumption.' The same question was considered long ago in Chuni Kuar v. Udai Ram (1883) ILB 6 A. 73, where it is said that ' in the event of his' (the debtor's) 'producing the bond' the plaintiff should show that it had not been discharged by payment, and that the defendant was ordinarily ' bound to prove' discharge ' either by evidence of the fact' of payment 'or the production of the bond or both.' The Subordinate Judge in deciding the issues Nos. 2 and 5 relied also on the fact that ' the 10th defendant in her written statement admits the full discharge.' The Subordinate Judge further says ' Admittedly, the mortgage-deed was with 10th defendant and she has returned the document with an endorsement of full discharge' etc. The Subordinate Judge dismissed the plaintiff's suit, finding on the issues Nos. 2 and 5 that ' the payment of the whole debt to 10th defendant as admitted by her' is a valid discharge and that the plaintiff cannot sue on the bond as if half the amount thereof was still due. He therefore dismissed the plaintiff's suit without going into the question whether the plaintiff and the 10th defendant each lent half the money or the 10th defendant lent the whole of the mortgage money under Exhibit I (1st issue in the case) and into the other questions raised by the issues Nos. 3, 4, and 6 to 9. In his appeal to the District Court, the plaintiff raised twelve contentions in his appeal memorandum. The 4th and 5th contentions are as follow : ' The lower court has attached undue importance to the written statement of the 10th defendant. The lower court is wrong in assuming that the discharge pleaded by the defendants is true. There is no evidence adduced by the defendants about the discharge pleaded by them and the suit should therefore have been decreed for the plaintiff.' The District Judge says on the point ' 10th defendant said she was paid off in full, and so she has been according to the bond itself and her written statement...the 10th defendant admits full payment of the mortgage amount and the fact that 2nd defendant who should have paid off the mortgage is the party who produces the discharged deed is strong evidence that it really has been paid off.' I take it 'that the District Judge treating (a) the 10th defendant's admission in the written statement as evidence of full payment and discharge as against the plaintiff and (b) the production of the document (Exhibit I) by the 2nd defendant as also evidence of such full payment and discharge as against the plaintiff, dismissed the plaintiff's appeal.

4. The grounds of second appeal are five, namely :-The decree of the lower court is contrary to law.

5. The mortgage-deed having been executed in favour of two persons and the promise to pay having been made to both of them, the District Judge is wrong in supposing that one of them can give a discharge for the whole mortgage amount so as to bind the other.

6. The District Judge erred in holding that the payment of the whole mortgage amount to one of the two mortgagees can in any way absolve the mortgagor or the properties mortgaged from liability for the other mortgagee's share of the amount.

7. The District Judge is wrong in holding that the plaintiff's remedy, if any, is only against the other mortgagee and that he has no right to compel the mortgagor or his assignees to pay him his share of the mortgage money.

8. The Lower courts ought to have tried the other issues arising in the case and found the same in favour of the plaintiff.

9. The 1st ground is the general ground. The grounds Nos. 2 to 4 raise the very same contention in three different ways and it is therefore necessary to consider only the 3rd ground. The 5th ground is that the lower courts ought to have tried the other issues, that is, the issues other than the issues Nos. 2 to 5. This ground clearly means that, because the lower court's view on issue No. 5 that ' payment of the whole mortgage amount to one of the two mortgagees can in any way absolve the mortgagor or the properties mortgaged from liability for the other mortgagee's share of the amount' (3rd ground of second appeal) was wrong, therefore, the suit ought to be remanded for trial of the other issues. I cannot find anything in any of the grounds mentioned in the second appeal memorandum raising the contention that the lower court erred in relying (a) on the admission of the 10th defendant in her written statement in coming to a finding against the plaintiff that the whole amount had been paid to her, and (6) on the production of Exhibit I by the 2nd defendant in coming to the same finding as to discharge. (I shall not refer to the 10th defendant's admission in her written statement that she endorsed full discharge on the bond before returning it). Nor do the grounds of second appeal raise any contention that the plaintiff was prevented by the Subordinate Judge from adducing evidence that the 10th defendant received only half the amount of the bond and that the bond, though in the 2nd defendant's possession, had not been fully discharged. On the other hand, the wording of the 3rd ground of second appeal indicates that the appellant assumes the correctness of the District Judge's' finding as to ' payment of the whole mortgage amount' to the 10th defendant.

10. Under these circumstances, I think that we should not allow the plaintiff to raise the question before us that the lower courts had no legal evidence to go upon for coming to the conclusion that Exhibit I had been discharged by full payment. In fact, it was clear to me from the way in which Mr. Varadachariar for the 2nd appellant began his arguments in this case that the contention as to there being no legal evidence as to discharge was an after thought, the only contention raised by the grounds of second appeal (namely, the legal question whether payment to one co-mortgagee can be effective as against the other) having been decided against the appellant by a recent decision of the Full Bench (two years after this second appeal was filed) in Appeal No. 218 of 1909. Even if this contention about absence of legal evidence could be allowed to be taken, I am clear that the production of the bond by the 2nd defendant shifted the onus of proof on the plaintiff, and there is no contention in the second appeal grounds that the plaintiff was prevented from giving evidence on the 2nd issue. I am further inclined to hold that the admission in the 10th defendant's written statement is evidence of such payment against the plaintiff also under Section 19 of the Indian Evidence Act. I shall very briefly set down my reasons for this opinion. Section 19 of the Indian Evidence Act is as follows:- ' Statements made by persons, whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.' It must be admitted that the wording of the section is highly abstract and involved, but I suppose that most of the rules of evidence, touching, as the subject does, on metaphysical and psychological considerations, are always difficult to formulate in words so as to be understood at once. The framers of the Indian Evidence Act seem to have felt that the section was 'metaphysically' worded (so to say) and appended as an illustration as follows:

A undertakes to collect rents for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

11. Reading the section and the illustration together, it seems to me clear that the Legislature intended that a party to a suit can use the statement of even a third party, if the statement of the third person contained an admission against the interest of that third person and could have been used against the third person if he sues or was sued in connection with a matter involving the position or liability affected by that admission. Cunningham in his book on Evidence says that Section 19 of the Act doss make all such admissions by third persons relevant evidence, though in England such admissions would not be admissible in evidence ' except under the conditions stated in Section 32(3)''. As Cunningham adds, ' what weight would be given to such a statement would, of course, depend on the circumstances', but as regards the relevancy of such a statement under the Indian Evidence Act, I feel clear. Usually, courts should not act upon such admissions (of third persons) alone as sufficient evidence. But if those third persons have had a joint interest with the party to the suit against whom the statement is put forward as evidence or if there are other strong admitted circumstances (as in this case) leading to the conclusion that that statement is very probable, a court might accept the statement as sufficiently shifting the onus of proof. Usually, however, such an admission by third persons is relied on only on corroboration of the other evidence in the case proving the same fact. Almost every judgment dealing with complicated facts relies on such admissions against the interest of another party to the suit or even of a third person as corroborative evidence.

12. That the written statement of the 10th defendant was relied upon as evidence by the 2nd defendant before the Subordinate Judge and the District Judge was not denied by the plaintiff's learned vakil, and the practice of the lower courts does not require statements in the written pleadings of parties or in affidavits receivable in evidence to be regularly marked as documents before they could be acted upon as evidence. Where no other evidence is adduced in a case except written admissions in pleadings, which admissions are relevant evidence under Section 19 or Section 32 of the Indian Evidence Act, it is advisable that such records should be marked as exhibits and then referred to as evidence in the judgment of the court. I also agree with my learned brother that the contentions raised by the issues Nos. 2 and 5 in the case should have been kept more apart from each other in the judgments of the lower courts. I further think that it would have been much more satisfactory if, before acting on the admissions contained in the 10th defendant's written statement and on the fact of the production of the mortgage-deed by the 2nd defendant for his finding on the 2nd issue, the learned Subordinate Judge had called upon the 2nd defendant to adduce some oral evidence also in the usual way as to the payment and discharge. But, as I said before, I think that Section 19 of the Indian Evidence Act does make the admission in the 10th defendant's written statement relevant evidence against the plaintiff. In a recent case before Sundara Aiyar J. and myself, (S.A. No. 1613 of 1908) Sundara Aiyar, J. considered the effect of Section 19 of the Indian Evidence Act and held that the admissions of a third person against his own interest, when it affects his position or liability and when that position or liability has to be proved against a party to the suit, is relevant against that party. A statement whereby ' a man charges himself with the receipt of sums of money' is, in most cases, an admission against his interest. Statements against interest are ' presumed to be entitled to credit because the regard which men pay to their own interest may safely be considered as a sufficient guarantee against their prejudicing themselves by any erroneous statement and the assumed tendency of the declarations precludes the probability of any fraudulent statement.' I know that ' the greater number of cases decided upon this subject ' in England ' refer to written entries ', but, as Phillips says in his Law of Evidence, ' there seems to be no reason why the admissibility of such evidence should be limited to statements in writing'. Whether other facts (other than the statements against interest) mentioned in the same document which contains the statement against interest could be relevant evidence against third persons under 32(3) of the Indian Evidence Act is a question which does not arise in this case and it is unnecessary to say anything on that matter.

13. Even if my views on the points as to the 10th defendant's written statement having been taken by the lower courts as (a) duly placed before them as evidence at the trial and (b) legally admissible as relevant evidence against the plaintiff, are erroneous, there were sufficient materials before the lower courts (namely the production of Exhibit I by the 2nd defendant, etc.) to justify their conclusion on the 2nd issue in the absence of rebutting evidence on the plaintiff's side, and (as I have further stated already) the finding of the lower courts as to receipt of the whole amount of the mortgage money by the 10th defendant is really not attacked in the memorandum of second appeal.

14. I would therefore dismiss this second appeal with costs.

Tyabji, J.

15. This appeal arises out of a suit in which the plaintiff claims the principal amount of Rs. 750 with interest by the sale of the properties mentioned in the plaint. The plaintiff alleges that his assignor advanced on the mortgage mentioned in the plaint the said sum of Rs. 750, and that the 10th defendant advanced a like sum on the same mortgage.

16. The defence is, first that no portion of the mortgage debt amounting in all to Rs. 1,500 was paid by the plaintiff's assignor but that the whole of it was paid by the 10th defendant; secondly, (and this is the point mainly involved in the present proceedings) that the whole of it had been paid off to the 10th defendant and that, as the 10th defendant was, according to the plaintiff, a co-mortgagee with the plaintiff's assignor, such payment was a discharge so far as the mortgagors were concerned. This contention was supported before us on the recent decision of the Full Bench in Mannava Annapurnamma v. Uppala Akkayya : (1913)24MLJ333 by which, sitting in this Court, we are bound. The plaintiff did not prefer any claim in the alternative or otherwise against the 10th defendant, whose position as a defendant in the suit, against whom no relief is sought, but who sides with the other defendants, has been the cause of some confusion.

17. Ten issues were framed by the District Judge before whom the case was placed for settlement of issues. The 2nd issue was 'Is the discharge pleaded by the defendants true and valid', and the fifth, 'Is the discharge given by the 10th defendant, a co-obligee valid and binding as against the plaintiff and his assignor?'

18. The learned Subordinate Judge dealt with only these two issues, and his Judgment ends with the words, ' In the above view I think it is needless to try the other issues'. As to whether the whole mortgage debt had been paid off, the question of fact which is involved in the 2nd issue, the learned Subordinate Judge seems to record no finding; he merely says, 'the possession of the document by the female naturally leads to the inference that the entire bond amount must have been paid by her'. This furnishes no answer to the question of fact whether or not the whole debt had been paid by the mortgagor to the 10th defendant.

19. I think this is an extremely unsatisfactory way of recording a finding, if it can be considered to be a finding at all. Sir Lawrence Jenkins C.J. in Dagdu v. Bhana ILR (1904) B. 420 pointed out the importance of having issues settled with precision. It would however be mere waste of time to settle issues, if, after they are settled by the District Judge, the Subordinate Judge in pronouncing judgment does not answer them definitely, but leaves the matter to be inferred from his reasoning however cogent his reasoning may be. It may, in some cases, be convenient to discuss two or more issues jointly, but that does not justify the absence of a specific finding on each issue, in the form of a categorical reply to the question involved.

20. On turning to the basis on which the learned Subordinate Judge deals with the two issues it will be found that the sentences preceding the sentence above quoted do not refer to any piece of evidence other than the fact that the mortgage-deed is produced by the-assignee of the mortgagor. The learned Subordinate Judge proceeds, so far as I can follow, entirely on that fact and on the allegations in the pleadings, and apparently his chief ground of decision is that the allegations on the part of the plaintiff are improbable or less probable than those on the part of the defendants. The learned Subordinate Judge would have done well if he had tried to keep clear in his mind the difference between legal evidence and the probabilities of the allegations contained in the pleadings.

21. Had the trial and decision of this case been in strict conformity with the procedure laid down by law, it would have been a legitimate matter for comment that the first defendant failed to go into the witness box for proving the alleged endorsement on the mortgage deed on which he relied, and it might have had to be considered whether the inference from such failure would not be sufficiently strong to permit of holding that the money had not been paid. The reference by the Subordinate Judge to what purports to be the 10th defendant's endorsement of full discharge on the mortgage deed is made without any warrant. There was no such endorsement before the Court. No evidence was given of any such endorsement having been made, and the document contains a note on it by the plaintiff's pleader to the following effect: 'I accept the genuineness of the document, except the endorsement of discharge appearing on the back of it.'

22. The judgment of the learned District Judge seems to me to be equally unsatisfactory. There is a similar absence of any specific finding on the various issues before the Court; he deals with the question under consideration in the following terms 10th defendant said she was paid off in full and so she has been, according to the bond itself and her written statement. That is to say, that in the matter of a joint mortgage wherein the shares of the mortgagees are not specified, one, the 10th defendant, admits full payment of the mortgage amount, and the fact that the 2nd defendant, one of the 1st defendants's vendees, who should have paid off the mortgage is the party who produces the discharged deed, is strong evidence that it really has been paid off. On these facts the Sub-Court dismissed the suit. Plaintiff appeals. In my opinion, as between the mortgagor and mortgagees the debt is cleared and this suit cannot be plaintiffs remedy'. Then, he proceeds to discuss the question whether, if the whole of the mortgage money has been paid to one of the co-mortgagees, it constitutes a discharge of the mortgage debt as against the other co-mortgagees also and answers the question in the affirmative.

23. We are asked to proceed on the basis that the whole mortgage money has been paid oft, it being contended that fact is proved by the allegation contained in the written statement of the 10th defendant to the effect that she had received the whole of the mortgage debt. That allegation is put forward before us as amounting to an admission under Section 19 of the Indian Evidence Act, and it is contended that, being made in the written statement of one of the parties, it is already on record and, therefore, may be considered to be evidence in the case.

24. If we accede to this argument, the result will be that a fact on which the parties are at issue (see the 2nd issue) will be assumed to have been proved as against the plaintiff by the very fact of its being alleged in the pleading of one of the defendants, by the very allegation which is necessary to be made in order that the issue may arise and but for which allegation the party making it would have been precluded from contesting the converse, of his own allegation; further that such allegation furnishes in itself the proof of its own truth and that though the person making the statement is a party on the record and presumably present in court, she need neither make the statement on oath in open court nor be subjected to cross-examination. This seems to me a startling result, but it has been argued before us that the result is brought about by the Indian Evidence Act.

25. But for the opinion expressed by my learned brother I should have said that I have no doubt that it cannot be so and should have thought it unnecessary to consider for this purpose the sections of the Indian Evidence Act relating to admissions in detail, as I now proceed to do.

26. Before doing so, however, I must point out that the statement in question is contained in the pleadings of the parties to these very proceedings. ' The whole object of pleadings' in the words of Sir George Jessel, M.R. is to bring the parties to an issue' (Thorp v. Holdsworth (1876) 3 Ch. D. 637 and when we speak of an admission in a pleading it seems to me to be a different thing from such an admission as is contemplated by the 17th and the following sections of the Indian Evidence Act. By an admission in pleadings we generally understand a concession made by one of the parties that a fact alleged in the pleading of the party opposed to him need not be proved. It narrows down the question before the Court. Unless a statement in a pleading is in the nature of such a concession, it can hardly be considered to be a fact admitted in the pleadings for the purposes of the proceedings in which the pleadings are originally filed. When a statement of fact contained in the pleadings does not narrow down the issues, then it should either not have been made in the pleadings at all and may consequently be struck oft, or it must give rise to a fresh fact in issue--its function in the last alternative being (for our present purposes) to make it permissible for the parties to adduce evidence in order to prove or disprove the existence of the fact alleged. That being the function of the statement in the pleading, can that statement itself be adduced as proof of its own truth When a party to a proceeding states that his contention is that a certain fact exists, can raising that contention be proof of the fact alleged to exist ?

27. But assuming that the 17th and the following sections of the Indian Evidence Act apply, does the statement of the 10th defendant made in her written statement fall within the scope of those sections The law of evidence relating to admissions is contained in Sections 17 to 30 of the Indian Evidence Act. Admissions being a particular species of statements, they are distinguished from all other statements by reference to two classes of matters : first by reference to their nature or signification, secondly, by reference to the person making them (who may be shortly referred to as the...declarant). Thus, in the 1st place, Section 17 deals with the essential nature of such a statement, viz., that it must ' suggest any inference as to any fact in issue, or relevant fact.' Next, Sections 18, 19 and 20 deal with the question as to who the declarant must be; Section 18 provides that the declarant must be either a party to the proceedings or his agent; Sections 19 and 20 provide that the declarant may in certain cases be neither a party to the suit, nor his agent, but some such third person as is referred to in those sections. So far, the sections merely define admissions and distinguish them as a species of the genus of statements generally; and the definition of particularization is effected, as I have already stated, by reference first to the nature of the statement and secondly by reference to the relationship that the declarant bears to the proceedings. It is only when we reach Section 21 that we have for the first time any provision about the relevancy or admissibility of such a statement as may fall under the definition of an admission : S. '21 is general; Sections 22 and 23 deal with special cases in which admissions are or are not admissible in evidence; Sections 24 to 29 deal specially with the class of admissions which are made in criminal cases, or confessions; finally Section 30 deals with the effect in evidence of an admission.

28. The general scheme of the law therefore is that in the first place in Sections 17-20 an admission is defined or discriminated from other statements; then in Sections 21-29 it is laid down when an admission is relevant, finally Section 30 deals with the weight to be given to an admission. Hence before a statement can be proved as an admission, it must fall first under Section 17 (as to its nature), next under Sections 18,19 or 20, as regards the declarant; finally, under one of the sections between 21 to 29, as regards its admissibility.

29. Now the statement, the relevance or admissibility of which has to be determined, is the statement by the 10th defendant that; she has received payment of the whole sum due on the mortgage. First, as to the nature of the statement, it must fall under Section 17. Next, with reference to the declarant, the statement must fall under one of the Sections 18, 19 or 20. Thirdly with reference to the relevance or admissibility, it must fall under Section 21 or one of the following sections.

30. I think it does fall under Section 17, as it is a statement suggesting an inference as to the fact whether the whole money has been paid (which is a fact in issue).

31. The second and third points require consideration in detail.

32. In connection with the second point mentioned above viz., that having reference to the person who must have made the statement which is sought to be proved as an admission, I should have thought that reliance would be placed on Section 18 which refers to the statements made by parties to the proceedings, this statement being made by one of the parties. Had that section been relied on then it might have become necessary to consider whether any paragraph other than the first paragraph of that section has any, and if so what, bearing on the present question. The section however that is relied upon is the 19th and not the 18th; and it is contended that Section 19 not only determines the narrow point which in my opinion it determines, viz., by whom a statement may be made before it can be considered to be an admission within the terms of the Indian Evidence Act; but it is contended that Section 19 is wide enough in its own terms for determining whether or not a particular statement is admissible in evidence. That section consists of a rather involved complex sentence, but if it were printed in the following form

Statements

(1) made by persons whose position or liability it is necessary to prove as against any party to the suit,

are admissions,

(2) if such statements would be relevant,

(a) as against persons

(b) in relation to such position or liability in a suit brought by or against them, and

(3) if they are made whilst the person making them occupies such position or is subject to such liability', it would be clear in the first place that the main proposition contained in the section lays down that certain statements are admissions not that they are relevant: in the second place, that before a statement can be considered to be an admission under section, 19, there are three qualifications which the statement must have--two of them having reference to the person making the statement, or the declarant, viz. (1) that he must occupy some such position or liability as is necessary to be proved against any party to the suit, (2) he must be occupying such position or be subject to such liability when he makes the statement. The third qualification has reference to the nature of the statement, viz., (3) that the statement is such that in a suit brought by or against the declarant it would be relevant (a) as against the declarant (b) in relation to such position or liability. This third qualification is, in my opinion, both necessary and sufficient to restrict the operation of the section in accordance with what I have stated to be the object of this section, viz., not to lay down that certain statements are relevant or admissible but merely to add to the category of persons who may be the declarants. The statement referred to in Section 19 becomes admissible only provided that they satisfy the requirement of Section 17, as regards their nature, and Section 21 or any of the following sections, as regards their relevance. In short, Section 19 provides, in my opinion that in certain cases the declarant need not be a party to the suit, and that section must be read with direct reference first to Section 17, which provides (inter alia) that a statement must be made by the persons thereinafter mentioned in order to fall within the definition of an admission, and Section 19 must secondly be read with reference to sections '21 et seq which provide when statements that are admissions are relevant.

33. When the learned pleader for the respondent tried to argue that a reference to Section 19 was sufficient in order to show that the statement in question was admissible in evidence, he naturally encountered some difficulty and he had to fall back upon the illustration and had to argue that the illustration went beyond the Section The illustration does go beyond the section in so far as it illustrates not only who may be the declarant of an admission, but also lays down that ' the statement (therein referred to) is a relevant fact;' the proposition, that the said statement is a relevant fact is, it will be noticed, qualified in two ways, first that it is relevant only against A, and secondly that it is so if A denies that C did owe rent to B. The illustration exemplifies Section 19 in so far as it says that the statement is an admission but as the facts postulated in the illustration conform with the provision of Sections 17 and 21 and not merely with the provisions of Section 19, it is laid down that, in the circumstances referred to, the statement is not merely an admission but also relevant.

34. As I have already stated, the learned pleader for the respondent had perforce to abandon the attempt at bringing the statement now before us within the terms of the Section 19, but contended that the illustration to that section was on all fours. Now, it seems to me to be clear that the illustration would be applicable in its terms only if the 10th defendant had undertaken to collect the mortgage debt due to the plaintiff's assignor and had been sued by the plaintiff for omission to collect the mortgage debt, and then the 10th defendant had pleaded as her defence that there was no default on her part in as much as no money was due under the mortgage; in such circumstances a statement made by the mortgagor (not the co-mortgagee, the 10th defendant) that as a matter of fact some moneys were due to the plaintiff which the 10th defendant had omitted to collect, would have been (it is clear) admissible under the illustration to Section 19. The facts in that illustration, are not, it seems to me parallel to the circumstances of the present case. Supposing the landlord (B in the illustration) had sued his tenants for rent due, and had also for some reason made A party to the suit, alleging that A was his agent for collecting the rent, but claiming no relief against A, and A had denied that he was B's agent, the defence on the part of A and of the tenants being that rent was due to A, and not to B, and that the tenant had paid the rent to A and were not bound to pay it to B, could then the allegation of A (in his written statement) of having received the money, coupled as it would be with his allegation that he was entitled to receive it on his own behalf, and denial that there was any liability on his part to the landlord be itself evidence as between the landlord and his tenants that no rent was due?

35. The illustration to Section 19 does not seem to me to cover the present statement, because the illustration is so framed that the statement therein referred to falls under the provisions of the sections covering the third of the three considerations to which reference has been made above, viz., of Sections 21--29 which provide in what cases admissions are relevant-whereas the present statement does not fall under any out of the said Sections 21-29. The section that is relevant for the present purpose is Section 21, which provides that 'admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or his representative in interest.' I need not refer to the exceptions mentioned in Section 21 as the present statement does not, it is clear, fall under any of them. Now, in this case, the alleged admission is sought to be proved against the plaintiff. The plaintiff is not the person who made the statement. Is he the representative in interest of the person who made it In my opinion it would be straining the language of the section to hold that one co-mortgagee is the representative in interest of another co-mortgagee. What interest does the plaintiff derive from the 10th defendant? If there are any persons who derive any interest as far as this suit is concerned from the 10th defendant, they are the defendants who say that they have been discharged from liability by reason of the discharge given to them by the 10th defendant.

36. But even if it be assumed that the whole of the reasoning on which I have proceeded so far is fallacious, and the statement in question is relevant under the sections of the Indian Evidence Act which have been referred to, still it is clear that some proof of it must be given before it can be considered to form part of the evidence in the case and before the court can take cognizance of it. It is contended, either that it was brought to the notice of the court in such a manner as to render proof of it unnecessary, or that the written statement of the 10th defendant proves itself. I cannot accept either of these contentions; it seems to me that they cannot withstand careful consideration.

37. In support of the contentions last referred to, reliance was placed in the first place on Section 58 of the Indian Evidence Act. Section 58 provides that certain facts need not be proved: that a person need not prove the existence of such of the facts alleged by him to exist, and relied upon by him, as are referred to in Section 58. Now, the facts referred to in Section 58 include two sets of facts; first, those facts which both the parties have agreed to admit, and secondly, those, which by any rule of pleading, they are deemed to have admitted. It is clear that the fact now in question has not been admitted by both the sides; the plaintiff denies it. It is equally clear not only that by the rules of pleading the fact in question is not deemed to have been admitted, but it is one of the main facts in issue. Hence I am unable to understand how Section 58 can operate so as to make it unnecessary to prove the statement in question.

38. The next head of argument was that pleadings form part of the records of the court, and like affidavits, they are one form of adducing evidence before the court. No authority was cited for the proposition that the fact in question could be proved on affidavits, or that one of the ways of giving evidence of fact is for the party relying on it to allege it in his or her pleadings, or that, if the facts come to the knowledge of the court otherwise than through the medium of legal evidence, the rights of the parties can be decided on a consideration of such facts; and I am unable to find any support for these propositions. Pleadings, as I have already said, in ,my opinion, can and must be looked at only for one purpose- to be informed of the allegations and contentions of the parties. , They show conclusively what are the allegations and contentions comprising the case that a person makes and raises before he comes into court. They do not prove that those allegations and contentions are true. Had they furnished any proof of the allegations on which the parties are at issue, the law would not have laid down that, in undefended cases, it is necessary for the plaintiff to adduce any evidence for proving the allegations he has made in his plaint.

39. Finally, even if we could assume that, by some entanglement of the law of admissions, this statement can be considered to be an admitted fact within Section 58 (though the proposition, as I have already said, appears to me to be opposed to all the principles of the law of evidence), it seems to me to be a matter to be borne in mind that there is a discretionary power to call for proof even of facts which may be considered to be admitted under Section 58, and I am not prepared to say that there may not be cases when the failure to exercise this discretion may be so grossly improper, as to make it incumbent upon the court to interfere even in second appeal.

40. For these reasons, I am of opinion that what has been considered as an admitted fact in this case is not so, and that, even if the 10th defendant's statement above referred to can be considered an admission within the terms of the Indian Evidence Act, and thus a relevant fact, then it has not been proved in any manner required or permitted by the law of evidence. It follows that, if the case of the respondents had rested on that statement alone, I should have been of opinion that they must fail on the materials which are now before the court.

41. There is however one other circumstance which has been referred to above and must be considered; it is that the instrument creating the mortgage debt is produced by the alienees of the debtors, and this no doubt creates a presumption that the debt has been paid off. Such presumption may of course be very weak in a case where there are several joint creditors (as is alleged in this case). The instrument may be handed over by one of the joint creditors to the debtor under such circumstances as to raise no presumption of discharge at all, as against the joint creditors other than the one who had custody of the instrument of debt. It may well happen that the joint creditor gives back the instrument creating the debt as soon as his own interest in retaining it in his possession is over, that is, as soon as the debt is discharged to the extent to which he is interested in recovering it, so that the instrument creating the debt may go into the possession of the debtor without the debtor having paid the whole debt, but merely that portion of the debt which was the rightful due of the joint creditor who had the custody of the instrument of debt. On the other hand, it is only natural to presume that, if the plaintiff or his assignor had had any interest in the retention of the mortgage deed by the 10th defendant, there would have been some safeguard against the 10th defendant yielding up the deed without the consent or knowledge of the plaintiff or his assignor, and, in the circumstances of this case, it seems to me that we should not be wrong if we proceed on the basis that the burden of proving that any debt is still due on the mortgage deed lay on the plaintiff, and, if it is so, there is no doubt that the plaintiff had not discharged that burden; nor among the grounds of appeal is it complained of that the plaintiff was prevented from adducing any evidence in support of his case.

42. I should however have been loth to base my decision on the mere ground that the burden of proof had not been discharged in a case of this nature which had been tried as this case has been tried, had I not after giving the case my best consideration come to the conclusion that a remand would result ultimately in the same way as the case stands at present. It seems more than likely that the omission to prove the endorsement on the mortgage deed was through a mere oversight, and that the attention of the parties and of the court was not drawn to the fact that its genuinenesss was not admitted by the plaintiff's pleader; it is possible that the plaintiff was not anxious to bring that omission to the notice of the defendants, and even that for the purposes of the suit it was conceded by the plaintiff that the whole amount of the mortgage debt was discharged. The 10th defendant is now dead, and it would seem that proof could now be given not only of the endorsement of discharge by her, but even of her statement in what was her written statement, when she was a party to the suit under Section 32(2) of the Indian Evidence Act. If this were done (and it could be done by mere formal evidence) it would be extremely difficult for the plaintiff to adduce any evidence which could displace the effect the evidence which would then be before the court on behalf of the defendants; had the plaintiff had any evidence in support of his case and in rebuttal of the inference from these facts, it would and ought to have been indicated, even if by some error in procedure it was not actually adduced in court.

43. Before bringing however this judgment to a conclusion I wish to express once more my view that, if the proceedings at the trial had been conducted with a due regard to the real questions at issue and to the law of evidence and of procedure, the parties might have been saved much unnecessary expense and our decision could have been arrived at on a far more satisfactory basis than is now available.

44. For the reasons that I have stated, I agree that this appeal should be dismissed with costs.


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