Ram Lal Singh vs Mt. Septi

Ross, J.—This is an appeal by the plaintiff in a suit on mortgage. The trial Court passed a decree for money holding that the mortgage bond had not been proved as a mortgage. The learned Subordinate Judge held that the plaintiff was not entitled to a decree and decided the cross-appeal in favour of the defendant holding that no consideration passed.

With regard to the question of proof of the mortgage bond it was contended on behalf of the appellant that the learned Subordinate Judge had erred in law. There was a clear admission of execution in the written statement. All the attesting witnesses were summoned, but only one appeared and his statement was that the executant did not sign the deed in his presence. The plaintiff was therefore entitled to prove the execution by other evidence. The learned Subordinate Judge referred to the decision of this Court in Hira Bibi v. Ramdhan Lal [1921] 6 P.L.J. 465 as laying down the proposition that where evidence is adduced which shows that the deed was not properly attested, an admission of the execution will not have the effect of establishing the document. It is true that there are remarks to that effect in the course of the judgment, but the decision followed the decision of the Calcutta High Court which laid down that admission of execution dispenses with the necessity of proof. Consequently in view of the clear admission of execution in the written statement it must be taken that this document was sufficiently proved.

But the question still remains whether any consideration passed and, on this point, there is a finding of fact against the appellant. It is contended that the burden of proof was wrongly thrown upon the plaintiff in view of the fact that there was an earlier admission by the defendant that she had borrowed this money from the plaintiff to pay off a rent decree. But that admission was made in the plaint in a contribution suit in which the present plaintiff was, according to the finding of the Court below, acting as agent on behalf of the defendant. Consequently the admission cannot have its natural effect inasmuch as it is practically the statement of the agent, i, e., the plaintiff. The defendant is an illiterate pardanashin lady and the mere admission of her execution of the document is not sufficient to dispense with the necessity of proving the passing of consideration. In my opinion the learned Subordinate Judge was right in his treatment of the alleged admission in the plaint in the contribution suit, and there was no error of law in this part of his judgment. Consequently this appeal is concluded by the finding of fact and must be dismissed with costs. As there is a deficit Court-fee due on the cross-appeal in the Court below, the defendant will not be allowed to execute the decree for costs until the deficit is made good.

Das, J.

I agree.