AI Structured Summary
Not yet generated for this judgment
Judgment
Kumara Pillai, J.—These two second appeals arise out of a suit for redemption. One is by Defendant 2, and the other by the Plaintiffs.
Ayyappan Raman who was the karnavan of the Plaintiffs'' tarwad in 1040 mortgaged 25 paras of paddy land to Adlchan Kesavan, the karnavan of the Defendants'' tarwad, on 4-7-1040 for 1120 rash; and 2106 paras of paddy. By subsequent partitions in the Defendants'' tarwad and the branches thereof two thavazhies, which may conveniently be referred to as Narayani''s Uiavazhl and Kali''s thavazhi, are now in possession of one-fourth of the mortgage properties. According to the Defendants, these two thavazhies are divided from each other, and each thavazhi is in possession of one-half of one fourth of the mortgage properties-that is to say, each thavazhi is in possession of about 3 paras of paddy land. Defendants 1 to 6 belong to Narayani''s thavazhi, and Defendants 7 to 9 belong to Kali''s thavazhi. '' The suit was brought by the Plaintiffs for redemption of the mortgage of 1040 in so far as it relates to the portion of the properties now in the possession of the aforesaid thavazhies on payment of the proportionate mortgage amount.
Defendants 2 and 7 on behalf of their respective contested the suit. They contended inter alia that the suit was barred by limitation, that the commutation price of paddy mentioned in the plaint was low, and that the mesne profits claimed by the Plaintiff''s were excessive. The commutation price of paddy given in the plaint was according to the nirak rate prevalent in 1040, the year of the mortgage. The Defendants contended that paddy should be valued at the nirak rate prevalent on the date of redemption. The Plaintiffs claimed mesne profits at the rate of 70 paras of paddy per year. According to the Defendants the mesne profits would be only 30 paras of paddy per year.
The trial Court held that the suit was barred-by limitation so far as Defendants 7 to 9 (Kali''s thavazhi) and the portion of the properties in their possession were concerned and that on account of an acknowledgment made at the time of the settlement enquiry by Adichan Easwaran, who was the karnavan of Narayani''s thavazhi at that time, the suit was not barred by limitation so far as Defendants 1 to 6 and the portion of the properties in their possession were concerned. Repelling the Defendants contentions regarding commutation price of paddy and mesne profits the trial Court therefore passed a decree allowing the Plaintiffs to redeem the, mortgage in so far as the portion of the properties in the possession of the Defendants 1 to 6 was concerned on payment of proportionate mortgage amount with mesne profits at the rate of 35 paras of paddy per year.
Against this decree Defendant 2 filed A.S. No. 401 of 1950 and the Plaintiffs filed A.S. No. 446 of 1950 in the Mavelikara District Court, Defendant 2 objecting to the decree for redemption, the commutation price of paddy and the rate of mesne profits, and the Plaintiffs objecting to the dismissal of the suit so far as Defendants 7 to 9 and the portion of the properties in their possession were concerned. The additional District Judge of Mavelikara who heard the appeal reduced the mesne profits allowed to the Plaintiffs in respect of the properties in the possession of Narayani''s thavazhi from 35 paras to 15 paras of paddy, and subject to that reduction confirmed the decree of the trial Court. Against the decree of the District Court Defendant 2 has filed S. A. No. 254 of 1955 and the Plaintiffs have filed S. A. No. 431 of 1955.
Exhibit A is the record of the settlement enquiry regarding the mortgage properties and contains the original order of the Settlement Officer for issuing patta as well as the original depositions of the witnesses examined in the settlement enquiry. In it there is a deposition by Adichan Easwaran to the effect that the plaint properties are being held by his thavazhi and that of Kali under the plaint mortgage. The deposition was taken by a classifier and signed by Adichan Easwaran. Before Adichan Easwaran''s signature there is a statement to the effect that the deposition was read over and found to be correct. The Settlement Officer''s order for granting patta for the mortgage properties states expressly that patta was being granted because of the depositions embodied in the earlier portion of the same record. It is relying on the acknowledgment thus made by Adichan Easwaran In Ext. A that the Courts below have found that so far as Narayani''s thavazhi and the portion of the properties in the possession of that thavazhi are concerned the suit is not barred by limitation. In S. A. No. 254 of 1955 the Appellant, Defendant 2, contends that there is no proof that the statement appearing in Ext. A as made by Adichan Easwaran was actually made by him. It is admitted that Ext. A is more than 30 years old and has been produced from proper custody. The contention of Defendant 2''s counsel is that, although Ext. A has been produced from proper custody and is more than 30 years old, the only presumption that can be drawn in respect of it u/s 90 of the Evidence Act is that the signature of Adichan Easwaran appearing in it is genuine and that no presumption that he had actually made the statement appearing over his signature can be made u/s 90. In support of this contention reliance has been placed on the decisions in Vellayan Nadar v. Varghese Nadar, 1954 Ker L. T. 859 (A); Krishnaru v. Padmanabhan 11 Ker L J 409 (B); Kochu v. Padmanabhan, 30 Ker L J 356 (C) Raghavan Pillai v. Kochupennamma 30 Ker L J 749 (D) and Bhagavathi Pillai v. Janaki Pillai, 31 Ker hJ 1212 (E). Of these cases 11 Ker L. J 409 (B) Is the [ earliest. It was held in that case that a statement ''" purporting to have been made by a certain person in a settlement enquiry cannot be presumed to be genuine and that a classifier is not an officer authorised by law to take evidence as contemplated by S. 80 of the Evidence Act. In 30 Ker L J 356(C), 30 Ker L J 749 (D) and 31 Ker L. J. 1212 (E) also it was held that statements purporting to have been made before a settlement officer cannot be presumed to be genuine u/s 90 of the Evidence Act. The deposition in Ext. A is not being relied upon by the Plaintiffs as evidence given before an officer authorised by law to take evidence but only as a signed statement in writing acknowledging liability. and so the question whether a classifier is an officer, authorised by law to take evidence does not arise for decision in this case. In 30 Ker L. J. 356 (C) and 30 Ker L. J. 749 (D),it has been expressly held that although statements purporting to have been made before settlement officers cannot be presumed to be genuine by the mere production of those statements the reasons and facts stated in the order of the settlement officer directing the issue of patta can be looked into; and in 31 Ker L.J. 1212(E), which also holds that statements made in settlement enquiries cannot be presumed to be genuine from their mere production in Court, it has been held that the genuineness of such statements is a question of fact depending upon the other facts and circumstances proved in the case. Abraham Varghese. C. J" has said in 30 Ker L. J. 356 (C).
Although the statements themselves embodied in the record of the patta enquiry are not proof of legal evidence, the reason which led the settlement officer to make the order for the issue of patta are relevant."
In 30 Ker L.J. 749 (D), Madhavan Pillai, J., has said.
"However it will be quite competent for us to refer to Ext. III, the settlement decision itself and to regard as relevant the reasons and facts stated therein which led the settlement officer to make the order for the issue of patta.
The question was more elaborately considered by Nokes and Ramakrishna Iyer, JJ., in 31 Trav L, J. 1212 (E). The relevant portion of the judgment in that case reads as follows:
"Ext. C is not in the handwriting of Thanuvankumaran. It purports to be in the handwriting of a classifier of the Settlement Department. No doubt Ext. C in this case purports to be more than 30 years old. It is produced from proper custody. It is not a copy but the original itself. But how far does Section 90 of the Evidence Act go Section 90 is as follows:
''Where any document purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part or such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting and, in the case of a, document executed or attested that it was.; duly executed and attested by the persons by whom it purports to be executed and attested''. We may therefore presume that the document is in the hand-writing of the settlement officer. The signature at the foot of Ext. C purports to be that of Thanuvan Kumaran. It may be presumed therefore that the signature was his. But the question whether the statement was really given by Thanuvan Kumaran is quite different. That must depend upon whether when Thanuvan Kumaran put his signature on the record he had knowledge of the contents of the writing. It may also be remembered that, unlike in the case of statements given before a court, there is no certificate nor any other guarantee that the statement was read out to and understood by the deponent. In ascertaining therefore whether the statement was actually given by the deponent further facts tending to show that the writing really represents the statement have to be looked for. It is always a question of fact in each case and all the circumstances proved will have to be looked into to find out whether the statement could have been made by him. After a lapse of a long period oral evidence of such statements having been made would be impossible to adduce. A finding as to the correctness of the written record must depend upon other facts proved in the case. In the present case it does not appear that the ancestor of Defendants 1 and 2 applied for Pattah in respect of the property himself. He was the person in possession and if he had full proprietary interest in the property it is only natural to suppose that he would have himself applied for Pattah. It is also probable that being the person in possession he was examined at the time of the Pattah enquiry and it also appears that Pattah was eventually granted in favour of the Plaintiff''s Tarwad. In these-circumstances it is not any violent presumption to make that the statement Ext. C was really given by Thanuvan Kumaran.
Our attention was drawn to the decision in Narayanan v. Velayudhan, 9 Ker L T 343(F). It was held in that case that if there was nothing suspicious about a settlement deposition the Court would be perfectly justified in accepting it as genuine and acting thereon. Remembering that the settlement depositions are only oral statements given by the deponents and recorded in writing by the settlement officers we are not prepared to go so far as the 9 Trav L T 343 (P) case has gone. It appears to us that the presumptions raised under S, 90 would not by themselves amount to proof that the statements were really made by the alleged deponents.'''' That question must depend upon other facts proved In the case. On the facts proved in this case we have found that Ext. C represents the statement" made before the settlement authorities by Thanuvaa, j Kumaran.
Ext. C reads as follows. (The text of the document in the regional language is omitted Ed.) (My Karnavan Udayan Mathevan obtained this property under a mortgage from the Thandapeer-holder and was thus in possession until his death. I, as the senior-most of his nephews am now in possession of the property and am paying tax). Ext. C appears to amount to an admission of a subsisting mortgage. It is therefore not only evidence of a prior mortgage but an acknowledgment that it was subsisting in 1071, when Ext. C was given. In that view there cannot be any bar by limitation to the suit". Referring to this case it has been said in 1954 Ker L T 359 (A):
31 Trav L J 1212 (E) was a case-in which the facts were similar to those in this case. The Plaintiff who sought redemption of a mortgage relied on a statement given by the mortgagee before the Settlement Officer to escape the bar of limitation for the suit. The original statement itself was filed in that case. It was held that the statement could not be acted upon as an acknowledgment. It was further held that the presumptions raised u/s 90 would not by themselves amount to proof that ; the statements were really made by the alleged'''' deponents.
While it is no doubt true that it was held in 31 Trav L J 1212 (E), that the statement before the settlement officer could not be presumed to be genuine u/s 90 it is not correct to say that in that case It was held that the statement could not be acted upon as an acknowledgment. On the other hand the statement was clearly accepted in that case as acknowledgment saving the suit from the bar limitation vide the sentences: "It is therefore not only evidence of a prior mortgage but an acknowledgment that it was subsisting in 1071 when Ext. C was given. In that view there cannot be any bar by limitation to the suit") and it was also held in that .. case that the question of the genuineness of the , statement is a question of fact to be decided after looking into all the circumstances proved in the case. In 1954 Ker L T 859 (A), the original statement was not before the Court and it was only a copy of that statement that was produced. It does I not appear from the judgment in that case that the order of the Settlement Officer was produced there. The actual decision therein is therefore only to the effect that no presumption of genuineness of the statement can be drawn u/s 90 either from the copy or from the original statement itself. The question whether the reasons and fact stated in the order of the settlement officer for issuing the patta can be looked into as proved circumstances for finding out whether the statement was actually made by the particular person or not did not arise for consideration and was not actually considered in 1954 Ker L T 859 (A). As the order of a Settlement Officer to grant patta is a public document the production of that document would be proof of the order. Following the decisions in 30 Trav L J 356 (C), 30 Trav L J 749 (D) and 31 Trav L J 1212 (E), I would hold that the reasons and facts stated in the settlement officer''s order for issuing patta can be looked into as proved circumstances for ascertaining whether the statement alleged to have been made by a particular person in the settlement enquiry was actually made by him or not. The reference in the Settlement Officer''s order in Ext. A to Adichan Easiwaran''s statement embodied in the earlier portion ''of the same record can therefore be taken as sufficient proof of the fact that the said statement was ''actually made by him. It follows that so far as Defendants 1 to 6 are concerned, there is a valid ''acknowledgment of liability saving the suit from the bar of limitation.
In S. A. No. 431 of 1955 the Plaintiffs urge that the above acknowledgment made by Adichcn Easwaran is binding on Kali''s thavazhi also, i.e. Defendants 7 to 9. According to the Plaintiffs, the thavazhles of Narayani and Kali had not become divided at the time of the settlement and Adichen Easwaran was the common karnavan of the two thavazhles when he made the statement in Ext. A. They contend that the statement is therefore binding on both thavazhles. This contention is however belied by Ext. 1, udampady of 1056, which shows that, the thavazhles of Narayani and Kail became divided from each other with the execution of that udampady. Alternatively, it was also urged in this Court by the Plaintiffs'' counsel that the statement in Ext. A was made by Adichan Easwaran for and on behalf of Kali''s thavazhi also because he was authorised by the members of that thavazhi to make the statement on their behalf also. Such a case was never pleaded in the Courts below and cannot be allowed to be set up at this late stage. The finding of the Courts below that the acknowledgment contained in Ext. A, cannot be made use of by the Plaintiffs against Defendants 7 to 9 has therefore to be confirmed.
The question of the commutation rate of paddy is concluded by the Pull Bench decision in Ouseph v. Thomman, 1954 Ker L T 463: (A I E jLf" (1954 Ker 473) (G), wherein it has been held that If paddy has to be valued according to the nirak rate prevalent on this date it becomes payable and that in a redemption suit the date on which the paddy due as mortgage amount becomes payable is the date on which the mortgage amount is tendered for redemption. No tender was made in this case on the date of plaint. Paddy has therefore to be valued at the nirak rate prevalent on the date the deposit Is made in Court for effecting redemption.
In S. A. No. 254 of 1955 the Plaintiffs have filed a memorandum of objections objecting to the reduction of the mesne profits by the lower appellate court. But they have not paid the necessary court fee in respect of their claim. Nor is there any reliable evidence to show that the mesne profits would be anything higher than what has been awarded by the lower appellate court.
For the reasons stated above the decree of the lower appellate court modified as regards the-commutation price of paddy and is confirmed in all other respects. Paddy payable by the Plaintiff on account of the price of redemption is directed to be converted into money at the nirak rate prevalent on the date the redemption price is deposited in Court. Paddy payable on account of mesne profits will be commuted into money at the nirak rates prevalent, in the respective years. S. A. No. 254 of 1955 is allowed to the extent of the above modification and dismissed in other respects. S. A. No. 431 of 1955 is. dismissed. In both cases parties will bear their respective costs incurred in this Court.