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Manoj Kumar Saha and anr. Vs. Nabadwip Chandra Poddar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 826 of 1967
Judge
Reported inAIR1978Cal111,82CWN166
ActsLimitation Act, 1908 - Schedule - Article 132; ;Transfer of Property Act, 1882 - Section 58; ;Contract Act, 1872 - Section 25 (3)
AppellantManoj Kumar Saha and anr.
RespondentNabadwip Chandra Poddar and anr.
Appellant AdvocateB.B. Das Gupta and ;N.R. Biswas, Advs.
Respondent AdvocateBidyut Kumar Banerjee and ;Probodh Ranjan Das, Advs.
DispositionAppeal allowed
Cases ReferredJethibai v. Putlibai
Excerpt:
- m.m. dutt, j.1. this appeal is at the instance of the plaintiffs and it arises out of a suit for enforcement of a mortgage.2. the plaintiffs nos. 1 and 2 are respectively the son and widow of late akshoy kumar saha, who was the sole owner of the premises no. 3, baisnab sett street, calcutta. the defendants nos. 1 and 2 were monthly tenants in respect of two rooms of the said premises and carried on their business under the name and style of 'sachuni ram kanto poddar' which was one of the big wholesale firms and had its principal place of business at bhairab bazar, now in bangla desh. the case of the plaintiffs was that on account of mutual confidence akshoy kumar saha advanced a loan of rs. 20,000/- to the defendants inthe name of their said firm for the purpose of their business on april.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the plaintiffs and it arises out of a suit for enforcement of a mortgage.

2. The plaintiffs Nos. 1 and 2 are respectively the son and widow of late Akshoy Kumar Saha, who was the sole owner of the premises No. 3, Baisnab Sett Street, Calcutta. The defendants Nos. 1 and 2 were monthly tenants in respect of two rooms of the said premises and carried on their business under the name and style of 'Sachuni Ram Kanto Poddar' which was one of the big wholesale firms and had its principal place of business at Bhairab Bazar, now in Bangla Desh. The case of the plaintiffs was that on account of mutual confidence Akshoy Kumar Saha advanced a loan of Rs. 20,000/- to the defendants inthe name of their said firm for the purpose of their business on April 15, 1949 corresponding to Baisakh 2, 1356 B. S. Out of the said loan the defendants paid a sum of Rs. 1,000/- on December 13, 1950 corresponding to Agrahayan 27, 1357 B. S. The said loan transaction was duly entered in the books of account of Akshoy Kumar Saha and after his death in the account books of the plaintiffs. The loan was to carry an interest at the rate of 8% per annum. It was alleged by the plaintiffs that the defendants having failed to pay the balance amount of the ' loan with interest thereon in spite of repeated demands by the said Akshoy Kumar Saha, they deposited with the said Akshoy Kumar Saha the title deeds of their Nabadwip property on December 1, 1952 at the said premises No. 3, Baisnab Sett Street, situate within the town of Calcutta, as security for re-payment of the outstanding loan together with the interest due thereon. The documents that were deposited were the original Bengali deed of sale between Harimati Debi and others as vendors and the defendants as purchasers and two tax receipts of Nabadwip Municipality. On December 6, 1952 the said Akshoy Kumar Saha died leaving him surviving the two plaintiffs as his only heir and heiress. The defendants failed and neglected to repay the mortgage-debt or any part thereof which, with interest, amounted to Rupees 35,000/-. The plaintiffs served a notice on the defendants on November 20, 1964 through their Attorney Radhashyam Saha by registered post with acknowledgment due calling upon the defendants to pay the mortgage dues, but the defendants not having paid the same, the suit was instituted. The plaintiffs inter alia prayed for a decree for a sum of Rupees 35,000/- with interest from the date of suit to the date of realisation, in default, for the sale of the mortgage property.

3. The defendants contested the suit by filing a written statement. It was contended by them that the suit was barred by limitation as the same was not filed within 12 years of the date of the alleged loan. They denied that they had taken a loan of Rs. 20,000/- from the said Akshoy Kumar Saha or that they had deposited the title deeds with him by way of equitable mortgage for the purpose of securing repayment of the said alleged loan. It was alleged by them that after their purchase of the Nabadwip property in 1945, they asked one Haricharan Saha, an employee of the said Akshoy Kumar Saha to procure the sale deed of the said property from the Registration Office. They did not ask the said Harichatan to return the said document to the defendants. Taking advantage of the laches and negligence of the defendants, the said Haricharan fraudulently and in collusion and conspiracy with the said Akshoy Kumar Saha attempted to convert the sale deed into a mortgage by deposit of title deeds.

4. The learned Subordinate Judge, Krishnagar came to the findings that the suit was barred by limitation, that the plaintiffs failed to prove the payment to the defendants of the said sum of Rs. 20,000/- or any part thereof by way of loan, that the plaintiffs also failed to prove the re-payment of the said sum of Rs. 1,000/-, and that though the title deed of the Nabadwip property and the municipal tax receipts were delivered by the defendants to the plaintiffs, the plaintiffs failed to prove that the said title deed and the tax receipts were deposited with the said Akshoy Kumar Saha with intent to create security for the re-payment of the alleged loan. Upon the said findings, the learned Subordinate Judge dismissed the suit. Hence, this appeal by the plaintiffs.

5. The first point we propose to consider is whether the suit was barred by limitation. Under Article 132 of the Indian Limitation Act, 1908 to enforce payment of money charged upon immovable property the period of limitation is 12 years from the date when the money sued for becomes due. Clause (c) of the explanation to Article 132 provides that advances secured by mortgage by deposit of title deeds shall be deemed to be money charged upon immovable property. It is not disputed that the suit is governed by Article 132. According to the plaintiffs, the loan was advanced on April 15, 1949 and the mortgage by deposit of title deeds was created on Dec. 1, 1952. It is apparent that on the date of the alleged mortgage, the loan had become barred. The alleged payment of Rs. 1,000/- on Dec. 13, 1950 is quite immaterial, for the said payment was neither an acknowledgment under Section 19 nor a payment under Section 20 as there was no writing signed by the defendants or their authorised agent acknowledging the debt or the payment.

6. The question is as to what should be the starting point of limitation in the Instant case. It was contended by Mr Bijan Behari Das Gupta, learned Advocate appearing for the appellants that thestarting point of limitation was the date when the mortgage was created. On the other hand, it was urged by Mr. Bidyut Kumar Banerjee, learned Advocate appearing on behalf of the respondents that the limitation of the suit should be computed from the date of the alleged loan, There can be no doubt that if the limitation is computed from the date of the alleged loan, the suit having been instituted on Nov. 30, 1964, that is, 12 years after the said date, it was barred. But if it is computed from the date of the mortgage, the suit would be within the period of limitation. The period of limitation for a suit under Article 132 begins to run from the date 'when the money sued for becomes due.' Much reliance has been placed on the said expression 'when the money sued for becomes due' on behalf of the respondents and it was contended that on the face of the plain meaning of the said expression it should be held that the alleged loan having become due on the date it was advanced, the period of limitation of 12 years under Article 132 should be computed from that date, and the suit having been filed beyond 12 years from that date, was barred It has, however, been laid down by this Court in Nilcomal Pramanick v. Kamini Kumar, (1893) ILR 20 Cal 269, that where a mortgage deed fixed no time for payment, time runs from the date of the deed and if there have been any payments of money by the mortgagor to the mortgagee time runs from the date of the last payment. In a later Bench decision of this Court consisting of Chakravartti C. J. and S. R. Das Gupta J. in Durga Prosad Chamaria v. Merio Galstaun, : AIR1955Cal194 , which was a ease of mortgage by deposit of title deeds, it was held that when no date was fixed about the time when the money would become due, limitation under Article 132 would run from the date of the mortgage. When the mortgage is effected, by deed there is no difficulty in computing the period of limitation for the enforcement of the mortgage, for usually the period for the payment of the mortgage money is fixed in the deed, and in such a case, the limitation runs from the date of expiry of the said period. But in the case of a mortgage by deposit of title deeds, no writing is required under the law and in view of the said decision in Durga Prosad's case, the cause of action would arise on the date of the mortgage, on the assumption that the amount was payable on that date. If, therefore, in the presentcase, the limitation for the suit is computed from the date of the alleged creation of the mortgage by deposit of title deeds, it would be within the period of limitation.

7. It was, however, strenuously urged on behalf of the respondents that a mortgage by deposit of title deeds could not be effected for the purpose of securing a barred debt. This point requires some consideration. Mortgage, as defined in Section 58(a) of the Transfer of Property Act, is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. On behalf of the respondents, it was contended that the debt must be an existing one and not a barred debt. The learned Subordinate Judge has also taken the same view. It has been observed by him that in order to substantiate a case of equitable mortgage by deposit of title deeds and for the purpose of availing Article 132, the prerequisite to be proved by the plaintiffs is that there was a subsisting debt. In other words, his view is that the debt was not barred on the date of the mortgage. In taking that view, the learned Subordinate Judge has derived inspiration from the following observation of Chakravartti C. J. in Durga Prosad's case : AIR1955Cal194 referred to above (at p. 205):

'It need not be denied that there is some absurdity in that theory, because no one borrows money with one hand in order to pay it back with the other, nor does any one lend money in the expectation of or with a view to getting it back immediately. But the theory does not compel the debtor to repay the money at once and the law, by providing a period of limitation for a suit to recover it, in effect enables the debtor to keep it at least for that period.'

The last sentence of the observation has been greatly relied on by the learned Subordinate Judge in expressing his view that the debt must not be a barred debt. We regret, we are unable to accept the view of the learned Subordinate Judge. By the said observation, Chakravartti C. J. has not, in our opinion, laid down any principle of law which may be said to lend support to the view that the debt must be an existing debt in the sense that it is not barred. The Transfer of Property Act has not defined an 'existing debt.' A barred debt means a debt therecovery of which by the lender is barred by the law of limitation. But the debtor is not precluded from paying off the debt in spite of the recovery of the same being barred. The obligation of the debtor is not wiped out by the lapse of time, even though the lender is precluded from enforcing the said obligation of the debtor to pay the debt. Under Section 25(3) of the Contract Act, a promise made in writing and signed by the borrower to pay a barred debt is a valid consideration for an agreement. It was contended on behalf of the respondents that in order that a mortgage by deposit of title deeds may be created for the purpose of securing a barred debt, it should be preceded by a promise in writing signed by the debtor to pay the barred debt. In other words, it was argued that a time-barred debt could not be a consideration for a mortgage. It is true that there is no promise in writing to pay the barred debt and so Section 25(3) does not apply to the instant case. When a barred debt is secured by a mortgage of property, it is not a mere promise to pay the debt. The effect of the mortgage is that if the mortgagor fails to pay off the debt within the stipulated period, the mortgagee will be entitled to realise his money by the sale of the property. The mortgagor does not pay the money, but he transfers an interest in the property to the mortgagee for payment of the debt. By the mortgage, the mortgagor creates an interest in the property in favour of the mortgagee in lieu of the debt. In that sense, it may somewhat be regarded as a discharge by the mortgagor of his liability to pay the debt. It has been already stated, that the debtor is always at liberty to pay off his debt even though the same is barred. By the creation of the mortgage a new relationship between the borrower and the lender is also created, namely, that of a mortgagor and mortgagee. Section 25(3), therefore, is not at ell attracted and is not required to be complied with for the purpose of discharging the obligation of the debtor to pay the mortgage debt, which he does by transferring an interest in the property to the mortgagee. No authority in support of the contention of the respondents was placed before us. We have, however, come across a decision of the Bombay High Court in Jethibai v. Putlibai, (1912) 14 Bom LR 1020. In that case, Beaman J. observed as follows:--

'It is also well settled that an executor may pay a time-barred debt. I alsoagree with Mr. Dastur that if Ext. E be proved to the satisfaction of the Court to express the whole truth of the matter, then it could not be attacked on the ground that it fails to comply with the requirements of Section 25 of the Contract Act, for a mortgage, whether legal or equitable by which security is given for a debt, is something. I think, quite different from a mere agreement to pay a debt otherwise time-barred. In the case of a legal mortgage no opening exists for any such argument as that upon which the defendant here relies, for there the form of the instrument would, were that necessary, comply in all respects with the requirements of Section 25; yet I do not think that in any contest upon it, it would really be brought for the purpose of argument within the scope of that section, and the case appears to me to be precisely the same where the alleged mortgage is equitable instead of legal, that is to say, analysis reveals that what has been done between the parties is something more than a mere agreement to pay in future (which is what Section 25 of the Contract Act sanctions in the case of an otherwise time-barred debt). By the deposit of title-deeds as security for debt whether time barred or not, the equitable mortgagor virtually discharges the debt by assigning to the creditor an interest corresponding in money value with the debt due on the property mortgaged.'

8. We respectfully agree with the above observations of Beaman J. In view of the principles of law discussed above we do not find any reason why a mortgage by deposit of title deeds cannot 'be effected for securing the repayment of a debt otherwise barred. In such a case, the money becomes due on the day the mortgage is created by the deposit of title deeds and the limitation of 12 years for the enforcement of the mortgage has to be counted from the date of the mortgage. The present suit having been filed within 12 years of the date of the alleged creation of the equitable mortgage by deposit of title deeds, it was not barred.

9. Now we may consider the plaintiffs' case of advancement of the loan of Rs. 20,000/- to the defendants on April 15, 1949. The plaintiffs have sought to prove the loan by oral as also documentary evidence. The payment of the sum was entered in the account books of the plaintiffs. The entries in the Khatian and Rokar books are Exts. 4 and 5. The entry Ext. 5 shows that the payment of thesum of Rs. 20,000/- was made to 'Sachuni Ram Kanto Poddar' through Debendra Chandra Saha who was admittedly an employee of the defendants. P. W. 2 Gobinda Chandra Saha who was an employee of Akshoy had made the entries Exts. 4 and 5. He has proved the same. He has also proved the entries in the Khatian and Rokar, Exts. 4 (a) and 5 (a) respectively about the payment of Rs. 1,000/- by the defendants towards the loan. The plaintiff No. 2 Saibalini Saha (P. W. 1), the widow of Akshoy says that the defendants took a loan of Rs. 20,000/- for their business. She was present when they borrowed the said sum from her husband. It is her evidence that she brought out the said sum of money from the safe and handed over the same to her husband who then paid the money to the defendants. She has also spoken about the repayment of Rs. 1,000/- by the defendants.

10 The learned Subordinate Judge has not believed the plaintiffs' case of the advancement of the loan and repayment of Rs. 1,000/- by the defendants. He has pointed out certain discrepancies in the evidence of P. Ws. 1 and 2 which will be stated presently. P. W. 1 Saibalini Saha has said in her evidence that at the time of payment to the defendants, besides she and her husband, the employees Hari-charan Saha and Gobinda Chandra Saha were present on one side and the defendants were present on the other. P. W. 2 Gobinda's evidence is that in his presence the defendants had taken the money. The learned Subordinate Judge points out that in Ext. 5 there is no mention of the names of the defendants, but as stated already, it has been recorded in Ext. 5 that the payment was made to 'Sachuni Ram Kanto Poddar'' through (marfat) Debendra Chandra Saha. It is said by P. W. 2 Gobinda that as Debendra counted the money, so Ext. 5 referred to him. The name of Debendra has not, however, been mentioned in the plaint. The learned Subordinate Judge points out that in her evidence the plaintiff No. 2 did not tell the name of Debendra. Further, he observes that if the proprietors, namely, the defendants were personally present, it was not understandable why the name of Debendra was kept on the record as the person receiving payment. Apart from the above discrepancies, the learned Subordinate Judge has also relied on certain circumstances in disbelieving the advancement of the sum of Rs. 20,000/-. The circumstances are the absence of any writing for the loan, plaintiffs' failure to get an acknowledgment from the defendants and though legal advice was available to the plaintiffs as the P. W. 3 Radhashyam, a Solicitor, is the son-in-law of the plaintiff No. 2, no written notice demanding payment from the defendants was sent till November 20, 1964.

It is true that there are some discrepancies in the evidence of P. Ws. 1 and 2, but in our opinion, the learned Subordinate Judge should not have taken the same so seriously. It should be borne in mind that the said witnesses deposed about sixteen years after the loan transaction, and it was but natural that some discrepancies would occur in their evidence, particularly about the persons who were present at the time of the advancement of the loan, It is the positive evidence of the plaintiff No. 2 (P. W. 1) that as asked by her husband she brought out from the safe the sum of Rs. 20,000/-and handed over the same to her husband who paid the same to the defendants. After the lapse of about sixteen years, it is not expected that she should remember every bit of particulars. Still she has said, as far as she remembers, that besides her husband, Haricharan and Gobinda were present at that time. She has not mentioned the name of Debendra Chandra Saha who, according to P. W. 2 Gobinda and the entry Ext. 5, had received payment. The learned Subordinate Judge has commented on her omission to mention the name of Debendra without at all considering that she was deposing about a transaction which had taken place sixteen years ago. The criticism of the learned Subordinate Judge of the evidence of the plaintiff No. 2 is not at all justified. The plaintiff No. 2 is a pardanashin lady and she lost her husband a little over three years and a half of the loan transaction. It is not the case of the defendants that she had any grudge or enmity against them. In these circumstances, we do not find any reason why she would give false evidence about the advancement of loan to the defendants. It is not at all believable that a lady of the status of the plaintiff No. 2 would concoct a story of payment of Rs. 20,000/-to the defendants sixteen years ago and depose to the same on oath in a Court of law.

11. We may now deal with the discrepancy between the entry Ext. 5 and the evidence of P. Ws. 1 and 2 regardingthe presence of the defendants at the time of the advancement of the loan. Ext. 5 records payment of the money to the firm of the defendants through their employee Debendra Chandra Saha. Both P. Ws. 1 and 2 have said that the defendants were present. P. W. 2 Gobinda was an employee of Akshoy and after his death he worked under the plaintiffs till 1959. It is not the case of the defendants that the Khatian and the Rokar books and the entries Exts. 4 and 5 therein were not kept or the said entries were not made in the regular course of business, nor is there any finding by the learned Subordinate Judge to that effect The entries have been proved by the P. W. 2 Gobinda. We have examined the said books of account and we have not been able to find out anything that may give rise to a suspicion about the genuineness of the entries. In our opinion, the entries have been made in the regular course of business. The payment of the said sum of Rs. 20,000/- as recorded by the entries Exts. 4 and 5 finds corroboration from the evidence of P. Ws. 1 and 2, In these circumstances, the fact recorded by the entries cannot but be accepted.

12. The entries do not mention the names of the defendants, but they record payment of the money to the defendant's firm through Debendra Chandra Saha. It may be reasonably inferred from the trend of the evidence of Debendra (D. W. 1) and the defendant No. 2 (D. W. 2) that the defendants usually remained absent from Calcutta in connection with their business at Bhairab Bazar, then in East Pakistan. It transpires from the evidence of Debendra that he had authority to receive and spend money on behalf of the firm of the defendants. It seems that Debendra was looking after the business of the defendants at Calcutta and it was he who had received the said sum of Rs. 20,000/- as loan on behalf of the defendants as recorded by Ext. 5. Debendra has, of course, denied the receipt of any money from Akshoy or payment by him of the sum of Rs. 1,000/- towards the repayment of the loan. The defendant No. 2 has also denied the loan as also the alleged repayment. We are, however, unable to place any reliance on their evidence. Debendra was in the employment of the defendants on the date of his deposition and it was not at all surprising that he would support his employers. D. W. 2 is the defendant No. 2 and his evidence, in our opinion, is far from satisfactory. We shall have occasion to consider his evidence later in regard to the deposit of title deeds. It follows from the discussion made above that the defendants were not present at the time of the loan. We do not, however, consider that the discrepancy between the evidence of the P. Ws, 1 and 2 and the entry Ext. 5 as to the presence of the defendants is of such significance as to reject both the entry and their evidence, it might not be possible for either of them to accurately remember at such a distant point of time whether the defendants were present. The loan was undoubtedly given to the defendants, not directly, but through their employee Debendra. After the lapse of several years if the plaintiff No. 2 and her employee Gobinda say that the defendants were present, we do not think that their evidence as to the advancement of loan would become unworthy of credit.

13. The learned Subordinate Judge has commented much on the absence of any writing evidencing the loan, the failure of Akshoy and the plaintiffs to get a written acknowledgment from the defendants and the inordinate delay in serving the notice of demand. The above circumstances have also been relied on by the learned Subordinate Judge in disbelieving the loan transaction. It has been found by him that there was mutual good feeling between Akshoy and the defendants. The defendant No. 2 admits in his evidence that he and the defendant No. 1 were on good terms with Akshoy. The learned Subordinate Judge has observed that monetary transactions between business people are very often entered into without taking recourse to any writing. The said observations of the learned Subordinate Judge about the mutual good feeling and relationship between Akshoy and the plaintiffs on the one hand and the defendants on the other and the usual practice among business people to enter into monetary transactions without writing, do not at all justify the criticism made by him of the failure of Akshoy or the plaintiffs to get an acknowledgment from the defendants. It is not that after advancing the loan, Akshoy did not take any steps for securing payment of the money, but as the plaintiffs' case goes, the defendants deposited the title deeds of their Nabadwip property with Akshoy with intent to create security for the loan. A mortgage effected by the deposit of title deeds, that is, an equitable mortgage does not require any writing. After the debt was secured, we do not think that there was any further) necessity for getting a written acknowledgment for the loan from the defendants, regard being had to the friendly relationship the parties had at that time. Law requires that the suit for the enforcement of the mortgage has to be filed within the period of limitation, and the plaintiffs have, in our opinion, filed the suit within time. They have to prove the loan and the mortgage, either by documentary or oral evidence, but to reject their case simply because there is no acknowledgment of the loan in writing, will be highly unjustified.

14. The learned Subordinate Judge has taken notice of the service of the demand notice, Ext. 6-A at the last moment, that is, a few days before the institution of the suit. But he should have also considered the fact that the defendants remained silent even after the receipt of the notice. It was contended on behalf of the defendants that as they had received the notice a few days before the institution of the suit, so they did not reply to the same. This contention is without any substance. The defendants were not aware of the filing of the suit till the service of the summons upon them. The suit was filed on Nov. 30, 1964 and the defendants entered appearance on January 25, 1965. There is, therefore, no explanation why the defendants did not reply to the demand notice. Moreover, it is the evidence of P.W. 3 Radhashyam who is the son-in-law of the plaintiff No. 2 and a solicitor, that he demanded the money back from the defendants, but they did not make any payment. They assured him that payment would be made subsequently and also asked him not to worry as their Nabadwip property was mortgaged. The learned Subordinate Judge has not accepted the evidence of P.W. 3. We, however, do not find any reason why we should not believe his evidence. P.W. 3 is a solicitor of this Court and it was he who issued the demand notice, Ext. 6-A. It was not at all unlikely that he had made oral demands to the defendants for the payment of the money before he finally made the demand in writing.

15. The last thing which remains to be considered is whether a mortgage by deposit of title deeds was created in accordance with law. It is the positive case of the plaintiffs that the defendants handed over to Akshoy their title deedof the Nabadwip property and two municipal tax receipts with intent to create security thereon. The said documents have been produced by the plaintiffs. The fact that the documents are coming from the custody of the plaintiffs is not by itself sufficient to prove that the same were delivered to Akshoy with intent to create security thereon. But at the same time, that act is very significant, and unless the defendants satisfactorily explain how the documents could go to the custody of the plaintiffs, it would have a great bearing on the plaintiffs' case of the creation of the mortgage. The positive case of the plaintiffs is that on December 1, 1952, the defendants delivered to Akshoy the title deed of their Nabadwip property and two municipal tax receipts, as security for the repayment of the loan of Rs. 20,000/-. Let us now consider the explanation of the defendants as to the plaintiffs' custody of the documents. In paragraph 6 of their written statement, it has been alleged by the defendants that they purchased the Nabadwip property in 1945 and asked one Huricharan Saha, an employee of Akshoy, to procure the title deed of the said property from the Registration Office, that they did not ask Haricharan to return to them the said documents, and that taking advantage of the laches and negligence of the defendants, Haricharan fraudulently and in collusion and conspiracy with Akshoy attempted to create a mortgage by deposit of title deeds. In his evidence the defendant No. 2 (D. W. 2) sought to improve the case pleaded in the written statement. He said that Haricharan was authorised by his elder brother, the defendant No. 1 who was, however, not examined. In his cross-examination, he admitted that he was not present when the said authority was given to Haricharan by his elder brother. Although it has been specifically pleaded in paragraph 9 of the written statement that the defendants did not ask Haricharan to return the documents, the defendant No. 1 alleged in his evidence that he asked for the deed from Haricharan in 1359 or 1360 B. S. at Nabadwip and the latter said that he would give the same afterwards. It has been observed by the learned Subordinate Judge that the case as sought to be made out by the defendants is no better than frivolous. He has accepted the plaintiffs' case that the documents of title of the Nabadwip property were made over by the defendants themselves, but he holds that the plaintiffs have failed to prove that the documents were handed over by the defendants with the intention of creating an equitable mortgage. Obviously, as the learned Subordinate Judge has found that the defendants had not taken any loan from Akshoy, it was practically impossible for him to hold that an equitable mortgage was created for securing the loan. We, however, agree with the learned Subordinate Judge that the case of the defendants that Haricharan was asked by them to bring the title deeds from the Registration Office is false and frivolous and fit to be rejected on the face of it.

16. The plaintiff No. 2 and P.W. 2 Gobinda have categorically stated that the defendants deposited the title deeds to create a mortgage for securing the loan of Rs. 20,000/-. Both of them were present at the time of the deposit and there is no reason why we should not believe them. In the Rokar book the entry Ext. 5 (b) has been made. Ext. 5 (b) records the fact of deposit of the title deed of the Nabadwip property and two municipal tax receipts. The learned Subordinate Judge has not been able to place reliance on Ext. 5 (b). It has been observed by him that Ext. 5 (b) was not a contemporaneous entry and it was written with a different pen. We have looked into Ext. 5 (b) and we have not found anything to indicate that it was not a contemporaneous entry or that it was not written with the same pen. Even assuming that the learned Subordinate Judge is correct in making the said observation, in our opinion, that would be quite immaterial because of the oral testimony of P. Ws. 1 and 2 and the most significant fact that the defendants have miserably failed to explain the custody of the plaintiffs of the title deeds. We believe the evidence of the witnesses of the plaintiffs including that of the plaintiff No. 2 and hold that Akshoy advanced a loan of Rs. 20,000/- to the defendants on April 15, 1949, that on December 13, 1950 the defendants paid a sum of Rs. 1,000/- towards the loan, and that on December 1, 1952 the defendants deposited with Akshoy the title deed of their Nabadwip property along with two tax receipts with a view to creating an equitable mortgage as security for the repayment of the outstanding loan bearing interest at 8% per annum. It has been already held by us that the suit has been filed within the period of limitation.

17. For the foregoing reasons, the judgment and decree of the learned Sub-ordinate Judge are set aside and the suit is decreed in a preliminary form with costs. It is declared that a sum of Rs. 35,000/- plus interest on the principal sum of Rs. 19,000/- at the rate of 8 per cent per annum from the date of the institution of the suit, is due by the defendants to the plaintiffs. If the defendants pay into the court below the amount as declared above within four months from date together with the decretal costs and other costs that may be incurred by the plaintiffs and interest at the above rate on the principal sum, from this date up to the time of actual payment, the plaintiffs shall deliver up to the defendants, or to such person as the defendants will appoint, all documents in their possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendants at the defendants' cost free from the mortgage and from all incumbrances created by the plaintiffs or any person claiming under them. In default of the defendants' paying as directed above, the plaintiffs shall be entitled to apply for a final decree for sale of the mortgaged property or a sufficient portion thereof for the realisation of the decretal dues.

18. The appeal is allowed with costs. The Court below is directed to draw up a preliminary decree in accordance with law and the directions given hereinabove. No order need be made on the connected application which shall be deemed to have been disposed of.

Sharma, J.

19. I agree.


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