C. Ahamad Haji vs Mayan and Others

Venkatasubba Rao, J.—This is a suit for redemption of a kanom alleged to have been made in 1856. It is in its turn said to be a renewal of

kanoms of still earlier dates. The plaintiffs claim redemption having obtained a melcharth or second mortgage from a Devaswom said to be the

original owner of the pro-perties in question. Their case is that the Devaswom mortgaged those properties to a certain Naduvakat tarwad to

secure 2,650 fanams and that the annual purapad is 15 paras of paddy. The defendants 1 to 5 and 19 are members of the aforesaid tarwad and

represent the original mortgagee. The 6th defendant who is the appellant is in possession of some items and claims an interest by virtue of some

deeds executed in his favour by certain members of, the same tarwad.

The plaintiffs seek to prove the mortgage by a copy (Ex. A) of the original kychit executed in their favour. Their case is, that the document was

filed in a case and the records in that suit including the original kychit ware destroyed during the Moplah rebellion. The District Munsif came to the

conclusion that the copy produced is a fabrication and on that ground dismissed the suit.

He has, however, held that it has been proved that the Devaswom is the owner of the properties and that they were demised on kanom to the

predecessor in interest of defendants 1 to 5 and 19. In coming to this conclusion he acted upon two exhibits S and W of the years 1881 and 1893.

In those deeds the executants, some members of the tarwad, admitted that the Devaswom was the owner and that the properties were demised to

their family on kanom. The District Munsif was justified, on these admissions, in finding that the plaintiffs Devaswom was at one time the owner of

the property. But he observes that these admissions by themselves cannot avail the plaintiffs, for it is their duty to show that a kanom answering to

the mortgage alleged in the plaint was created, and, secondly, that it was subsisting on the date of the suit. Let us now take the second point first.

u/s 19 of the Limitation Act, an acknowledgment to be effective must be made before the period of limitation has expired. True, but it is necessarily

implied in the admission we have referred to, that the mortgagee acknowledges that the mortgage was then subsisting; in other words, that it was

liable to be redeemed. This is the plain effect of the admissions and we are supported in this view by Dip Singh v. Girand Singh I.L.R.(1903) A.

313 On this point, therefore, we do not agree with the District Munsif, but this does not dispose of the case. It is not sufficient for the plaintiffs to

show that there is a subsisting mortgage. It is their duty to prove further the terms of that mortgage and the case with which they came to Court

having been disbelieved by the District Munsif, we must hold that they have failed to prove the terms.

An appeal was taken to the Subordinate Judge and he has held that Ex. A has been satisfactorily proved. If the question is one of fact, we

should certainly refuse to disturb his finding, for our powers, though this is in form a Civil Mis-cellaneous Appeal, are substantially those of a

Second Appellate Court. In reversing the Munsif''s finding, the Subordinate Judge has given effect to a wrong presumption. What he says in effect

is this: If you find that the plaintiffs have a title, if it further appears that there was a mortgage in favour of the defendants, it is for the latter to

disprove the terms of the contract as spoken to by the plaintiffs. In other words, the plaintiffs have only to allege that the original instrument is lost

and if the Court comes to the conclusion that there was a mortgage, the plaintiffs are relieved from the duty of affirmatively making out the terms of

the contract, because it is said, the Court may presume that any contract which they set up is true. This is, in our opinion, quite a wrong

presumption and the judgment of the Lower Court, vitiated by this error, cannot be supported.

Applying this presumption, the Subordinate Judge first records a finding in these words:

It appears to me that there is not sufficient evidence to hold that Ex. A is not a true copy of a kychit that was executed in favour of the Devaswom.

A little lower down he states his conclusion in words very positive and remarks:

My finding on issue 2 is that the kychit sued on is genuine and that the properties are held under it.

The learned District Judge overlooks the apparent contradiction between these two passages.

We have had to reject his finding for this reason and the question is, what is the course we are now to adopt. u/s 103, Civil Procedure Code,

we have ourselves examined the evidence and come to the conclusion that the Munsif has recorded a correct finding. The plaintiffs have made no

attempt to prove the case with which they came to Court, namely, that the purapad was being paid till 1924. This, in our opinion, confirms the view

of the Munsif and in the result we allow the appeal, set aside the order of remand and confirm the decree of the District Munsif.

This case having been posted to be spoken to

The Court made the following

ORDER

The 6th defendant alone has filed this appeal. But under Order 41, Rule 4, Civil Procedure Code, defendants 12 to 17 (respondents 4 to 9)

are entitled to teh benefit of our judgment. The decree of the District Munsif in favour of the 6th defendant and defentants 12 to 17 is restored. The

result is, the appeal is allowed with costs of the appellant in this and the Lower Appellate Court.