Gobind Gorhi and Others vs Baldeo Ram and Others

James, J.—On 8th August 1912 Hazari Mandal borrowed three hundred rupees from a money lender named Baldeo Ram on a mortgage of the whole of one of his occupancy holdings and of part of another. On 20th January 1914 Hazari mortgaged to Pheku Mandal fora loan of Rs. 400 the holding of which he had mortgaged part to Baldeo Ram in 1912. On 14th March 1917 Hazari Mandal borrowed Rs. 1,200 from Baldeo Ram, executing another mortgage bond hypothecating the land which he had already given as security in 1912, including on this occasion the whole of the-second holding.

In 1925 Pheku Mandal sued Hazari Mandal on the bond of 1914 making Baldeo Ram a party as subsequent mortgagee, with reference apparently to this mortgage of 14th March; 1917; but after a written statement had been filed which purported to be that of Baldeo Ram, claiming the rights of a prior mortgagee under the bond of 1912, Pheku Mandal obtained permission to expunge the name of Baldeo Ram from the defendants of his suit. The money lender Baldeo Ram was managing member of a Mitakshara joint trading family, which remained joint till 1922. The cosharers then separated'' from Baldeo Ram, but their property continued to be held in common till 1927, when there was a formal partition.

In 1926 Baldeo Ram''s cosharers instituted the suit with which we are here concerned, on the mortgage bond of 8th August 1912, making defendants the sons of Hazari Mandal, Pheku Mandal, who had obtained a decree on 4th May 1926 on his mortgage deed of 1914, and also Baldeo Ram who had refused to join his cosharers as a plaintiff in the suit. By 8th May 1926 when the suit was instituted, the original debt of Rs. 300 had by the accumlation of compound interest swelled to the sum of Rs. 11,200; but the plaintiffs abandoned part of their claim and were content to sue only for Rs. 5,995 with interest up to the date of the decree.

Every defendant, except the sons of Hazari Mandal filed a written statement taking the objection that the debt of 8th August 1912 had been paid by Hazari Mandal. The plaintiffs had stated that Hazari Mandal was dead, but this statement was incorrect and all the defendants who filed written statements took the objection that he was a necessary party to the suit. The sons of Hazari Mandal did not, as I have said, file a written statement; but they ultimately contested the suit with the other defendants, apparently leaving the conducting of the case to the pleaders who had been engaged by Pheku Mandal, Hazari Mandal and his son Gobind, who were supported in evidence by Baldeo Ram himself, asserted that the debt had been paid.

The learned Subordinate Judge did not accept this evidence; and he found that the debt was sbill outstanding. It appeared from the evidence of Hazari Mandal and his son that Hazari Mandal had been the managing member of the family when he executed the mortgage bond, but that during the last few years, owing to his blindness he had given up that position and that his son Gobind had taken his place as managing member. The learned Subordinate Judge accordingly held that the family was sufficiently represented in the suit by Gobind Mandal, The suit was ultimately decreed in full for the sum of Rs. 7,653-10-9. It is to be observed that this decree, to the extent of his interest of-one third, is hi favour of Baldeo Ram, who thus becomes entitled to realise Rs. 2,551 from Hazari Mandal''s family property for a debt which he himself says has been satisfied.

The two sons of Hazari Mandal and the mortgagee Pheku Mandal have appealed from this decision. Mr. Haresh war Prasad Sinha on behalf of the appellants attacks in the first place the learned Subordinate Judge''s finding of fact on the question of payment. He further argues that Hazari Mandal was a necessary party to the suit, which could not proceed in his absence; and that a decree could not be pronounced against a joint family without finding that the debt was incurred for "valid family necessity, because the sons would not otherwise be liable for their father''s debt during his lifetime.

In dealing with the principal issue of fact, if the learned Subordinate Judge had based his decision regarding the icredibility of the witnesses on his personal observation of them as they gave evidence, we should be obliged to attach to his finding the weight which is ordinarily credited to the findings of fact of the Court before whom the witnesses have given evidence. But the learned Subordinate Judge has not done this. He has merely given argumentative reasons for the view which he has taken of the effect of the evidence; and if on [consideration of those reasons they: should be found to be inadequate, the ground for his decision on the question of fact manifestly fails. It is, therefore necessary to examine the evidence on this matter of payment.

Hazari Mandal the mortgagor said that he had paid up the amount due on the bond; that he paid it two or two and a half years ago at Baldeo Ram''s shop, giving land in satisfaction of his debt. Gobind Mandal the son of Hazari, who was a boy when the mortgage was made, says that the money was paid eight or ten years back, and that his father gave some money and some land in satisfaction of his debt. He says that after the debt was satisfied the mortgage deed was returned, but that: it was burnt when their house was destroyed by fire. The learned Subordinate Judge remarks that the failure of the defendants to produce this deed places each party on an equal footing. According to the plaintiffs the deed was with Baldeo Ram who refused to produce it out of spite. But if Baldeo Ram had the deed, and was prepared to lose his own share of the profit to be derived from its possession, he would obviously have passed it to Hazari Mandal, to effect more completely his spiteful purpose. The deed was obviously worthless to him after he had said in his written statement that the debt had been satisfied. I consider therefore that the plaintiff''s explanation of their failure to produce it must be regarded as inadequate, and that the explanation given by Gobind Mandal is manifestly true. Mr. Nirsu Narain Sinha on behalf of the respondents takes the objection that the evidence of these witnesses to the effect that the debt had been paid ought not to be admitted, and they ought not to be allowed to make any defence which would traverse the statements in the plaint, because they filed no written statement in the case. He relies for his contention upon the provisions of Order 8, Rule 5, Civil P.C., that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.

He argues that if it be held that the failure to file a written statement is not to be taken as an admission of every allegation of fact in the plaint, a defendant who has not filed a written statement might find himself at the trial of the case in a more favourable position then a defendant who had followed the ordinary procedure. But the purpose of the rule is clearly that a defendant when he does intake a written defence shall be compelled to make his defence specific. The rule does not apply to a case where the defendant has not put in a written statement, as was pointed out by Sir Lancelot Sanderson in Ross v. Scriven [1916] 43 Cal. 1001. It, therefore, cannot be held that these defendants are debarred from giving evidence which traverses the allegations made in the plaint, and their evidence must be considered on its merits. There is some discrepancy in the accounts which are given by Hazari Mandal and his son of the time at which payment was made; but Haza-zari Mandal is old and blind and apparently failing in memory, while his son Gobind was too young at the time to have any definite personal knowledge of the transaction. The confusion appears to be explained by the evidence of Baldeo Ram himself, who says that Hazari Mandal paid up the debt of Rs. 300 on the original mortgage bond, and that after that he executed another bond for Rs. 1,200, the mortgage bond of 14th March 1917 which Baldeo Ram produced (Ex. A). Baldeo Ram explains that it was in respect of another bond that Hazari Mandal gave him the land and not settlement of this debt.

The learned Subordinate Judge does not accept this evidence. He considers that Baldeo Ram''s evidence is discredited by the written statement which was filed in 1925 in Pheku Mandal''s suit. Apart from the question of whether that written statement can be properly used to contradict Baldeo Ram, it is clear that where the Court has to choose between two conflicting statements of this witness, by one of which he stood to gain a sum which is placed in the written statement at Rs. 20,000, while by the other he stood to lose Rs. 2,550, the statement against interest should ordinarily be preferred. But it is argued with some reason that the evidence of Baldeo Ram actually stands unrebutted. There is no proof that Baldeo Ram himself had any part in the filing of the written statement in Pheku Mandal''s suit; and it was not put to the witness when he was under examination. The written statement is on the face of it false, since it sets out a higher rate of interest; than that of the bond of 1912. If Baldeo Ram was really responsible for it, and if he had the deed in his possession, he would not have set out is his written statement claims which would be discredited immediately, when the deed was produced. And if Baldeo Ram was responsible for this dishonest claim to treat it as substantive evidence of the truth of its contents, when they are manifestly untrue, and as thus rebutting a subsequent statement against interest, as the learned Subordinate Judge has done, is not merely to disregard technical rules of evidence. It is contrary to technical rule of evidence: it is also repugnant to common sense.

It is clear that the written, statement cannot be used as substantive evidence of the truth of what is stated in it since it is manifestly not true; and it cannot be used to contradict Baldeo Ram because his attention was not called to it when he was under examination, which was necessary by the provisions of Section 145, Evidence Act, if it was to be used to contradict him. Also, as I have said, it has not been proved that Baldeo Ram himself took any part in the preparation or filing of this written statement. Mr. Nirsu Narain Sinha suggests that since this written statement was admitted without objection it should be assumed that the defendants admitted that it was the written statement of Baldeo Ram. It is not clear how objection could have been taken to the admission of the written statement. It was duly proved that it had been filed in Pheku Mandal''s suit; and it was also proved that after the filing of this written statement Pheku Mandal took certain action which Mr. Nirsu Narain Sinha argues must debar him from contesting the plaintiffs'' claim in the present suit. It certainly cannot be held that the failure to take objection to the admission of this document warrants the use of it as substantive evidence of the truth of its contents, or its use against the provisions of Section 145, Evidence Act, to contradict Baldeo Ram. I consider, therefore, that it must be held that Baldeo Ram''s evidence has not been rebutted. The evidence was manifestly against the interest of Baldeo Ram, since by it he sacrificed his claim to Rs. 2,550 and it ought to be accepted as true, I would, therefore, set aside the finding of fact of the learned Subordinate Judge and find that the defendants'' plea of payment has been proved.

After the written statement which purported to be that of Baldeo Ram had been filed in Pheku Maadal''s suit, Pheku Mandal prayed that Bildeo Ram might be removed from the category of defendants as it did not appear that he was a necessary party. Mr. Nirsu Narain Sinha suggests that this application amounted to an admission that the written statement was true and that the mortgage debt of 1912 was still outstanding. I do not consider that the application can be treated as involving any such admission. Baldeo Ram was joined as a party to Pheku Mandal''s suit because he was a subsequent mortgagee. Pheku Mandal had evidently heard of the mortgage of 1917; but when Baldeo Ram filed his written statement alleging that he had taken a mortgage in 1912, it was apparent that whatever he might be he was not a subsequent mortgagee, and that, therefore, he would not be a necessary party under Order 34, Rule 1, Civil P.C. It certainly cannot be properly held that by applying that Baldeo''s name might be removed from the defendents of his suit Pheku Mandal was admitting the truth of everything contained in the written statement.

Mr. Hareshwar Prasad Sinha further argues that the omission to implead Hazari Mandal who was the actual mortgagor should be regarded as fatal to the suit. It was clear from the evidence which Hajari Mandal and his son gave that Hazari was managing member of the family at the time when the load was taken; but that the present managing member is Gobind. If the plaint had described Gobind as managing member of the joint family the suit would have been properly framed; and if the only question is whether, where the managing member who represents the family is a party to the suit, it should be held to fail by the application of the provisions of Order 34, Rule 1, Civil P.C., merely because the managing member has not been so described in the plaint. We are not prepared to say that the mere omission to describe the karta of a family as such in the plaint debars the plaintiff from claiming that the managing member represents the family for the purposes of the suit; but it is unnecessary to decide this point, since the plaintiffs claim must fail on other grounds.

I would accordingly set aside the decision of the Subordinate Judge and allow this appeal; dismissing the plaintiff''s suit with costs throughout.

Courtney Terrell, C. J.

I agree