Sundar Chaudhari vs Lalji Chaudhri and Others

Courtney-Terrell, C.J.—This second appeal comes before me on account of a difference between Wort and Fazl Ali, JJ., who heard it in the first instance. The appeal arises out of a mortgage suit. The plaintiff alleged by his plaint that the first four defendants executed the mortgage bond and that the two remaining defendants were minors and were joined in the suit in that capacity.

A curious feature of the case is that no formal evidence was given in the case other than the putting in by the plaintiff of a certified copy of the mortgage bond in the suit. By their defence the defendants, according to my reading of the written statement, denied that they had executed the mortgage bond as alleged in the plaint.

The plaintiff, on the other hand, was under the apparent impression that the written statement admitted the execution of the bond and also relied upon the law that inasmuch as in the mortgage bond the receipt of the consideration money was acknowledged called no evidence as to the receipt in fact by the defendants of the consideration money. No defence was called in the suit and in appeal it was held that the written statement did not amount to an unequivocal admission of execution by the defendants of the mortgage bond and the plaintiff not having taken the trouble to prove its execution his suit failed.

One of the learned Judges of this Court to whom the case went in second appeal considered that the proper construction of the written statement was an admission of the execution; the other learned Judge (Fazl Ali, J., with whose opinion I agree on this point) held that the view of the learned Subordinate Judge on appeal was correct and that execution was in effect denied in the written statement. The material paragraphs of the written statement are Nos. 4, 5 and 6. The defendants in those paragraphs deny that they ever borrowed the mortgage money or that the mortgage money was applied as stated by the plaintiff to the paying off of a particular creditor whom he named. They denied in fact that they ever borrowed a single farthing from the plaintiff for paying off this debt. Then para. 5 says it is true that defendants 1 to 4 executed a mortgage bond for Rs. 250 and the argument is raised on behalf of the plaintiff that that is an admission of execution. The pleadings themselves including the written statement are prolix and in order to get at their true construction it is necessary to study the written statement as a whole; but even in the three paragraphs which I have mentioned it is perfectly clear that the defendants raised this affirmative case.

The defendants agree that they actually signed the mortgage bond and they also agree that that mortgage bond was actually registered, but their case is that they never allowed the mortgage bond to come into the possession of the plaintiff. This the plaintiff himself admits. When the mortgage bond was registered they did not allow the plaintiff to retain the receipt given by the registration office. They go on to say that they refused to part with the mortgage bond and refused to let the plaintiff have the receipt because they had not in fact received the consideration money.

Now the setting forth of that story which is contained in the three paragraphs of the defence is a denial of execution. Execution does not mean mere signing but it means all acts necessary to make the parties to the contract bound thereby. If a man . merely signs a contract and puts it in his pocket and does not allow it to depart from him as his act, that is not execution; and the story of the defendants here is that they signed the contract but they never allowed it to depart from them or to come into the possession of any other person who could make use of it and hold them bound by it. That being the proper construction of the pleading in the circumstances of the case I am of opinion, in agreement with the Subordinate Judge, that an obligation lay upon the plaintiff to prove the execution formally. I do not think it is necessary for the purposes of the decision of this case to go into the further question of the denial or not of the passing of consideration.

The fact that execution is denied is sufficient to throw the proof of the execution of the document upon the plaintiff. He does not discharge that onus by merely producing the certified copy of the document as registered because the defendants in their pleadings dealing with the question of registration expressly set forth the circumstances under which it was registered, that is to say, they say in effect that it was registered before it was executed, although for the purpose of the registration the officer effecting the registration does require a distinct statement that the document was executed by the persons purporting to register it. That statement however in view of the complete story set forth in the written statement, is not by itself an admission of execution.

Without going further into the matter than this I am satisfied that the onus of proving the mortgage lay upon the plaintiff and as he was foolish enough not to produce any evidence his suit has rightly been held to have failed throughout.

I would therefore dismiss the appeal and the appellant will pay the costs of this hearing and also of the hearing before the two learned Judges who first heard it.