Padam Kumar vs Nanhu Singh and Others

Edward Chamier, C.J.—This was a suit upon a mortgage made in 1896 in favour of the plaintiffs by defendants Nos. 1 to 4 and 8. Defendant No. 8 died shortly after the suit was instituted. It is asserted that defendants Nos. 1 to 7 are her legal representatives, but it is unnecessary to consider the correctness of this as the plaintiffs say that they will be content with a decree against the other defendants. It has been found that defendant No. 8 did not in fact execute the mortgage but was probably personated by some one else, and upon that it has been suggested that the mortgage never took effect. There is no force in this contention, for if defendant No. 8 was personated by another person it must have been with the knowledge of the other executants, and on the facts of the case it is impossible to hold that the mortgage was not intended to take effect if it was not executed by defendant No, 8.

Defendants Nos. 9 to 14 are auction purchasers of the mortgaged property. They say that they purchased in execution of a rent decree and were, therefore, entitled to annul and have in fact annulled the encumbrance. This question has not been considered by the lower Appellate Court and this appeal must proceed on the assumption that defendants Nos. 9 to 14 did not purchase in execution of a rent decree.

The plaintiffs alleged that defendants Nos. 9 to 14 purchased as benamidars for defendants Nos. 1 to 8. The First Court did not discuss this question and the District Judge said merely, "there is not sufficient evidence on which to hold that they are benamidars.," In the circumstances I do not consider that this is a sufficient finding on the question.

The First Court dismissed the suit on the ground that the plaintiffs had failed to show that there was any consideration for the bond. The District Judge arrived at the same conclusion.

In second appeal it is argued that the findings on the question of consideration should not be accepted, inasmuch as the First Court wrongly refused to enforce the attendance of defendants Nos, 1 to 4 and both Courts laid the burden of proof on the wrong party.

It appears that the plaintiffs caused summonses to be issued to defendants Nos. 1 to 4 and that the summonses were duly served. On May 17th, 1910, defendants Nos. 1 to 4 did not appear but the Court refused to issue warrants against them or to adjourn the case. Defendants Nos. 1 to 4 were obviously most important witnesses on the question of the consideration for the mortgage. In my opinion the Court should have taken steps to compel them to appear.

It seems to me that the second ground also has been made good. The mortgage was made to secure payment of Rs. 3,999 due from the executants to the plaintiffs on account of rent payable under a kabuliyat of October 1894. Defendants Nos. 9 to 14 admit the execution of the deed by defendants Nos. 1 to 4. The deed contains a definite admission by the executants that that amount is due. That admission is evidence against the mortgagors and their representatives-in-interest (Section 21 of the Evidence Act). If, as I now assume, defendants Nos. 9 to 14 have purchased no more than the interest of the mortgagor subject to the mortgage, they are representatives-in-interest of the mortgagors, the statement made by the mortgagors in the deed regarding the consideration is admissible against them, and the burden of proving that the consideration was not that stated in the deed lies in the first instance upon defendants Nos. 9 to 14, who admit the execution of the mortgage by defendants Nos. 1 to 4. I am aware that there has been a difference of opinion on the question whether such an admission may be proved against the purchaser, whether by private treaty or at auction, of the interest of the person making the admission, but I see no reason to alter the opinion which I have" expressed on this point in more than one reported case and which is supported by a number of cases beginning with the case of Radhanath Banerjee v. Jodoonath Singh 7 W. K. 441 It is for the Court which deals with the facts to say whether the defendants have proved facts sufficient to rebut the admission and to transfer the burden of proof to the other side.

This case was instituted as long ago as June 1909 and it is much to be regretted that it cannot even now be disposed of. But it is clear to me that there has not been a proper trial of the case. I would allow this appeal, set aside the decision of the lower Appellate Court and remand the case to that Court to be restored to the pending file and disposed of according to law. Costs of this appeal should be costs in the cause.

As this case has been pending for an inordinately long time, the District Judge should record findings on all disputed questions of fact including the second issue so as to prevent the possibility of a further remand.

Sharfuddin, J.

I agree.