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Judgment
Srinivasachari, J.—This is an appeal against the judgment decree of the Subordinate Judge Gudida in O. S. No. 1 of 1951. One Sri Raja (sic)mmadevara Nagama Naidu executed a (sic)aple mortgage bond on 18th of April, 1933 favour of one Sri Raja Venkata Ratnamma Rs. 8,500/- in respect of sums due to the (sic)d Raja Venkata Ratnamma under a provisory note. The mortgagor hypothecated (sic)ee village viz. Bollapadu, Appikatla and (sic)tpore.
Subsequently on 27th February 1935 the mortgage executed a mortgage in favour of Nagapotrao mortgaging the right that she processed under the mortgage bond of 18th april, 1933. In addition to the above the 1 Venkata Ratnamma executed an assignment in favour of the same Nagapotrao authoring him to collect the money due under the mortgage bond in her favour.
The three villages which were subject to mortgage were brought to sale in execution of (sic)imple money decree against Raja Bommaara Naganna Naidu the original mortgagor they were purchased all the Court auction act to the mortgage by three persons. (sic)apadu was purchased by one Nagayya, (sic)ikatla by one Jaldu Venkata Subba Rao Velpore by one Nageswar Swamy for the Jaldu Venkata Subba Rao the said Nageswar Swamy being Venkat Subba Rao''s clerk. Nagapotharao the assignee of the montage''s re-assigned his rights in favour of the (snt plaintiff by means of a document the 6th, April, 1945, being Ex. A-3 in the for a consideration of Rs. 32,000/-. plaintiff has now brought this suit on the basis he assignment in his favour for the retry of the amount due under the mortgage her with interest accrued due thereon. plaintiff has prayed for a decree for a of Rs. 16,131-8-0.
(b) To this suit the following persons made parties. The original mortgagor As defendant No. 1. As the original mortgagee Lanka Venkata Ratnamma was dead his legal representative was made defendant No. 2. Plaintiff''s assignor Tatavarti Nagapotha Rao was made defendant No. 3. It may be mentioned that by this time Jaldu Venkata Subba Rao the purchaser of the two villages Velpore and Appikatla was dead and as he had executed a will before his death appointing certain persons as executors the executors under the will were made defendants 4 and 5.
The clerk of Jaldu Venkata Subba Rao in whose name the village of the Velpore was purchased benami was grade defendant No. 6. Defendant No. 7 is the purchaser of the village Bollapadu Defendant 8 is the widow of Jaldu Venkata Subba Rao and defendants 9 to 11 are his daughters. Defendant 12 is the adopted son of defendant No. 8.
(c) During the pendency of the suit defendant No. 3 died and therefore his legal representatives have been brought on record and impleaded as defendants 13 to 15.
The plaintiffs suit is a simple suit on the basis of the mortgage assigned in his favour. Plaintiff however did not produce the original mortgage bond but stated that it was represented to him by his assignor that the original document was missing from the records. The suit therefore was laid as on a lost mortgage bond. The contending parties filed written statements.
The plaintiff''s assignor viz. defendant No. 3, filed a written statement admitting the assignment by him in favour of the plaintiff and stating that the plaintiff was entitled to the amount due under the mortgage bond. He made a statement to say that no amount had been paid under the mortgage. The executors of the will of Jaldu Venkata Subba Rao who represented the estate being defendants 4 & 5 filed a written statement putting the plaintiff to proof of the mortgage.
They stated that they did not admit that any mortgage debt was subsisting which was payable by the estate of Venkata Subba Rao. They further averred that defendant 3 and themselves were appointed executors under the will of Venkata Subba Rao and as such, they in conjunction with defendant No. 3 discharged most of his liabilities.
It was also stated that dining the period that they and the 3rd defendant were managing the estate no demand was made by the 3rd defendant for the amount said to be due under the mortgage. It may be mentioned that after the defendant No. 8 the widow of Venkata Subba Rao adopted defendant No. 12 defendants 4 and 5 ceased to have any interest in the estate as defendant No. 12 became entitled to the properties. They were therefore, discharged.
The statement of defendant No. 6 the clerk of Venkata Subba Rao was only formal to say that the village of Velpore was purchased only benami in his name for Venkata Subba Rao. Defendant 8, the widow of It was also stated in the petition that there was no endorsement of any payment on the document and that alone was sufficient to hold hat there was no discharge of the mortgage debt. This petition was strongly opposed By he other side. Finally after hearing the arguments of both sides we allowed the document to be filed subject to payment of costs to the other side. After this the appellant herein made an application to the Court that view of the reception of this additional evidence it was necessary to send for the will of the late Jaldu Venkata Subba Rao, for that would show that at the time of the said will the debt alleged to be due to the 3rd respondent was not subsisting.
He therefore, prayed that a registered (sic)py of the will executed by Jaldu Venkata (sic)bba Rao might be allowed to be produced (sic)id filed in Court. It was stated that the production of the will in the trial Court was it possible because the- original will had been (sic)ed in another suit instituted by the widow Venkata Subba Rao questioning the vali(sic) ty of the will. Having regard to the fact at there was enough evidence on the record prove the fact of execution of a will by(sic)duVenkata Subba Rao and as the genuineness of the will had been admitted by the 3rd fendant in the suit tiled by Venkata Subba (sic)o''s widow and as it was urged that by the (sic)teption of that document the Court would in a position to determine about the existed or otherwise of the mortgage liability we night that in the interests of justice the Dement should be received in evidence.
So it was directed to be filed. Subtest to this the respondents made an application requesting the Court to call upon the appellant to produce the account books of to Venkata Subba Rao. No orders were (sic)sed on this application. After all this stage rather opportunity was taken to see if the after could be amicably settled but as the (sic)mpt proved abortive, arguments were heard the case was reserved for judgment.
The singular feature about this case is the suit has been filed on the basis of a mortgage the original document not having a filed with the plaint. The contesting aidant did not admit the execution of the (sic)ment and under those circumstances it necessary for the plaintiff to prove the ex-en of the document and for this purpose nary evidence by the production of the ori-1 deed itself and proof of execution by the sanation of the attesting witnesses was (sic)ssary.
Plaintiff sought to lead secondary evil by alleging that the document has been lid and lost. The case with regard to document in the plaint was that it was mis defendant No. 3 who filed a written (sic)ment and in whose possession the document should have been stated that he rested that he had sent the original to the defendant for calculation of the amount P. W. 1 the clerk of defendant 3 has given an indefinite and vague statement with regard to the original mortgage deed.
Every deed being the best evidence of its contents its non-production will necessarily raise a suspicion in the mind of the Court and great care and circumspection would be needed in order to decide whether there has been really a bona fide Joss. Section 65 of the Evidence Act permits the leading of a secondary evidence only where the original has been destroyed or lost.
There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him. In this case a mere statement was made that it was sent to defendant 5 for the making up of accounts. Defendant 5 has come into the box and denied this allegation. Beyond a statement no evidence has been led to prove when the document was sent how long it was with him and why the document was not taken back after the work was over.
If it was sent to defendant 5 then the story of its having been mislaid or lost is certainly false. No doubt permitting a party to lead secondary evidence being satisfied about the loss the original is a matter of discretion left to the trial Court and the appellate Court would not ordinarily interfere with the exercise of such discretion. That is the principle that has been laid down by the Privy Council in Srimati Rani Haripria v. Rukmani Debi, 19 Ind App 79 (PC) (A).
But where the trial Court has come to the conclusion that the loss of the document has been established without taking into consideration the pre requisite conditions that are required by the Evidence Act the appellate Court would certainly interfere with the discretion wrongly exercised by the lower Court. The lower Court in our opinion could no have inferred loss of the document in the face of divergent versions about the non-avail ability of the document placed before the Court.
The learned Judge of the lower Court has held in the alternative that even if the loss of the original could not be said to have been established still secondary evidence could be allowed to be led because according to him the 8th defendant admitted the existence of the mortgage bond when she stated in her written statement that her husband purchased the properties subject to the mortgage. He relied upon Section 65 (b) of the Evidence Act which reads as under:
Secondary evidence may be given of the existence condition or contents of a document in the following cases.
(a)....
(b) when the existence condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
Admission of the execution and the terms of a document render proof of the document unnecessary. S. 58 of the Evidence Act is clear on this point which says that facts admitted need not be proved. The question is whether the statement of defendant 8 in her written statement to say that her husband purchased the two villages subject to a mortgage would amount in law to an admission of the existence of a subsisting debt under the mortgage.
The 8th defendant had no knowledge of the execution of the document and has put the plaintiff to proof thereof. A denial of the execution of a bond though accompanied by a statement of discharge of the debt cannot be regarded as an admission within the meaning of S. 65 (b) of the Evidence Act to dispense with the production of the document. The plaintiff cannot be allowed to disconnect the so-called admission from the context in which it appears and use it as an unqualified admission of the mortgage.
Pleading ignorance of the execution of the document for all intents and purposes amounts to a denial of the execution of the document. We should say that a plea of ignorance of the execution of a document accompanied by even an alternative plea of payment cannot amount to an admission of the execution of the document. Here also in our opinion the lower Court has fallen into an error in relying upon the statement in the written statement of defendant 8 as amounting to an admission of the execution of the mortgage.
Sec. 65 of the Evidence Act cannot be invoked where a party being in possession of the document does not produce it as in this case where the document not having been produced at all the relevant periods has been sought to be ushered in at the stage of the arguments in this court, producing it from his own possession. It would be useful in this regard to refer to the observations of the Privy Council in the case of Hira Lal v. Ganesh Pershad, 9 Ind App 64 (PC) (B). Their Lorships say.
If the plaintiff had the original and did not produce it in the Court below his case was not proved because it rested almost entirely on the Ikrarnama here being to evidence of the contents of the deed of sale but to accept secondary evidence of the document which was in the plaintiff''s custody without looking at the original seems to their Lordships to be an extraordinary course.
A party ought not to be allowed to defeat his opponent by force of a document which he has in his possession & which he would not produce. The practice of not producing the document in the possession of the party has been deprecated very much by the Privy Council and their Lordships put it in the strongest terms. They say.
A practice has grown up in Indian procedure of those in possession of important documents of information laying by, trusting to the abstract doctrine of the onus of proof and failing accordingly to furnish to the Courts the best material for its decision. With regard to the suit it is in their Lordships opinion an inversion of sound practice for those de siring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
Vide Murugesar Pillai v. Gnana Sambandha Pandara Sannadh 44 Ind App 98 (AIR 1917. PC 6) (C).
Having produced the document this late stage it was urged on behalf of the respondents that where the genuineness of the document could not be questioned and the document showed that amount was advanced the security of immoveable property the Baden was upon those who pleaded that the del had been satisfied to prove by substantial evidence that payment had been made in discharge of the mortgage bond.
No doubt ordinarily that would be to case. Her the defendants to the suit the plead payment. They merely said the they had no knowledge of the execution of the document and put the plaintiff to proof. T(sic) object of the respondents is that the Con should look into the document and be care there is no endorsement of payment the Con should hold that the amount due under the mortgage is still subsisting and if there is proof of payment the Court should hold the amount due under the mortgage is still d(sic)
We cannot help remarking that such an important document as the mortgage bond wo(sic) have been mislaid or allowed to be lost. The document it would appear came to be in the passion of defendant 3 in 1945 & during all the (sic) iod of the trial of the suit in the lower Co and during all the period that the appeal pending in this Court no attempt was made the part of the defendant 3 or his legal preservative to make a search for the original document. Advantage was taken of the fact the persons against whom the liability sought to be enforced happened to be mi(sic) legal representatives of Venkatasubbarao.
A mere production of the mortage deed is not enough to fasten any liability parties who are not the executants of the document. Even if the document had been deduced along with the plaint the plaintiff would not be relieved of the burden of (sic)ving the document as required by law to title him to a decree on the basis of the document. S. 68 of the Evidence Act says that execution of a document required by law the attested by witnesses can only be proved calling at least one attesting witness. The mortgage bond therefore, could be pronely by calling an attesting witness this could be dispensed with only w(sic) the execution is admitted or has not denied. The rule enacted in S. 68 of Evidence Act is so stringent and maud that even in a case where the document is and secondary evidence is allowed to be the formality of an attesting witness being (sic)ed has to be observed.
Failure to call as witness any of the attesting witnesses where it is not established that all them are dead or were incapable of giving evidence is a fatal defect and a document is not be held to have been proved. P. W. the clerk of defendant 3 says that among attesting witnesses besides those that are (sic)id to be dead defendant 1 and defendant 6 (sic)id to be among the attestors are still alive ley have not been examined. u/s circumstances the mortgage deed cannot held to have been proved.
Putting the case at its worst as against the appellant that the statement in the (sic)itten statement of defendant 8 amounts to an mission of the execution of the document here the document has not been proved to lost an admission by the vendor of the exhibition of the deed cannot be admitted as (sic)jondary evidence against a person other than executant.
Certain aspects of the case have got be considered before the Court comes to the conclusion that the debt due under the bond still subsisting. The mortgage as is clear was routed in favour of defendant 3 Nagapotarao (sic) was no other than the son-in-law of Jaldu (Venkata Subbarao. This Nagpotarao was in live management of the estate of Venkata-subbarao. This is abundantly clear from the evidence. He was appointed one of the executors (sic)er the will of Venkata Subba Rao. Venkata Subba Rao died on 22nd June, 1942. The as (sic)unent in favour of the plaintiff by the 3rd end ant was made in 1945. It is in evidence soon after the death of Venkata Subbarao an the executors took over the estate they charged all the liabilities and whatever ba(sic) was left was invested in banks and indeed in securities.
This is what D. W. 1 one of the executors. He also says that in all these matters 3rd defendant was jointly administering the (sic)te. One would have expected that if it was a debt due by the estate of Subba Rao (sic)e arrangement would have been made for discharge of this debt. But all the time the sending of the notice by defendant 3 prior to the date of the suit nothing was for the payment of the debt.
It may also be observed that in the will (sic)uted by Jaldu Venkata subbarao there is a (sic)orical statement to the following effect are no debts from me either to Tatavarthi (sic)xpota Rao or to others or the banks or the (sic)anies". So far as this will is concerned can be no doubt with regard to its genuine as it was filed in O. S. No. 55 of 1945 (sic)uted at the instance of Venkata Subba widow to question its validity. There defendant No. 3 was actively supporting case of the will.
At the time when the will was made it not be said that there was no cordial (sic)nship between the 3rd defendant and his in-laws party. Therefore, this statement in the will to the effect that there are no debts due by the estate is very significant. It is in evidence that the defendant No. 3 borrowed large sums of money from the estate and repaid them.
During all this period defendant No. 3 never told the other executors that his borrowings may be adjusted towards the debt due to him under the foot of the mortgage. Defendant No. 13''s reticence and his inconsistency do justify the Court drawing an inference that the debt could not be subsisting. This circumstance highly improbablises the fact of the debt under the mortgage being still subsisting.
We may also advert to another important circumstance and that is that two of these very villages which were mortgaged to Nagapota Rao were given over to Nagapota Rao''s daughter i.e., the grand-daughter by Jaldu Venkata Subba Rao by means of the testamentary disposition that he made. If really there was a mortgage subsisting on these villages he would have mentioned about it further he is not likely to have bequeathed an encumbered property.
It is rather strange that Nagapota Rao an executor under the will takes a bequest of property in his daughter''s favour with mortgage in his favour. Does it mean that the encumbrance on the bequeathed property was to be cleared by his daughter? We may also mention that being the son-in-law of Subba Rao and one of the executors under the will the defendant No. 3 was in possession of all the documents. Under those circumstances if the document was not returned to the obligor and continued to be with the obligee with no endorsement of payment it cannot be a very important circumstance going against the case set up by the legal representatives of Subba Rao.
We are definitely of the opinion that this suit being one filed against persons who were not parties to the document having no knowledge of the transaction ft was incumbent upon the plaintiff to have proved the execution of the mortgage as well as the fact that the debt on the mortgage bond was still subsisting. The onus did not shift to the defendant to prove discharge of the liability. The position therefore, is that the mortgage deed which has been assigned in favour of the plaintiff must be held to have not been proved. If therefore, the mortgage bond has not been proved plaintiff who is only an assignee of the mortgage cannot get any relief as his predecessor in interest could get no relief.
The result is that this appeal is allowed the judgment and decree of the lower Court set aside. The appellant will be entitled to his costs from respondents 13 to 15 both here and in the lower Court.