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Purushotham Chettiar Vs. Ramanuja Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ237
AppellantPurushotham Chettiar
RespondentRamanuja Padayachi and ors.
Cases ReferredPearey Lal v. Hira Dey
Excerpt:
.....payment of rs. 2,000 pleaded by the defendants is concerned, which they say was endorsed on the suit mortgage, that has got to be accepted, because the admission must be taken as a whole or rejected as a whole. he did not say that that payment was endorsed on the suit mortgage. the evidence on this point on the side of the plaintiffs as well as on the side of defendants is admissible and a conclusion can be arrived at on the basis of that evidence. gopala thevan air1934mad100 ,relied upon by the lower appellate court as well as by the defendants in this case is really not against this, conclusion if it is properly considered. 50 about the end of september, 1924 which payment was endorsed on the promissory note. 10 that this payment was endorsed and that the suit was time bared would.....a. alagiriswami, j.1. this appeal arises out of a suit on a mortgage. the suit mortgage, was executed by the first defendant on 23rd july, 1951 for rs. 6,000. the plaintiff alleged that the first defendant paid rs. 2,000 towards the mortgage on 30th july 1953, but had not paid the balance. the first defendant claimed that in addition to the sum of rs. 2,000 mentioned by the plaintiff, he had made another payment of rs. 2,000 on 10th march, 1958 and had endorsed it on the mortgage. he also contended that a promissory note for rs. 1,250 executed by him in favour of the plaintiff on 29th january, 1957 was also towards the interest due on the suit mortgage. the plaintiff filed the suit on a registration copy of the mortgage alleging that he had lost the original. both the courts below have.....
Judgment:

A. Alagiriswami, J.

1. This appeal arises out of a suit on a mortgage. The suit mortgage, was executed by the first defendant on 23rd July, 1951 for Rs. 6,000. The plaintiff alleged that the first defendant paid Rs. 2,000 towards the mortgage on 30th July 1953, but had not paid the balance. The first defendant claimed that in addition to the sum of Rs. 2,000 mentioned by the plaintiff, he had made another payment of Rs. 2,000 on 10th March, 1958 and had endorsed it on the mortgage. He also contended that a promissory note for Rs. 1,250 executed by him in favour of the plaintiff on 29th January, 1957 was also towards the interest due on the suit mortgage. The plaintiff filed the suit on a registration copy of the mortgage alleging that he had lost the original. Both the Courts below have found that the loss pleaded is not true. They have also found that the second payment of Rs. 2,000 pleaded by the first defendant was true and that the promissory note for Rs. 1,250 had nothing to do with the suit mortgage. But the trial Court dismissed the suit holding that no secondary evidence could be let in regarding the contents of the suit mortgage. The lower appellate Court on the other hand has taken the view that the statement of the first defendant amounted to an admission of the execution of the mortgage and decreed the suit in part. But in respect of the amount due on the promissory note, it has taken the view that the admission of the first defendant has to be taken as a whole and therefore, this sum of Rs. 1,250 will also have to be deducted from the plaintiff's claim.

2. The plaintiff has filed an appeal and the defendants have filed a memorandum of cross objections in respect of the portion decreed against them. All these findings being findings of fact, only two questions arise for decision in this case, (1) Whether secondary evidence could be let in regarding the contents of the suit mortgage or at least the admission of the first defendant could be relied upon for purposes of decreeing the suit and (2) Whether the lower appellate Court was correct in disallowing the sum of Rs. 1,250 due on the promissory note executed by the first defendant. As far as the decreeing of the suit is concerned, I think the lower appellate Court is correct. It has considered a number of decisions bearing on the point, that is, in Chuni Kuar v. Udairam I.L.R. (1884) All. 73; Sri Ram v. Ram Lal (1913)11 All.L.J. 255 Mullu v. Deokaran (1913) I.C. 955; Kukmatullah Khan v. Abdul Azim Khan : AIR1921All218 , Muhammad Zafar v. Zabur Hussain : AIR1926All741 , Pyarey Lal v. Hira Deir : AIR1941All150 Hira Lal v. Ram Prasad : AIR1949All677 ; Sundara Rajali v. Gopala Thevan : AIR1934Mad100 ; Ananta Raguram v. Raja Bemmadevara A.I.R. 1958 A.P. 418, Brahmananda v. Kunduri Charas Das A.I.R. 1939 Ori. 126. The contention on behalf of the defendants is that as the original mortgage have been held by the Courts below not to have been lost, the plaintiff cannot succeed in the suit by producing the registration copy of the mortgage deed alone. Order 7 Rule 14 of the Code of Civil Procedure is relied upon for this purpose. I do not accept the contention on behalf of the defendants that the failure of the plaintiff to produce the document in his possession or authority necessarily means that his suit should be dismissed. The provision regarding the consequence of non-production by the plaintiff of a document in his possession as required under Order 7, Rule 14, is provided in Order 7, Rule 18, which provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. It does not provide for the dismissal of the suit itself. See the decisions in Gopal v. Vishnu I.L.R. (1898) 22 Bom. 971, Lakhpat Pathak v. Chiran Phathak : AIR1937All55 . Under Section 65 of the Evidence Act secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest.

In this case the first defendant's admission amounts to an admission of the execution of the document, and the consideration for the document, as well as the payment of Rs. 2,000 is admitted by the plaintiff. As regards the payment of another sum of Rs. 2,000 pleaded by the defendants, but not admitted by the plaintiff, that also would have to be given credit to, because the admission of the defendants must be taken as a whole and it cannot be accepted in part or rejected in part. See the decision of the Privy Council in Motabhoy Mulla Essabhoy v. Mulji Haridas I.L.R. (1915) 39 Bom. 399 : L.R. 42 IndAp 103 : (1915) 28 M.L.J. 589 where their Lordships have held as follows:

It is permissible for a tribunal to accept part and reject the rest of any witnesses testimony. But an admission in pleading cannot be so dissected and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all.

Therefore, as far as the payment of Rs. 2,000 pleaded by the defendants is concerned, which they say was endorsed on the suit mortgage, that has got to be accepted, because the admission must be taken as a whole or rejected as a whole. But the admission only as far as it relates to what is admitted to be found on the lost mortgage deed is relevant for the purposes of Section 65. His contention regarding the promissory note has nothing to do with the contents of the mortgage deed. He did not say that that payment was endorsed on the suit mortgage. So in seeking to give evidence about that promissory note, the plaintiff is not seeking to give evidence about the contents of the suit mortgage. He is only seeking to give evidence about something which is outside the suit mortgage. It is, therefore, not a case of his seeking to give secondary evidence of the contents of a document which has been lost. He need not therefore rely upon Section 65 (b) of the Evidence Act. Section 91 of the Evidence Act can have no application to the facts of the case. The evidence on this point on the side of the plaintiffs as well as on the side of defendants is admissible and a conclusion can be arrived at on the basis of that evidence. Both the Courts below having found that the promissory note had nothing' to do with the interest due on the suit mortgage, the lower appellate Court was not right in holding that it was compelled by authority to hold that because the first defendant's admission must be either accepted as a whole or rejected as a whole, it was bound to accept the defendants' story regarding the promissory note notwithstanding its finding on the evidence that that story was not true. It follows therefore, that the lower appellate Court was not right in disallowing the plaintiff's claim to the extent of Rs. 1,250 represented by the promissory note by the defendants in his favour.

3. The decision in Sundara Rajali v. Gopala Thevan : AIR1934Mad100 , relied upon by the lower appellate Court as well as by the defendants in this case is really not against this, conclusion if it is properly considered. There the defendant admitted the execution of the promissory note. Both the plaintiff and the defendant agreed that there was a payment of Rs. 35 in July 1924. But while the plaintiff claimed that there. was another payment in May, 1926 or thereabouts, an allegation which was necessary in order to enable the plaintiff to save limitation, the defendant contended that he paid Rs. 50 about the end of September, 1924 which payment was endorsed on the promissory note. The promissory note in that case having been lost, the defendant's admission had to be accepted in full or rejected in full. If the defendant's admission was accepted in full, the suit would be barred by limitation. In the circumstances, the Court could not consider any other evidence and hold that the payment in May 1926 pleaded by the plaintiff could be true. The admission then related to the contents of the lost document and no evidence apart from the admission of the defendant could be received. The ratio of the decision is found in the following sentence in that decision.

To treat the admission of defendant 1 that he and defendant 2 executed the pronote but to divorce it from his statement that the note was discharged except for Rs. 10 that this payment was endorsed and that the suit was time bared would appear to contravene the principle laid down by the Privy Council in Motabhoy Mulla Essabhoy v. Mulji Haridas (1915) L.R. 42 IndAp 103 : (1915) 28 M.L.J. 589.

Therefore, this decision is no authority for the contention urged on behalf of the defendants that because the mortgage deed has been lost, no suit can be maintained on the mortgage. The sentence in that judgment where the learned Judge remarks that the defendants did not admit that the lost pronote was the pronote, as it was described to have been at the time of its loss by the plaintiff was a reference to the fact that the admission by the defendants was only of a pronote with an endorsement on it, which would not save limitation and not an admission of a pronote with an endorsement on it which would save limitation. The decision in Ram Saran Das v. Tulsi Ram A.I.R. 1922 Lah. 417, relied upon by the learned Judge of this Court who decided the case in Sundara Rajali v. Gopala Thevan : AIR1934Mad100 , cannot also help the defendants in this case. It is true that in that case, the Bench held that the promissory note on which the suit was based was not proved to have been lost and that secondary evidence of its existence and contents could not be given in spite of the admission of the defendant about the execution of the promissory note. But the Bench has not considered the effect of the admission made by the defendant in that case and how far that admission could help the plaintiff in that case under Section 65 (b) of the Evidence Act. The decision of the Privy Council in Bonnerji v. Sitanath Das (1922) 42 M.L.J. 403 : L.R.46, is not relevant for the purpose of this case. What their Lordships have held there is that where a proper case for admission of secondary evidence of the contents of a document had not been made out and objection had been taken to the reception of such secondary evidence, it is not permissible to go to other evidence for the purpose of indicating the contents of the written document. There again the question of admission on the part of the defendant which would enable the plaintiff to give secondary evidence under the provisions of Section 65 (b) of the Evidence Act did not arise and therefore has not been considered. As I already mentioned, the evidence regarding the promissory note is not secondary evidence. It does not relate to the contents of the lost document. The decision in Brahmananda v. Kanduri Charan Das : AIR1959Ori126 cannot also help the defendants, because in that case apart from the executants, who admitted the execution of the bond, the minor sons of one of the executants were parties to the suit who did not admit the mortgage and put the mortgagee to proof of the mortgage and the payment of consideration thereunder and that is why it was held that in order to pass a mortgage decree against the minors it was absolutely necessary that the execution and attestation of the mortgage should be proved, because where a party to an attested document admits its execution a third party is not bound by such admission. The decision in Ananta Raghuram v. Raja Bommadevara A.I.R. 1958 A.P. 418, was a case where the defendants pleaded ignorance of the execution of the document for all intents and purposes and that was held a denial of the execution of the document. That case also does not, thus, deal with a case of admission. I may also refer to the decision in Mull v. Deokaran (1913) 20 I.C. 955, where it was held that a suit on the basis of a lost mortgage deed could be maintained where the defendant pleaded that the original was not lost, but had been suppressed as it contained an endorsement of payment on the ground that the pleading of the defendant amounted to an admission of execution of the document. The case in Pearey Lal v. Hira Dey : AIR1941All150 , was one where it was held that 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, and not by any other person. In the present case the admission is by the executant himself. The other defendants have not questioned the execution at all. It is not necessary to refer at length to the other decisions considered by the lower appellate Court. The principle that emerges from a consideration of these decisions and the relevant provision of law is that where a document on the basis of which a suit is laid has been lost or is not in the possession of the plaintiff, the various clauses of Section 65 of the Evidence Act would come into play. But even where those conditions do not apply, if the condition or the contents of the original have been admitted in writing by the person against whom it is proved or by his representative in interest, secondary evidence could be given about the contents of the document and the admission of the person against whom it is proved can itself be relied upon for holding that the facts so admitted have been proved. The admission has to be accepted or rejected as a whole, but that applies only to the contents of the document itself and not to matters which are not contained in that document though it might relate to or be connected with the document which is said to have been lost. There is no rule of law that if a plaintiff, who has a document in his possession, does not produce it, the suit has necessarily to be dismissed. It follows, therefore, in this case that the plaintiff is entitled to succeed in his appeal and the memorandum of cross-objections filed by the defendants has to be dismissed.

4. The Second Appeal is allowed in part with reference to the sum of Rs. 1,250 alone and the Memorandum of cross-objections is dismissed. The parties will bear their own costs. Time for payment 6 months. No leave.


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