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Ramchandra Sau Vs. Kailashchandra Patra - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal667
AppellantRamchandra Sau
RespondentKailashchandra Patra
Cases ReferredMahomed Musa v. Aghore Kumar Ganguli A.I.R.
Excerpt:
- .....the present case. in mallappa's case [1919] 42 mad. 41, there is the proposition laid down by the learned judges, that an agreement like the one that we have to deal with in the present case cannot be said to be inadmissible in evidence, if such agreement has been admitted in the pleadings and no question of proof by oral or documentary evidence arises, as proof of the same, say the learned judges of the madras high court, is dispensed with, in consequence of the admission under section 58, evidence act. it may further be pointed out that, at the very opening, the learned advocate for the appellant placed some reliance upon the decision of the judicial committee of the privy council in the case of durga prasad singh v. rajendra narayan bagchi [1913] 41 cal. 493, where their lordships of.....
Judgment:

Guha, J.

1. This appeal is directed against a decision and decree passed by the learned District Judge of Midnapur, affirming the decision and decree passed by the Subordinate Judge, 3rd Court of that district, in a suit for enforcement of a mortgage security. The plaintiff's case may be shortly stated: defendants 1 and 2 and the father of defendant 3 had borrowed eight hundred maunds of paddy on the security of properties mentioned in the plaint, that they had agreed to pay sixteen hundred maunds of paddy in 14 instalments, in 14 years from the year 1322 to 1336 B. S., that, in default of payment of four successive instalments, plaintiff instituted a suit for recovery of sixteen hundred maunds of paddy. The defendants in that suit, as instituted by the plaintiff previously, contested the suit, and the suit was decreed for Rs. 1,150 as price of paddy for four instalments. In that suit, claim for ten instalments was found to be premature; that for nonpayment of the amount decreed in that suit, plaintiff executed the decree and put the mortgaged property to sale; that on the date of sale, i.e., on 14th March 1922, a solenama was entered into, after payment of decretal amount, to the effect that for the amount due on the ten subsequent instalments, the defendant would execute a kobala, within one week, of 2 bighas and 15 cottas of land, for a consideration of Rs. 400. It was further stated in the plaint that there was an agreement between the parties that, in default of the stipulations contained in the solenama, the plaintiff would be at liberty to sue for the ten subsequent Instalments. It was averred also, that within one week the defendants had not executed any kobala of the land, and the plaintiff was therefore compelled to bring the present suit for recovery of price of paddy, with compound interest for the ten subsequent instalments.

2. The defendants resisted the plaintiff's suit, and the main contention advanced on behalf of the defendants was this: that Rs. 400 had been paid to the plaintiff as was due in respect of ten instalments after making deductions, as fixed by the solenama, in full satisfaction of the claim, as the plaintiff would not take the kobala of the land mentioned in the solenama, as the land had been previously mortgaged. The defendants based their case, so far as the payment of Rs. 400 was concerned, on a receipt Ex, A in the case for Rs. 400 paid to the plaintiff, on 27th March 1922, and it was said, in the written statement, that the amount was given as the price of the lands mentioned in the solenama, and the receipt is stated to have been written by the appellant himself. On this state of the pleadings, the material issue raised in the suit was issue 3:

Has the bond been satisfied in the manner alleged in the written statement?

3. The Court of first instance, having gone into the materials before it with great care and attention, came to the conclusion that, so far as the solenama was concerned, it was a contract for the satisfaction of a mortgage, in a particular way, namely that of a payment of Rs. 400, in respect of the ten instalments that were due at the time when the solenama was executed between the parties, and as finding of fact arrived at by the trial Court it came to the conclusion that there was not the least doubt that the receipt was genuine, and the plaintiff had accepted the amount of Rs. 400 in satisfaction of his claim. It was further held by the Court of first instance that the endorsement on the back of the solenama was genuine. In this view of the matter, the plaintiff's suit was dismissed by the trial Court. The plaintiff appealed, and the learned District Judge has affirmed the findings arrived at by the trial Court and the decision given by that Court. The learned District Judge has, on a very careful review of the evidence before him given by the parties in the suit, come to the conclusion that he felt that there was no justification for rejecting the receipt, Ex. A, as forged. He has also come to the conclusion that the solenama had been duly entered into, as between the parties, that the appellant had refused to accept the lands mentioned in the solenama, and that the defendants therefore had to raise the amount of Rs. 400, and pay in cash. The learned District Judge concludes his judgment by saying that it must be held that the receipt should be accepted as genuine, and that the mortgage deed must be held to have been satisfied by the payment of Rs. 400 as evidenced by the receipt, Ex. A. As mentioned already, the learned District Judge has affirmed the decision and decree passed by the trial Court.

4. As against the decision and decree passed by the learned District Judge in the Court of appeal below, the present appeal has been taken and great ability and skill have been shown by the learned advocate, appearing for the appellant, for displacing the clear and definite findings of fact arrived at by the Court of appeal below. To our mind, the findings arrived at by the Court below cannot be displaced, and they are conclusive, so far as the questions of fact involved in the case are concerned.

5. It has, in the next place, been urged that the solenama was not an extinguishment of the contract of mortgage. The mortgage security according to the learned advocate for the appellant was not extinguished or discharged by the sole-nama or the receipt for Rs. 400 granted in pursuance of the solenama by the Plaintiff to the defendants. So far as these two documents are concerned, which have been placed before us, by the learned advocate for the appellant, we have no manner of doubt in. expressing the opinion that the solenama, taken along with the receipt, which had been proved on evidence and which had been accepted by the lower Courts to be a genuine document, did extinguish the mortgage security and operated as discharge of the amount due under the mortgage on which the present suit is based.

6. It has, in the next place, been contended and strenuously urged before us that the solenama was not admissible in evidence as it was not a registered document. The learned District Judge in the Court of appeal below has not dealt with this part of the case. Presumably, the matter of admissibility of this document, which has been admitted in the plaint by the plaintiff, was not debated or discussed before the learned District Judge. However as the matter has been argued before us, we think it necessary to deal with the question raised in second appeal. We are in entire agreement with the learned Subordinate Judge in holding that, so far as the solenama was concerned, it is a contract for satisfaction of the mortgage in a particular way. It is not a document which was entered into by the parties for the purpose of varying the terms of the mortgage security: and as a contract for discharge or satisfaction of the mortgage deed, no registration was necessary. Furthermore, as has been pointed out by the trial Court, the plaintiff himself has relied upon it, and he cannot be heard to say that it was a document which was not admissible in evidence at all. One pure question of law argued by the learned advocate for the appellant, as to the effect of nonregistration of this solenama, we may only state this: that, so far as this Court is concerned, it has been held that there is nothing in law to exclude even oral evidence of the discharge or release of a mortgage deed, when the plea is that it was made partly by payment of money or partly by release of the debt, as in the present case. If authority is needed for a proposition like this that authority is to be found in the judgment of B. B. Ghose, J., in the case of Mohim Chandra Dey v. Ramdayal Dutta A.I.R. 1926 Cal. 170.

7. We may also state that, in our opinion, the case cited by the learned advocate for the appellant on this part of the case, namely, the decision of the Madras High Court in the case of Mallappa v. Nagu Chetty [1919] 42 Mad. 41, and the decision of the Bombay High Court, in the case of Jagannath v. Shankar [1919] 44 Bom. 55, do not support the appellant's cage in any way. The cases have been read to us, and so far as we are able to make out, there are observations contained in the judgments of both the Madras and the Bombay High Courts, which go to support the defendants in the present case. In Mallappa's case [1919] 42 Mad. 41, there is the proposition laid down by the learned Judges, that an agreement like the one that we have to deal with in the present case cannot be said to be inadmissible in evidence, if such agreement has been admitted in the pleadings and no question of proof by oral or documentary evidence arises, as proof of the same, say the learned Judges of the Madras High Court, is dispensed with, in consequence of the admission under Section 58, Evidence Act. It may further be pointed out that, at the very opening, the learned advocate for the appellant placed some reliance upon the decision of the Judicial Committee of the Privy Council in the case of Durga Prasad Singh v. Rajendra Narayan Bagchi [1913] 41 Cal. 493, where their Lordships of the Judicial Committee ruled that the terms of a registered instrument, which was the foundation of the claim in that particular case, could not be varied by extraneous evidence. That case has no bearing upon the facts of the present case.

8. Here, the contract has not been varied, as we have mentioned already, by the solenama. It was the discharge of the debt, so far as the mortgage (security is concerned, that was evidenced by the solenama. It may also be mentioned that, if there is an arrangement between the parties by an agreement like the one which is before us in the present case, embodied in the compromise, stipulating that the mortgage deed was to be discharged by payment of Rs. 400, it did not require registration for the purpose of using it in evidence: see the case of Sakinabai v. Shrinibai A.I.R. 1920 P.C. 60. It may also be mentioned in this connexion, that if the compromise was defective in any way for want of registration, the parties had in fact arranged their rights in the terms of the compromise. There was the payment of Rs. 400, according to the terms of the solenama, and the acts of parties had been therefore such as to supply the defect of registration, if there was any defect, so far as the solenama was concerned: see the case of Mahomed Musa v. Aghore Kumar Ganguli A.I.R. 1914 P.C. 27.

9. In this view of the ease, regard being had to the definite and conclusive findings of fact arrived at by the Courts below, we have no hesitation in holding that this appeal must be dismissed, and we direct accordingly. The respondents who have appeared in this appeal will be entitled to their costs.

M.C. Ghose, J.

10. I agree.


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