Jamuna Prasad Shah vs Faujdar Shahni

Das, J.—This appeal arises out; of a suit instituted by the plaintiff to enforce a mortgage bond alleged to have been executed he the defendants first party on 26th August 1912. It appears that the defendants first party conveyed the disputed property to the defendants second party on 9th August 1917; and the suit was resisted in the Courts below substantially on behalf of defendants second party.

The plaintiff alleges that there was Rs. 409 due to him from the defendants first party on different transactions and that the mortgage in suit was executed by the "defendants first party to satisfy the debt due by them to the plaintiff as also in consideration for a cash advance of Rs. 341. There is an admission in the mortgage bond as to the receipt of the consideration by the defendants first party.

The defendants second party, however, denied the genuineness of the mortgage bond and contended that no consideration passed in respect of the transaction. The Courts below have taken the view that having regard to the attitude taken up by the defendants second party the onus was upon the plaintiff to establish that consideration passed in respect of the transaction of the 26th August 1912. Both the Courts concurrently found that consideration did not pass and in that view dismissed the plaintiff''s suit.

The first question which we have to determine in this appeal is whether there was any onus upon the plaintiff to establish the passing of consideration. Now, as I have said, the defendants first party admitted in the mortgage bond that they had received the consideration money from the plaintiff. The defendants second, party took a conveyance of the disputed properties from the defendants first party on 9th August 1917.

It is conceded by Mr. Mitter who appears on behalf of the respondents that so far a the defendants first party are concerned they are bound by their own admission and that, if they contested the plaintiff''s suit the onus would be on them to establish that consideration did not pass in respect of the mortgage; but he contends that the de-defendants second party are in a different position and are in fact strangers to the transaction of 26th August 1912; and that, as they deny the genuineness of the transaction, the plaintiff has to establish the reality of it as against them ; and in support of his argument Mr. Mitter has relied on Brajeswaree Peshakar v. Budhanuddi [1881] 6 Cal. 268 Krishna, Krishna Kisor De Vs. Nagendrabala Chaudhurani, . and Bisheswar Dayal v. Harbans Sahay [1907] 6 Cri.L.J. 659, Having regard to the authorities some of which at any rate support the argument of Mr. Mitter, it is necessary to deal with the point with care.

As I have said, it is not suggested that the recital in the mortgage bond as to the receipt of the consideration money, is not admissible as against defendants first party. Now on what principle can it be urged that it is not equally admissible as against defendants second party who have taken a conveyance of the property from the defendants first party. Section 18, Evidence Act, provides as follows:

Statements made by parsons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissions, if they are made during the continuance of the interest of the persons making the statements.

Now it is quite true that the admission of the defendants first party in the written statement is not admissible as against defendants second party, because, it was made after they parted with their interest in the subject-matter of the suit in favour of the defendants second party; but so far as their admissions in the mortgage bond of 26th August 1912 are concerned, they obviously stand on a different footing. I think this is clear from Section 18, Evidence Act, and the relevancy of such admission is clearly provided for in Section 21, Evidence Act, which provides that admissions are relevant, and may be proved as against the person who makes them, or his representative-in-interest. The defendants second party are clearly the representatives-in-interest of the defendants first party. If there were no authorities on the subjact, I should have no his station whatever in coming to the conclusion that the statements made by the defendants first party in the mortgage bond of 26th August 1912 are admissible against the defendant second party.

But, as I have said, Mr. Mitter relies on three decisions of the Calcutta High Court. So far as the first decision is concerned, I do not think that it completely supports the argument; and so far as the later decisions are concerned, speaking with the utmost respect, I consider that they have proceeded on the misunderstanding of what was actually decided by Garth, C.J., in the first mentioned decision. The material question which had to be considered in that case was, whether the unqualified admission of the mortgagor as to the receipt of consideration money was admissible as against the subsequent purchaser for value.

The power appellate Court, without reference of the question of onus of proof and on an examination of all the evidence had decided that the mortgage bond which was the subject matter of the suit was not a bona fide document and that no consideration passed in respect of the same. The case came up before Jackson and Mc-Donell, JJ. and the two learned Judges differed in opinion, Jackson, J. being of the opinion that the recital in the mortgage bond was admissible in evidence as against the contesting defendants, Mc-Donell, J. being of a different opinion. The case was then heard by Garth, C.J. In dealing with the argument which we are now considering the learned Chief Justice said as follows:

In this case, the only way in which, as far as I can see, the recital in the bond could possibly be made evidence against defendant 2, was this: he no doubt claimed under defendant 1, and he claimed the very property which was professedly mortgaged by his vendor, consequently the recital was a statement made with reference to that property by the person under whom he claimed, and therefore it was admissible in evidence as against him.

I stop here for a moment to point out with the utmost respect that the proposition for which the plaintiff contends in this case was put with very great clearness and precision. Is there anything in the subsequent part of the decision to suggest that the learned Chief Justice rejected the proposition as an unsubstantial one? I think not; for the learned Chief Justice continued as follows:

But than, in a case of this kind, the weight to be attributed to the recital would depend entirely upon the other evidence of the bona find as of the bond. If the plaintiff''s evidence did not satisfy the Court that the transaction itself was honest and bona fide, the fact that the parties to the fraud had stated in the bond that the consideration was truly paid would, as it seems to me be entitled to little or to no weight.

As I read the judgment, the learned Chief Justice did not decide the case on a question as to the onus of proof. I read his judgment as indicating that the onus of proof was on the defendants; but in the circumstances o� that particular case the weight to be attributed to the recital was very slight. I do not for a moment suggest that the present case cannot be decided in the way in which Sir Richard Garth decided that case.

The onus of proof in a case of this kind must primarily be on the defendants: but if the plaintiff goes to the witness-box, the defendants may show by the cross-examination of the plaintiff and from other circumstances that the case of the plaintiff is inherently suspicious. Now how much evidence in a particular case would be required to turn the scale is a matter entirely for the Courts of facts. That is a matter with which we are not concerned in this case. Sir Richard Garth was satisfied that the lower appellate Court in that case had dealt with the whole case without reference to the onus of proof and he had no difficulty, in those circumstances, to come to the conclusion that the decision of the lower appellate Court was binding on the High Court in second appeal.

But as I read the judgment in-this case of the learned Judge in the lower appellate Court, the whole case has been decided on the view that the plaintiff failed to establish that consideration passed in respect of the transaction which is the subject-matter of the suit. The learned District Judge considered that the learned Subordinate Judge was right in placing the onus upon the plaintiff. Having expressed this opinion, he proceeded to say as follows:

The oral evidence must be considered in regard to this matter of onus; and, having carefully considered the entire evidence in the light of that consideration, I am not prepared to differ from the learned Subordinate Judge.

It seems to me therefore that the whole decision of the learned Judge in the Court of appeal below rests upon his view as to the onus of proof.

I now come to the subsequent decision upon which Mr. Mitter relies, the case of Krishna Kisor De Vs. Nagendrabala Chaudhurani, , which of course is entitled to the highest respect. In deciding that case, the learned Judges said as follows:

If an action to enforce a mortgage security is contested by the mortgagor and execution is-admitted by or proved against him, the onus lies upon him to prove that the recital as to the payment of consideration for the deed

which he executed is untrue....

When, however, the claim is contested by a stranger who denies that the bond was executed and also asserts that there was no consideration for the mortgage, the onus is upon the mortgagee to prove his case.

Stopping here for a moment, I may point out that no exception can be taken to the statement of law as propounded in the passage which I have just quoted. The question, however is, whether a subsequent purchaser for value can be regarded as a stranger. In my opinion Section 18, Evidence Act read with Section 21, makes it perfectly clear that the subsequent purchaser is not a stranger but a privy. The learned Judge then proceeds to say as follows:

This position may be fortified by reference to long line of decisions and amongst the decisions to which the learned Judge refers is the decision of Garth, C.J., to which I have already referred. I may mention that the decision'' of Garth, C.J., is not an authority for the proposition that a recital in the mortgage-bond as to the receipt of consideration money by the mortgagor is not-admissible in evidence against a subsequent purchaser for value.

The last of the cases relied upon by Mr. Mitter substantially adopts the view-taken in Krishna Kisor De Vs. Nagendrabala Chaudhurani, . As I have said, these--decisions are entitled to the greatest weight; but they are not binding on this-Court. Having regard to what Sir Richard Gaith himself stated in the earliest of these cases and having regard to Section 18 and Section 21, Evidence Act, I am clearly of opinion that a recital in a mortgage-bond as to the receipt of the consideration by the mortgagor is admissible as against a subsequent purchaser. It was therefore admissible as against defendants second party and the Courts; below should have considered the whole case from the point of view that the initial onus was upon the defendants second party.

There is, however, no mystery in the term '' onus.'' The onus may be upon the defendants; and yet the defendants may by cross-examination of the plaintiffs-extract such admissions that the Court may well come to the conclusion that the-transaction upon which the plaintiff relies is inherently improbable. It is not possible to lay down any general rule on this point, nor is it desirable that we should do so : but, if I were satisfied that the Courts below dealt with the case fairly without reference to the question of onus of proof, I should have hesitated before interfering with the decision in this case.

But now arises a point which is of some importance. It is recited in the mortgage-bond that Rs. 341 was received in cash by the defendants first party. It was admitted on behalf of the plaintiff that the money was not paid before registration but was paid after registration that is to say, after execution of the document. Now this illustrates what I mean by saying that the plaintiff by his own admission in the witness-box may help the defendant in the matter of the onus. It is obvious therefore that the plaintiff cannot succeed so far as the sum of Rs. 341 is concerned ; and this portion of the claim must fail unless the books of account which the plaintiff will have liberty to produce before the Courts below should help him in any way. As regards the sum of Rs. 409, it is obvious that the Courts below must consider the whole case in the light of the observations in this judgment.

But one point remains; it appears that the account books tendered by the plaintiff were rejected by the Court of first instance. Now the facts are these. The suit was filed on 21st July 1924. The plaintiff was directed to file his books of as court on or before 16th November 1924. I may point out that the issues were settled on 12th January 1925; but the plaintiff was as a matter of fact directed to file the books of account before the settlement of issues. He failed to file his books on the date fixed, but he actually made an application on 3rd February 1925, that is to say, within a few days of the settlement of issues for liberty to file the books. The learned Subordinate Judge passed an order directing that the books be kept on the record. The trial commenced on 30th March 1925 and when the plaintiff tendered the books of account, they were rejected by the learned Subordinate Judge on the ground that they were filed too late.

In my opinion, [the course adopted by the learned Sub-ordinate Judge was not a proper one. It may be pointed out that he himself allowed the defendants to file certain documents on 12th February 1925 and I can see no reason why he should have accorded this preferential treatment to the defendants. But in truth the question is decided by reference to the relevant provisions in the Civil Procedure Code. I have dealt with the point at very great length in various cases, some of which are reported and I respectfully draw the attention of the learned Subordinate Judge to a decision of this Court in Durga Prasad Thakur and Others Vs. Basawan Pandey and Others, . My view is this. The Court, has a discretion to receive documentary evidence if filed after the date of the first hearing of the suit, although it has equally a discretion to reject those documents. But the Court must exercise the discretion when the party files those documents. It was open to the learned Subordinate Judge on 3rd February 1925 to refuse to receive the documents; but on the contrary he passed an order directing that they should be kept in the record. That order must be read as an order '' receiving '' the documents under Order 31, Rule 2 of the Code. It was of course open to the Court afterwards to reject them on the ground that they were not relevant documents or to refuse to act upon them on the ground that they were-not genuine. But the discretion to be exercised by the Court under Order 13, Rule 2 of the Code is exercised and properly exercised when the documentary evidence is sought to be filed by a party. In my opinion in the circumstances of the case there is no reason why the plaintiff should not be allowed to tender the documentary evidence, especially as the learned Subordinate Judge had no hesitation whatever in receiving the documentary evidence filed by the defendants nine days after those filed by the plaintiff.

I would allow the appeal, set aside the judgments and the decrees passed by the Courts below and remand the case to the lower appellate Court with direction that it should remand the case to the Court of first instance. The plaintiff will have liberty now of tendering the documentary evidence which was filed by him on 3rd February 1925. It is understood that he will not be at liberty to tender in evidence any other documentary evidence. It will be open to the learned Subordinate Judge to consider the books of account; but how he will regard them it is not for us to say in this Court. It will also be open to the defendants second party to tender such evidence in rebuttal of the documentary evidence which may be tendered by the plaintiff as the defendants second party may be advised. Costs will abide the result and will be disposed of by the lower appellate Court.

Fazl Ali, J.

I agree.