Skip to content


Kamalapati Banerjee Vs. Bejoy Lal Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.291
AppellantKamalapati Banerjee
RespondentBejoy Lal Roy Chowdhury and ors.
Cases ReferredManagi Singh v. Saheb Ram Singh
Excerpt:
parties, non-joinder of - effect of, in mortgage suit--transfer of property act (iv of 1882), section 85--registration act (iii of 1877), section 60--signature--hand-writing--test of genuineness--evidence act (i of 1872), section 39--account books, non-entry in, no evidence--covenant that payment not endorsed on bond not to be recognised--proof of payment not endorsed, allowable--interest after date fixed for redemption. - 1. the events which led to the litigation out of which the present appeal arises lie in a narrow compass and do not admit of any doubt or dispute. on the 27th november 1887, one ashutosh banerjee executed a mortgage by way of conditional sale in favour of harendra krishna mukherjee. the principal was stated in the deed to be rs. 7,000 and was to carry interest at the rate of 12 per cent, per annum. the due date was specified to be the 12th april 1894. the mortgagor died on the 20th march 1892 and the mortgagee died towards the end of december 1895. on the 23rd june 1905 two of the four sons of the mortgagee transferred their interest in the mortgage debt to one bejoy lal chowdhury and on the 13th august 1905 the assignee along with the other two sons commenced the present action against.....
Judgment:

1. The events which led to the litigation out of which the present appeal arises lie in a narrow compass and do not admit of any doubt or dispute. On the 27th November 1887, one Ashutosh Banerjee executed a mortgage by way of conditional sale in favour of Harendra Krishna Mukherjee. The principal was stated in the deed to be Rs. 7,000 and was to carry interest at the rate of 12 per cent, per annum. The due date was specified to be the 12th April 1894. The mortgagor died on the 20th March 1892 and the mortgagee died towards the end of December 1895. On the 23rd June 1905 two of the four sons of the mortgagee transferred their interest in the mortgage debt to one Bejoy Lal Chowdhury and on the 13th August 1905 the assignee along with the other two sons commenced the present action against the two sons of the mortgagor for foreclosure and possession of the mortgaged premises. Subsequently, on objection taken by the defendants as to the genuineness of the assignment of the mortgage, the assignors who had been originally joined as pro forma defendants were transferred to the category of plaintiffs on the 6th December 1906. The suit, therefore, as now constituted may be treated as one by all the sons of the mortgagee and the person who claims to be the assignee from two of them. The claim was resisted by the defendants substantially on three grounds, namely, first that on the 7th November 1897, one of the properties included in the security was purchased at an execution sale by one Ram Chandra Chackerbutty who ought to be made a party defendant under Section 85 of the Transfer of Property Act; secondly, that although Rs. 7,' 00 was stated to be the consideration money for the mortgage, yet as a matter of fact only Rs. 4,500 was advanced at the time and thirdly, that various payments were made from time to time towards the satisfaction of the debt by means of which it was alleged the entire mortgage had been wiped out. In the Court of first instance, the Subordinate Judge held that the first objection was not sustainable as the alleged purchaser was not shown to be beneficially interested in the property. Upon the second point he held in favour of the plaintiff. Upon the third point he found that the defendants had in part established their defence and he gave them credit for various payments proved to have been made from 1887 to 1902 for which no credit had been allowed in the plaint. These payments, the Subordinate Judge found, were made to the mortgagee and after his death to his representatives, out of the collection of two of the properties included in the mortgage security, which, it was subsequently arranged by the parties, should be regularly received by the mortgagee towards the satisfaction of the debt. The Subordinate Judge, however, overruled the contention of the defendants that a sum of Rs. 3,000 had been paid by their father to the mortgagee on the 23rd August 1891. In this view of the matter, he made a decree in favour of the plaintiffs for a sum of nearly Rs. 14,000 and directed that upon failure on the part of the defendants to pay this sum within 6 months, they be absolutely debarred to redeem the mortgage and the plaintiff be placed in possession of the properties. The first defendant alone has appealed against this decree, and on his behalf the decision of the Subordinate Judge has been challenged substantially on four grounds, namely, first, that the suit as framed was defective and was not maintainable in view of the provisions of Section 85 of the Transfer of Property Act, secondly, that upon the evidence it ought to have been held that only Rs. 4,500 out of the principal sum named in the deed had been actually advanced; thirdly, that the defendants were entitled to credit for the payment of Rs. 3,000 which was proved by the evidence to have been made on the 25th August 1891 and, fourthly, that a sum of Rs. 100 which had been advanced to one of the sons of the mortgagee should not have been included in the mortgage-decree. On behalf of the respondents, the validity of each of these objections has been challenged, and it has been urged in addition, first, that the Court below should have allowed interest on the Government revenue paid by the mortgagees for the protection of the mortgaged premises from the date of each payment, secondly, that interest ought to have been allowed upon the costs incurred by the mortgagee for the defence of the mortgaged properties in a previous litigation from the date when the costs were incurred and were made payable by the mortgagor by agreement of parties on the 27th July 1897, and thirdly, that the interest on Rs. 100 which had been rightly added to the mortgage-decree, should have been calculated from the date of actual payment that is from 1896, and fourthly, that interest ought to have been allowed on the aggregate sum. decreed from the date fixed for re-payment in the decree and not merely upon the principal sum found to have been advanced.

2. In support of the first contention of the appellant, our attention has been invited to the fact that the objection as to defect of parties was taken at the earliest possible stage of the suit, namely, in the written statement of the defendants. Oar attention has also been called to portions of the evidence to show that one of the properties included in the mortgage was sold at an execution sale on the 7th November 1897 and was purchased by a man named Ram Chunder Chackerbutty. Under these circumstances it has been argued on the authority of the decision of the High Court of Allahabad in Ghulam Kadir Khan v. Mustakim Khan 18 A. 109 that the frame of the suit is defective and it ought to be dismissed. In answer to this argument it has been contended on behalf of the plaintiffs-respondents that the purchase by Ram Chunder was not for his own benefit and that he nominally acquired, the property really for the benefit of the mortgagors. The evidence discloses that Ram Chander was an officer of the Mukerjee family of Janai where the mortgagor resided, that he had no relations in Janai, that he never took the sale certificate in respect of the property purchased nor did he obtain delivery of possession. The mortgagors have continued in occupation of the property in spite of the sale and apparently have paid Ram Chunder a considerable portion, if not the whole of the purchase-money. It further appears that Ram Chunder died some years ago and that his sons have had no concern with the property. Under these circumstances the view taken by the Subordinate Judge that Ram Chunder is not proved to have had such interest in the property as would make his representatives necessary parties under Section 85 of the Transfer of Property Act is reasonable. It may be added that if Ram Chunder purchased the property so far back as the 7th November 1897 and up to the present time has not taken possession of the property, his right if any would shortly be extinguished by limitation. It may also be pointed out that the extreme view taken in the case of Ghulani Kadir v. Mustakim Khan 18 A. 109 has not been adopted in this Court. It has been ruled here Jamuna Parshad v. Ganga Pershad Singh 19 C. 401; Rammoy Hazra v. Preni Chand Naslcar 5 C.W.N. 423 that the only effect of the failure of the plaintiff to bring on the record a person who has an interest in a payment of the equity of redemption is to leave his rights untouched, with the consequence that if the plaintiff obtains a decree for foreclosure, he may subsequently find himself liable to be redeemed by the person who had been left out from the litigation. It is further obvious that, under such circumstances, the proper course would be to bring on the record the party who has been left out, for as is pointed out by Bowen, L. J., in Van Gelder v. Sowerby 44 Ch. D. 374. 'It is of the essence of modern procedure to take care that an action shall not be defeated by the non-joinder of right parties and if the Judge sees that a mortgagee's presence is necessary for the purpose of doing justice, he, ought not to allow the action to be defeated, but order him to be made a defendant'. 'When a party in interest is not made a party to the suit, the decree is not generally for this reason wholly void. It is effectual as against these persons interested in the equity who are made parties. The effect of the decree is to vest the estate in the purchaser subject to redemption by the owner of the equity or other persons interested in it who were not made parties to the proceeding, if for any reason a party-in-interest is not male a party, his interest maybe foreclosed in a subsequent action. In the case before us the conduct of the defendant was not entirely free from blame. When he took the objection in the written statement, his position was that Ram Chunder Chackerbutty, the recorded purchaser, ought to be made a party. In the course of the evidence, however, it transpired that Ram Chunder had died some years before the suit and that he had left an heir whose residence was not known. Under these circumstances the mortgagee can hardly be expected to bring the representative of Ram Chunder on record. There is manifestly no substance in the first objection and it must consequently be overruled.

3. The second ground raises the question of the precise amount of the principal sum advanced under the mortgage. The deed itself recites that the principal sum advanced was Rs. 7,000 and the endorsement made by the Registering Officer which under Section 60 of the Registration Act is admissible in evidence in proof that the facts mentioned therein have actually occurred, shows that the mortgagor admitted before the Sub-Registrar that he had received the entire consideration-money as stated in the deed. Under these circumstances, the onus lies heavily upon the representatives of the mortgagor to show that only Rs. 5,400 was advanced. The evidence they have produced for this purpose is not trustworthy and is of an inconclusive character. The depositions of Kristodhan and Peary Mohun merely indicate that at the assembly in which the document was executed the whole of the consideration-money was not paid and that the mortgagor received from the mortgagee a sum of Rs. 5,400 only. It is common ground, however, that the whole of the money was not paid on that occasion. The case for the mortgagee is that part of the money had been advanced before the execution of the document as the mortgagor was in urgent need of money, and the mortgagee did not hesitate to trust him as they were on terms of intimacy and friendship. Some stress was laid on behalf of the appellant upon the circumstance that two of the currency notes mentioned in the mortgage-deed as part of the consideration are proved to have been withdrawn from circulation and cancelled by the Currency Office on the 24th of November 1887, that is, three days before the execution of the mortgage. It is extremely improbable, however, that serial number of currency notes would be entered in 1 a mortgage-deed unless they were really paid or at least unless the mortgagee knew that they were at the time in circulation. The circumstance upon which stress is laid is perfectly consistent with the case of the plaintiffs. If, as they alleged, part of the consideration was paid to the mortgagor before the execution of the deed, the currency notes. in question might well have been received by the mortgagor, paid by him to his creditors and cashed by the latter at the Currency Office. This theory is strongly corroborated upon a close examination of the evidence. The mortgage-deed shows upon the face of it that although it was not executed till the 27th November and registered till the 29th the stamp paper on which it was engrossed was purchased by the mortgagor on the 23rd of November. This indicates that on or before that date negotiations for the mortgage must have been concluded. This is also borne out by the evidence of Rai Charan, one of the officers of the mortgagee who deposes that the mortgagor took Rs. 1,200 four or five days before the execution of the deed on which occasion he received only Rs. 5,800 This fits in exactly with the other circumstances which, in our opinion, do not throw any suspicion upon the case for the plaintiff that the whole of Rs. 7,000 mentioned in the deed was actually advanced. On the other hand, the suggestion made on the side of the defence that the mortgagor executed a deed for Rs. 7,000 took Rs. 4,500 only and said that he would take the balance as occasion might require seems to be a very improbable story. We have further the fact that although the mortgagor lived for over four years after the execution of the mortgage, he never demanded the alleged balance of Rs. 2,500 from the mortgagee, certainly, he did not make any attempt to recover the amount by suit or in the alternative, to have the mortgage deed rectified. Upon an examination of the evidence on this part of the case, we are satisfied that the Subordinate Judge was right in his conclusion that the whole of the principal sum of Rs. 7,000 was paid to the mortgagor. The second ground taken on behalf of the appellant must, therefore, be overruled.

4. The third ground taken on behalf of the appellant raises what must be deemed the substantial question in the appeal. It has been argued by the learned Vakil for the appellant that the evidence which bears upon this part of the case has not been properly appreciated by the Subordinate Judge and that the reasons for his decision upon this point are by no means conclusive. The Subordinate Judge makes a general observation that he cannot place any reliance upon the testimony of witnesses examined upon this point and rejects the defence because the payment, if made, would have been endorsed in the bond and would have been mentioned in an account previously prepared of the amount due under the mortgage. In our opinion this part of the case deserves much closer scrutiny.

5. In support of the allegation that Rs. 3,000 was paid by the mortgagor to the mortgagee on the 23rd August 1891, the defendants produced a receipt which has been marked as Exhibit 3. This receipt recites that certain mouzahs named, had been mortgaged by Asootosh Banerjee to Harendro Krishna Mookerjee, and that on account of the principal and interest then due, two currency notes of which the serial numbers are specified and Rs. 1,000 in cash were paid on that date. This is signed on behalf of Harendro Krishna by Nrishinga Deb Chatterjee who was admittedly his chief officer at the time and is counter-signed by Harendro himself. The genuineness of this document is denied by the representatives of the mortgagee. At one stage of the argument it was suggested that the whole of it was a forgery and that no portion was in the handwriting of either Narshing or Harendro. Later on, however, the learned Vakil for the respondents confined himself to the view that the body of the document was in the handwriting of Narshing as also the signature of Harendro by the pen of Narshing, but it was argued that the counter-signature of Harendro was a forgery. There can be no possible question, in our opinion, that the document was drawn up by Narshing and signed by him on behalf of Harendro. This is made manifest by a comparison of the handwriting with the admitted writing of Narishingha on a receipt granted by him on the 11th October 1896 and marked as Exhibit G. The learned vakil, therefore, when he conceded in the end that the document was written by Narshing, merely abondoned an absolutely untenable position. The sole question, which remains for consideration is whether it was counter-signed by Harendro himself. To test the genuineness of the signature of Harendro, important materials on the record are available. On the 25th June 1894 Harendro had filed his written statement in a suit on the original side of this Court. The original of this written statement was produced in the Court below and has been carefully examined by ourselves as well as the learned Vakils on both sides. There is no room for doubt or discussion that what purports to be the signature of Harendro on the receipt, bears a striking resemblance to the admitted signature of Harendro in the written statement. The learned Vakil for the respondent contends that this resemblance is not a safe guide and that although from the dissimilarity of signatures, a Court may legitimately draw the inference that a particular signature is not genuine because it varies from an admittedly genuine signature, yet resemblance of two signatures affords no safe foundation that one of them is genuine. Now it may be conceded that if two signatures are exactly identified, there is room for suspicion that the one in question may be a copy or careful imitation of the genuine signature. It is a fact well-known and may be readily verified that no two signatures, actually written in the ordinary course of writing them, are precisely alike. The character of a person's signature is generally of uniform appearance, and the resemblance between one and another signature of the same person is thus apparent but the coincidence is seldom known where a genuine signature of a person superposed over another genuine signature of the same person is such a fac-simile that one is a perfect match to the other in every respect. There is generally diversity in the marks of the pen, the size of the letter, the level of the signature and the space it occupies that stands as a guard over the genuine signature and characterises it as the true signature. But as was observed by Lord Justice Coleridge in Doe v. Sukermore 5 A. and E. 703 at p. 705 'the test of genuineness ought to be the resemblance not to the formation of letters in some other specimen or specimens but to the general character of writing which is impressed on it as the involuntary and unconscious result of constitution! habit, or other permanent cause, and is, therefore, itself permanent.' Again as Sir J. Nicholl said in Robson v. Roche 2 Adr. 53 ' the best usually perhaps, the only proper evidence of handwriting is that of persons who have acquired a previous knowledge of the party's handwriting from seeing him write and who form their opinion from the general character and manner of these, and not from criticising the particular letters.' If now we look to the prevailing character of the two signatures, the impression left upon our minds is that they are signatures of the same person. Although, however, the general correspondence of the signatures before us is such that there is no room for reasonable doubt that they were made by the same person yet, as it is easy to forge the hand-writing of almost any man so that it may be impossible for the best Judge to discriminate between the false and the true, we do not desire to base our conclusion upon the similarity of the signatures alone. There is, in our opinion, a mass of direct and circumstantial evidence which points to the genuineness of the signature on the receipt and establishes beyond reasonable doubt the truth of the payment alleged by the defendants. Preo Nath Mukerjee deposes that he saw the payment made by Asootosh and the receipt signed by Harendro. He narrates how after the receipt had been drawn up, Asotoosh insisted upon. Harendro's counter-signing for the reason that the sum was large and was an unusual payment outside the ordinary receipts from the mortgaged properties which as we have already stated were agreed to be applied in satisfaction of the mortgage debt. Harendro thereupon put his signature. No reason has been assigned why the witness Preo Nath should not be believed. Raj Kristo Chakravarty who is perhaps not equally respectable but is a man of some position also deposes to the payment. These two witnesses are corroborated by Kristodhone Ganguly who describes how the receipt was written out by Narshing and counter-signed by Harendro. Some comments were made upon minor discrepancies in the depositions of the different witnesses as to the room in which the receipt was written. But, in our opinion, they simply strengthen the view that these are witneses of truth, it would have been a matter for surprise if they could depose with absolute uniformity as to the details of an incident which had happened 16 years before. This is the direct evidence of payment and the execution of the receipt. The genuineness of the signature on the receipt, however, is also proved by the brother of the mortgagee, Parbati Charan Mukerjeo, who was by no means very favourably disposed towards the defendants. He admitted the similarity between the signatures of Harendro on the receipt and the written statement, although he professed that he could not say for certain whether the receipt was genuine. The story for the defence, however, is materially strengthened by a statement contained in a previous deposition of Parbati' Charan. He was examined as a witness in the original side of this Court in a suit. In his examination dated the 14th August 1905, he first stated that Narshing was an officer of his brother Harendro and when asked whether he knew if Narshing in the life-time of his brother had received payments in respect of the mortgage and signed receipts for the moneys paid, he answered yes once or twice I have seen that, but these receipts were afterwards counter-signed by my brother' and this payment of Its. 3,000 is the only direct payment alleged by any body. This statement was made shortly before the institution of this suit and it is not suggested that at that time Parbati was inclined to be friendly to the present defendants. The direct evidence, therefore, taken along with the evidence of Parbati the brother of the mortgagee points to the conclusion that the receipt is genuine. There are, however, other circumstances which support the same position. It was faintly suggested on behalf of the plaintiffs-respondents that about the time of the alleged payment Asootosh had not sufficient money in his hands to enable him to make the payment. This suggestion has been completely negatived. The defendants have produced receipts of registered covers for warded, by Asootosh who at the time resided in Chapra to his officer Kristodhone at his native place Janai. These are spread over the period from the 4th of April 1891 to the 7th of November 1891, and they indicate that Asootosh forwarded to his officer during this interval a sum of Rs. 8,650 of which Rs. 4,650 is covered by remittances from 3rd June to 6th June. The evidence farther discloses that Asootosh at the time sold some of his Chapra properties and realised considerable sums with a view to pay his creditors who were pressing for payment. It further transpires that in the Court below the defendants applied for permission to examine Raghu Nandan Persad the purchaser of the Chapra properties, and also sought to produce the conveyances executed in his favour on the 21st March and 12th May 1891 but the learned Subordinate Judge did not allow them sufficient opportunity to do so. A suggestion was made that all these transactions were fictitious and that as the amounts alleged to have been remitted by Asootosh from Chapra to Kristodhone at Janai were not entered in the account books kept by Asootosh in either of the places, no reliance ought to be placed upon the allegations. It is satisfactorily explained, however, why entries of these sums could not be found in any of the account books. The sums realised by the sale of Chapra properties could not be treated as ordinary income, and if the properties were sold to satisfy the debts due to creditors, one would hardly expect to find entries of these sums in the current account books. But even if the account books were produced and it was established that the entries were not to be found there, the question is at least doubtful whether this would be any evidence against the defendants. The cases of Queen v. Grees Chunder Banerjee 10 C. 1024 and In the matter of Juganlal 7 C.L.R. 356 seem to indicate that though the entries in books of account are relevant to the extent provided by Section 39 of the Evidence Act, such a book is not by itself relevant to raise an inference from the absence of any entry. The same view is apparently supported by the observation of Lord Davey in Ram Pershad Singh v. Lokhpati Koer 30 C. 231 at p. 247. The contrary view, however, was taken in Sagurmull v. Munraj 4 C.W.N.(short notes) ccvi, in which it appears to have been held that the cases just mentioned did not rule that the fact of absence of an entry is no evidence at all under any section of the Act, and that evidence that there is no entry in the account books, though not admissible under Section 34 may be admissible under Sections 9 and 11. Apart from this circumstance, however, as we have already explained the mere absence of an entry in the account books does not, in our opinion, throw any doubt upon the obligation of the defendants that Asootosh had at the time considerable sums available for payment to his creditors. We may take it, therefore, as fairly established that shortly before the alleged payment was made, Asootosh had collected a considerable sum of money with a view to pay his creditors. We also find from a post card written by Asootosh to Kristodhone on the 20th June 1891 that there was apparently at the time some negotiation to pay money to Harendro. The genuineness of this post card is not called in question. It indicates that Asootosh instructed his officer not to make any payment to Harendro till the latter returned a hat-chitta or an account book which had apparently been created by Asootosh and kept with Harendro with a view to show his creditors that he was very much involved. It was suggested in passing, by the learned Vakil for the respondent that the sum of Rs. 3,000 alleged to have been paid might have been a payment towards this hat-chitta. This argument, however, is entirely inadmissible, first, because the evidence shows clearly that the transaction mentioned in the hat-chitta was fictitious, and secondly, the receipt shows on the face of it, that the payment, if made, was one towards the satisfaction of the mortgage debt. We take it, therefore, that Asootosh had in his hand at the time considerable sums of money and that he intended to apply it in part at any rate for the discharge of the mortgage debt. We further find that the receipt mentioned the serial numbers of two notes, and the result of enquiry at the Currency Office shows that the notes were not withdrawn from circulation and cancelled till the 5th October 1891 and the 17th of March 1892. Is it likely that if the receipt was forged, the numbers of two notes should have been inserted, with the obvious risk that the notes were such as had already been withdrawn from circulation. The learned Vakil for the respondents did not hesitate to suggest that the defendant might have collected informations from the Currency Office as to what notes had been cancelled at what time and thus inserted the numbers of notes which were in circulation on the 23rd August 1891. There is no foundation, however, for such a suggestion, and the conduct attributed to the defendants seems to us to be rather improbable. It may further be observed that no receipt stamp was put on the receipt. Under the law as it stood at the time, this would have invalidated the document. If the receipt was forged, it is unlikely that an obvious defect like this should have been allowed. Further if the receipt was forged, it may well be asked why was it not made for a larger sum so as to wipe oat the debt completely. Upon a review, then, of the whole evidence in support of the genuineness of the receipt, we must hold that a very strong case has been made out by the defendants, upon the evidence direct as well as circumstantial. How then is this evidence sought to be rebutted. The ground which the plaintiff put in the very fore-front is that at the time when the receipt is alleged to have been executed, Harendro was seriously ill and was not in Janai but in Madhupur where he had gone for a change of climate under medical advice. If this allegation is established the receipt must be ignored, however striking the similarity may be between the signature thereon and the signature on the written statement of Harendro. But the evidence in proof of this assertion turns out to be quite inconclusive when carefully scrutinised. Dr. Abinash Chandra Banerjee gave evidence to the effect that towards the beginning of August 1891. Harendro was seriously ill and had to undergo an operation for cancer in the tongue. The evidence, however, does not show where Harendro was on the 23rd of August 1891? Reliance was then placed upon the account book of the receiver of the estate of Harendro but a minute examination of the entries in the account book of the receiver produced a result very different from what the respondents expected. It appears that on the 4th August 1891, Harendro was in Calcutta and, on that day Dr. Raye was paid a fee of Rs. 500 for an operation on Harendro. Dr. Raye appears to have attended daily on the 6th, 7th and 8th and on alternate days thereafter, that is, on the 10th, 12th, 14th and 16th. The last occasion on which he attended was the 20th August and the entries in the account book of that date show that sums were spent for payment of fees to the Doctor and for more than ordinary quantity of medicine. There is no subsequent entry in the account book relating to the payment of fees to any Medical Practitioner for Harendro or for any medicine purchased for his use. This evidence therefore, indicates that Harendro left Calcutta about the 20th August. The plaintiffs alleged that he went away to Madhupur. But of this there is no proof. Reliance has been placed upon the evidence of Parbati Charan who says that Harendro lived at Madhupur during the months of Ashar,: Sraban, Bhadra and Aswin of 1293, that is, from the middle of June to the middle of October 1891. The witness, however, adds that he was there for three or four months daring the rainy season, but cannot say for certain when it was. That this statement is vague and uncertain is proved conclusively by the account books on which the plaintiffs rely. Harendro was, undoubtedly, in Calcutta in the beginning of August. There is nothing to show, therefore, that Harendro on leaving Calcutta on the 20th August did not go to his native village, Janai. Indeed if he went to Madhupur at about that time it is more than likely that he would go to his native village before going for a change of climate and this would fit in exactly with the case of the appellant. We further find from the evidence that Asootosh came from Chapra on the 18th or 19th August 1891, that is, immediately before Harendro left Calcutta. Asootosh had money with him and was anxious to make a payment. Harendro had just passed through a protracted illness which had cost him considerable sums of money in the shape of medical fees, medicines, appliances, and expenses incidental to residence in Calcutta. Is it under these circumstances unlikely that if Asootosh made a payment at the time, Harendro would be only too pleased to receive it? There is no foundation, therefore* for the suggestion that at the time of the alleged payment, Harendro was too ill to sign the receipt and was away from his native village spending his time at Madhupur. The strongest ground, therefore, which is urged against the genuineness of the receipt, is not substantiated. Three circumstances, however, are relied upon as throwing suspicion upon the genuineness of the receipt namely, first, that the receipt does not appear, to have been previously shown to Harendro or to any person on behalf of the mortgagee; secondly, that it was not mentioned in the account which was prepared of the dues on the mortgage (Ext 3) and, thirdly, that the payment was not entered on the back of the mortgage. So far as the first circumstance is concerned, no doubt some weight must be attached to it. But it is clear upon the evidence that the eldest son of the mortgagee Kamalapati the present appellant had asserted for many years past that the mortgage-debt had been satisfied to a very large extent, if not completely wiped out. On one occasion, he did go to interview Harendro who promised to look into the matter. It is not a matter for great surprise that he did not show the receipt to Harendro. Harendro was his father's friend and by many years senior to him, if as Kamalapati alleges, Harendro did not repudiate the receipt of money and promised to examine the account afterwards, a young man of his position could hardly be expected to press matters further at the stage. He could hardly anticipate the difficulty which has now been created by the death of both mortgagor and mortgagee. We are no longer in a position to have the direct testimony of the person who made the payment nor of the person who is alleged to have received it. Under such circumstances we must rely upon such evidence as is available. As regards the second point upon which the learned Subordinate Judge placed great reliance, it is clearly one which does not tell against the genuineness of the receipt. The account which was prepared was an account of payments which had been made from the collection of the mortgaged properties. No explanation is given under what circumstances, the account was prepared and for what precise purpose, nor is there anything to show that the account was prepared with the knowledge of the sons of the mortgagor. Unless it is proved that the account was made with their knowledge and was intended to cover all payments made in discharge of the debt, the ommission of the particular payment, now in question, would not, in any way, affect the matter. On the other hand, so far as we can gather from the evidence, the account was not prepared by one officer, but by two, if not three persons, namely, Harish, Mritunjoy and Narshing. Two of these certainly are not shown to have known anything about the receipt. The account seems to have related only to sums which had been paid out of the income of the mortgaged properties. If so, the ommission of the sum of Rs. 3,000 does not throw any doubt upon the genuineness of the receipt. As regards the third point, no doubt, the mortgage-deed contains the ordinary stereotyped clause to be found in such a document that all payments are to be endorsed on the back of the deed and that no payment not so entered is to be recognised. It is a matter of common knowledge, however, that inspite of such clauses, payments are made and separate receipts taken. No question appears to have been put upon this subject to the witnesses for the defence who deposed to the execution of the receipt, and it is not inconceivable that as the mortgagor and mortgagee were on very friendly terms, and as Harendro had just returned home after a protracted illness, Asootosh might not have insisted upon the production of the mortgage-deed to secure the entry of the payment on the back thereof. It is well settled, of course, that inspite of such a covenant in the mortgage deed, the mortgagor is entitled to credit for payment actually made and otherwise proved. This view has been taken by all the Indian High Courts as is shown by the decision in Girdhari Singh v. Lalloo Koonwur 3 W.R. (Mis) 23 and Kallee Doss Mittra v. Tara Chand Roy 8 W.R. 316; Sashachellum Chetty v. Tundir Patil Govindappa 5 Mad. H.C.R. 451; Nagurmull v. Azemoollah 1 All. H.C.R. 228 and Narayan v. Motilal Ramdas 1 B. 45. It may, further, be observed that the theory now advanced on behalf of the plaintiffs that the receipt was actually written out by Narshing and that the signature of Harendro was a forgery is beset with another difficulty. If this theory is true, Narshing himself must have played false to his master, because if the receipt was drawn out by him although no payment had actually been made, he must have been a party directly or indirectly to forgery. No such suggestion appears to have been made before the Court below. Narshing as appears from the evidence died about 1899. No evidence has been adduced to show that at any time between 1891 when the receipt is alleged to have been signed and 1895 when Harendro died or between that date and 1699 when Narshing himself died, that he was not the trusted servant of the plaintiffs. We, therefore, cannot accept the theory which is by no means free from difficulty and which appears to have been advanced for the first time in this Court. While on this part of the case we cannot forbear reference to the circumstance that the plaintiffs have not acted quite fairly to the defendants in this suit. In the plaint they allowed credit for a small sum of Rs. 862. But they ignored completely the payments which had been made first to the mortgagee then to the executor of the mortgagee and lastly to the mother of the plaintiffs, from the collection of the mortgaged properties. These payments extend over a period of 16 years from 1294 to 1309. The omission to give credit for these large sums might or might not have been intentional. If it was unintentional it shows gross carelessness and we cannot, therefore, attach any weight to the circumstance that the plaintiffs are not likely to have ignored the payment of Rs. 3,000 if such payment was actually made. We have anxiously considered this matter since the arguments were concluded. We have minutely examined the evidence and considered the circumstances from every possible point of view and the conclusion appears to us to be irresistible that the receipt is genuine and that the payment of Rs. 3,000 was actually made as alleged. The third ground taken on behalf of the appellant must consequently prevail.

6. The fourth ground taken on behalf of the appellant raised the question of the propriety of adding a sum of Rs. 100 to the mortgage-debt. This sum appears to have been taken by Kamalapati, on the 11th October 1896 and it has been contended that as it was not made a charge upon the mortgage properties, and as a suit if now brought to recover the sum would be successfully met by the plea of limitation the plaintiffs ought not to be allowed indirectly to receive the benefit which they could not directly receive. It is explained, however, on behalf of the plaintiffs-respondents that the circumstance of this particular transaction was that the amount which was paid to the mortgagee from the collection of the mortgaged properties was reduced by the sum of Rs. 100. This in fact is obvious from the receipt itself which recites that Rs. 100 has been received from the income of the mortgaged properties and delivered to Kamalapati. The proper order to make, therefore, is not to add the sum of Rs. 100 to the mortgage decree as the Subordinate Judge has done, but to reduce the amount alleged to have been paid in 1303 by Rs: 100 in other words, when the accounts are taken in this Court the amount paid for 1303 will be reduced from Rs. 786 to Rs. 686. There is no substance, therefore, in the fourth ground urged by the appellant.

7. We have now to consider the objections taken to the decree by the plaintiffs-respondents. In the first place, they claim that interest ought to have been allowed upon the instalments of Government revenue and cesses which they had paid and that such interest ought to be calculated from the date of each payment. This contention is obviously well-founded. Interest, therefore, will be allowed on each payment at the rate of 12 per cent, per annum. In the second place, it is urged that interest ought to have been allowed upon the costs of the earlier litigation from the date of the decree therein that is, from the 27th July 1897. An examination of the decree makes it clear that this contention is not well-founded. The decree provides that the costs of that suit to be taxed by the Taxing Officer as between attorney and client were to be realised by the mortgagee. The reasonable interpretation of this clause is that the costs are to be added with effect only from the date on which they are taxed. Interest will, therefore, be allowed on the costs at the rate of 12 per cent, per annum from the 9th February 1907. In the third place, it is contended that interest ought to have been allowed upon Rs. 100 borrowed by Kamalapati on the 11th October 1896. In the view we have already taken of the nature of this loan, it is not necessary to deal with this objection. In fact the order that we have already made will lead to the result that the mortgagee will not be charged with this money by which the receipt from the mortgaged properties was reduced. In the fourth place, it is contended that the interest after the date fixed for redemption in the decree should be allowed not upon the principal sum alone but upon the aggregate amount found due. This view is clearly well-founded. As was pointed out by this Court in the case of Managi Singh v. Saheb Ram Singh 10 C.L.J. 203 : 3 Ind. Cas. 289 decided by Mookerjee and Carnduff, JJ., on the 2nd March 1909, when the decree has been made the mortgage debt passes from the domain of contract into the domain of judgment and the interest to be allowed thereafter should be calculated on the basis of the aggregate amount found due under the decree.

8. The result, therefore, is that this appeal must be allowed in part. The defendants will have credit for the sum of Rs. 3,000 paid in 1298, the plaintiffs on the other hand will be debited with Rs. 686 instead of Rs. 786 in 1303. The defendants will be liable to pay interest on the Government revenue and cesses, instalment by instalment, as also upon the costs of the earlier litigation from the date when they were taxed; and an account will be taken in this Court under Order 34 Rule 2, C. P. C. of 1908 and interest at the contract rate will be calculated up to the 24th February 1910 which will be the date fixed for redemption in the decree to be drawn up in this Court. Interest, thereafter, will run at the rate of six per cent, per annum upon the aggregate amount. The plaintiffs as well as the defendants will pay and receive costs throughout this litigation in proportion to their success as determined by the judgments of this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //