Pasupuletti Venkamma vs Shaik Hamid Minor by Next Friend Pier Sarn Bibee

Sundara Aiyar, J.—Two points have been argued in second appeal. The first contention is that the finding that the sale of a portion of the

property mortgaged to the plaintiff was not proved to be in complete discharge of the mortgage debt should not be accepted, because the

endorsement on the mortgage-deed, Exhibit A, has not been legally proved. The Subordinate Judge regards the signature of the 1st defendant to

the endorsement as sufficiently proved on the ground that the signature bears a close resemblance to the 1st defendant''s signature affixed to the

deposition and the plaint in the suit and to some documents put in for the defendants. Mr. Ramadoss contends that an inference drawn by a mere

comparsion of signatures can only be used for supplementing other evidence and cannot be regarded as legally sufficient by itself to prove the

signature. He contends that the language of Section 73 of the Evidence Act supports his argument. I am unable to agree with this contention. As

pointed out in Burindra Kumar Ghoss v. Emperor 7 Iad. Cas. 359 cited by Mr. Ramadoss, comparison of signatures is one of the modes of

proving handwriting, and although, where there is no other evidence, such proof would be regarded as hazardous and inconclusive, it cannot be

regarded as an error in law to base the conclusion on such proof alone, and a Court of second appeal would, in my opinion, have no power to set

aside a finding based on such comparison. Mr. Ramadoss has referred to another case, Nobin Krishna Mookerjee v. Rassick Lall Lala 10 C.k

1047 but there the learned Judges who decided the case merely came to the conclusion that the similarity in signatures as shown by comparison

was not sufficient to prove the document in question. The Subordinate Judge also attached weight to the fact that the 1st defendant himself did not

definitely deny his signature to the endorsement. It is then argued that, even assuming the 1st defendant''s signature to be proved, there was no

evidence that he was acquainted with the contents of the memorandum which he signed. Assuming this to be the fact, I must hold that it was open

to the lower Courts to infer that the 1st defendant signed the memorandum with the knowledge of its contents. Here again, I think, there is no error

of law which would justify the interference of this Court in second appeal. Mr. Ramadoss may be right in contending that we must take it that the

finding of the Subordinate Judge on the main question, whether the mortgage was discharged as a whole, was influenced by his finding as to

defendant''s signature to the endorsement, although the Subordinate Judge observes that the only direct evidence to prove the defendant''s

contention was that of a person who did not commend himself to him. As I have held that the finding as to 1st defendant''s signature must be taken

to be legally unobjectionable, I am bound to accept the finding that the defendants failed to prove that the whole of the mortgage-debt due to the

plaintiff was discharged by sale to him of a portion of the property.

The second contention urged here is that, as the plaintiff himself purchased a portion of the property, the 5th defendant is entitled to redeem the

portion purchased by him on payment of the proportionate share of the mortgage-bond. The Subordinate Judge refused to give effect to this

contention because the 5th defendant''s purchase which was for a sum of Rs. 1,500 was not evidenced by a registered instrument as required by

the Transfer of Property Act and was, therefore, legally inoperative. It is argued that the 5ih defendant also obtained a patta from the zemindar for

the land purchased by him and that, even if the sale by the 1st defendant was legally invalid, the patta would confer on him an occupancy right to

the laud. But it is quite clear from the 5th defendant''s contention that he derived his title under the sale made to him by the 1st defendant, and that

the zemindar did no more than recognize that title by giving a patta. The zeminiar would have no power to do so unless the 1st defendant''s

previous title had come to a termination in some legal manner. It is suggested that the 1st defendant must be taken to have relinquished his right,

especially as he allowed the 5th defendant to take a patta from the zemindar. No doubt, a ryot may relinquish the land in his occupation so as to

vest the title in the zemindar, who would then be able to again grant it to another ryot. But the question is, how did the 1st defendant''s title, as a

matter of fact, terminate in this case? He could not relinquish what he has sold to the 5th defendant. Relinquishment, therefore, could not be the act

which terminated his right. The Subordinate Judge is, therefore, right in holding that the 5th defendant''s title is legally invalid. It is then argued that

the plaintiff himself admitted that the 5th defendant had some right to the property which he purchased and made him a party to the suit and was

willing that any of the defendants should redeem the property. It is also contended that, as one who made a purchase which was legally defective

and got into possession under his defective title, the 5th defendant would be entitled to urge the same equity as that which he would have had if he

had obtained a legally valid title. So far as the plaintiff''s admission is concerned, he merely stated in his plaint that the 1st defendant allowed the 5th

defendant to gel a pitta from the zemindar and was in possession, and on that ground, he made him a party to the suit. Persons in possession of any

portion of the mortgaged property would be proper parties to a suit for sale. But this would not amount to any admission that the 5th defendant

had such a title as would entitle him to ask for an apportionment of the mortgage.

I am also of opinion that no purchase which could not be legally recognized, accompanied with possession, would entitle the purchaser to claim

the right of apportionment. The case has no analogy to the right of a purchaser under a defective title, who pays a prior encumbrance, being

entitled to be subrogated to the rights of the prior encumbrancer. The equity to subrogation rests on the payment of prior encumbrance, coupled

with justification for such a payment derived from a conveyance notwithstanding its imperfection. Here, there are no equitable grounds which

would entitle the 5th defendant to claim apportionment. In the first Court, no such claim was made by him. If he had done so, it would then have

been necessary to inquire whether there were sufficient circumstances to entitle him to claim such a right. The claim was put forward in the Court of

Appeal, but I think the Subordinate Judge was justified in disallowing it. After all, the 5th defendant would not necessarily sustain any injury by this

plea not being allowed to be raised at a late stage.

If he is made to pay a larger amount than he is bound to pay, it would be open to him to seek relief against the 1st defendant. So far as the

plaintiff is concerned, he claims to recover only the amount that would be properly chargeable on the property not sold to him, and any equities as

among the defendants themselves can be enforced by a separate suit. On the whole, I am of opinion that the case is not one in which this Court

should interfere in second appeal. I reject the second appeal.