(1.) THE plaintiff-respondent brought a suit in the Court of the District Munsiff of Nedumangad on 15. 3. 1119 for redemption of an alleged mortgage. It was stated in the plaint that the Karnavan of Kundarathala Tarwad had mortgaged the property described in the plaint schedule to Ayyappan Pillai kumara Pillai the Karnavan of the defendant's tarwad, and that the defendants were in possession under the mortgage. THE mortgage money was stated to be Fs. 300. THE persons who obtained the equity of redemption in the partition of kundarathala tarwad sold the same to the plaintiff on 27. 12. 1117, directing him to redeem the mortgage. THE cause of action for the suit was stated to have arisen on 21. 4. 1075, 4. 1. 1099 the date of the partition in Kundarathala tarwad and 27. 12. 1117 the date of purchase by the plaintiff. THE significance of the date 21. 4. 1075 was not divulged in the plaint. THE 3rd defendant who alone contested the suit denied the alleged mortgage and contended that the property belonged to the defendant's tarwad from ancient times, that she purchased it from the parties who got it in the partition deeds of the years 1090 and 1104 in the defendant's tarwad, that the suit was barred by limitation and that the plaintiff's vendors or their tarwad had no title to the equity of redemption. THE plaintiff filed a replication stating that the defendant's tarwad had all along admitted that they had only mortgage right in the property. THE property according to the plaintiff belonged Kuruchimatom, who gave it on kanapattom to kundarathala tarwad. THE Jenmi filed a suit as O. S. No. 742 of 1075 for recovery of arrears of Michavarom due under the Kanapattom transaction making the Karnavan and the senior Anandaravan of Kundarathala tarwad, defendants Nos. 1 and 2 Ayyappan Kumaran the Karnavan of the defendant's tarwad defendant No. 3. That suit was decreed, charging the amount on the property and thereafter when some members of the defendant's tarwad filed a suit for removal of Ayyappan Kumaran from management, the fact that he was not discharging debts of the tarwad including the one covered by the decree in O. S. No. 742 of 1075 was relied on by them as a ground for his removal. By the institution of the two suits as well as by the payment of tax by the defendants in the name of Kundarathala tarwad, the defendant's tarwad was stated to have admitted that they were in possession only as mortgagees. THE plaintiff admitted that he was not aware of the date or the year in which the mortgage was executed. THE trial court framed one issue to cover all the points in controversy and it was in these terms. "is plaintiff competent to redeem". It was held that the defendants were in possession under a mortgage from Kundarathala tarwad and that this finding was sufficient to give the plaintiff a decree for redemption, as the plaintiff had not tied himself down to any specific mortgage made at any particular time. In other words, the finding is that when the plaintiff in a suit for redemption does not allege a specific mortgage and shows that the defendants' possession must be as mortgagees he is entitled to succeed. THE decision of the High Court of Travancore in Subramonia Iyer v. Ummini, (9 TLJ 228) was relied on. THE 3rd defendant appealed from the decree for redemption to the District Court and the appeal was dismissed on substantially the same ground which found favour with the trial court. It was further held that the defendant had not pleaded limitation but only adverse possession and that no question of limitation arose for decision. As the decree of the trial court was confirmed in appeal, the 3rd defendant has brought this second appeal.
(2.) IT is obvious that the learned judge did not care to look into the pleadings; had he done so, he could not have missed the fact that the plea of limitation was raised in paragraphs Nos. 4 and 7 of the 3rd defendant's written statement and that there was no contention based on adverse possession. The learned judge observed: "no doubt the date of the mortgage is not known. But when the plaintiff has succeeded in showing that the defendant is holding the property under a mortgage and only in that capacity, a case for redemption has been made out by him and it is for the defendant to make out that he is not holding under that particular mortgage".
It is not clear how the defendant could show that she was not holding under a "particular mortgage" when the plaintiff himself had no case that the defendant was in possession under a "particular mortgage". As there are some reported decisions which might appear to support the proposition adopted by the courts below, it is necessary to examine the question in some detail. The earliest decision of the high Court of Travancore on this point is the one referred to above, viz. , subramonia Iyer v. Ummini (9 TLJ 288 ). That was a suit filed in the year 1089 for redemption of a mortgage dated 15. 5. 1041. The plaintiff failed to prove this mortgage and it was held: "in the present case, the plaintiff has come into court setting out in his plaint that the mortgage sought to be redeemed was a mortgage of 15th Dhanu 1041 and the plaint gives all details connected with the alleged mortgage. It is clear law that where the plaintiff alleges that he is entitled to possession by reason of the determination of a mortgage it lies on him to prove the mortgage which he asserts. It is for him to show that he had at the commencement of the suit a subsisting title to the possession of the property; and he must mention in his plaint facts to show that such title exists".
This principle, if I may say so with respect, is quite unexceptionable. In dealing with an argument advanced on behalf of the appellant it was observed: "in such cases where the plaintiff does not tie himself down to any specific mortgage made in a particular year and the defendant in possession denies the mortgage, the real question is whether the defendant is mortgagee of the property in suit and in such circumstances the plaintiff is entitled to succeed if he proves that the land is held by the defendant as mortgagee".
(3.) THIS observation which was based on the decisions in ganeshi Lal v. Basanti Lal (20 IC 29), Ram Lal v. Shri Mukurji Koshori Mahraj (22 IC 574) and Bala v. Shiva (ILR 27 Bom. 271) was followed by the Travancore high Court in Aiyappan v. Subramonian (4 TLT 48) Raman Raman v. Varki Skaria (4 tlt 780) and Punnan Masilamony v. Easakkimadan Velayudhan (5 TLT 875 ). Reference will be made to these decisions later.
The authority for the proposition on which the courts below placed reliance and which was urged before me by the learned counsel for the respondent is stated to be the decision of the Privy Council in Dutt Pandey v. Narendar Bahadur (LR 3 IA 85 ). This case came up for consideration before a full Bench of the High Court of Allahabad in Paramanand Misr v. Sahib Ali (ILR 11 All. 438) and I cannot better illustrate the scope and effect of the decision of the Privy Council than by quoting from the judgment of Sir John edge, C. J. : "it appears to me that their Lordships of the Privy council in the case of Raja Krishna Dutt Pandey v. Narendar Bahadur Singh (LR 3 ia 85) although they were then considering Act I of 1896, enunciated, if I may say so, the correct rule of law as to the onus of proof in suits for redemption of mortgage applicable to cases like the present. In that case which was one for redemption of mortgage, the then officiating Judicial Commissioner of Oudh had held that there was a presumption of law in favour of the plaintiff, and that the burden of proof lay, not upon the plaintiff to prove that the term did not expire before the 13th February 1856, which was the material date so far as limitation in that case was concerned, but upon the defendant to prove that it did. Their Lordships at pp. 88 and 89 of the report are reported to have said "their Lordships are not prepared to concur with the Judicial Commissioner in the view that he expressed that the presumption of law is such as he described it. It appears to their Lordships that in such a case as the present it lies upon the plaintiff to substantiate his case by some evidence by some prima facie evidence at least. But in this as in most cases, where the quantum of evidence required from either party is to be considered, regard must be had to the opportunities which each party may naturally be supposed to have of giving evidence, and although the burden of proof prima facie in this case in their Lordship's view is upon the plaintiffs, still they think the consideration should not be omitted that the defendant would naturally have the mortgage, and that it would be prima facie at all events, more in his power to give accurate evidence of its contents than in that of the plaintiff", and further "now applying this view of the law to the present case, their lordships have to see whether the plaintiff, in this view, did give such prima facie evidence as shifted the burden of proof on the defendants. Although it may be that the evidence of neither side is altogether satisfactory, nevertheless their Lordships after giving their best consideration to the case, are of opinion that the plaintiff did give some such prima facie evidence. He was himself examined. He called seven or eight witnesses who deposed to the contents of the instrument, to its containing the term which he contended for, and further, to the admission of the defendant or of his predecessors of the existence of some such term, and the Extra Assistant Commissioner believed the witnesses, having, as was before observed, the opportunity of seeing and observing their demeanour". It is quite plain to my mind that their lordships held in that case that the onus of proving that the suit for redemption of mortgage was brought within time lay upon the plaintiff. They held that prima facie evidence to that effect amounted to proof sufficient to shift the burden upon the defendant of proving the contrary. It cannot be suggested that their Lordships in using the words "it lies upon the plaintiff to substantiate his case by some evidence, by some prima facie evidence at least" meant to suggest that evidence which is not believed or considered reliable by a judge who has to find the facts would be sufficient to substantiate a plaintiff's case so as to shift the burden of proof from his shoulders to those of a defendant. In that case there was in addition to the evidence of the plaintiff the evidence of seven or eight witnesses "who deposed to the contents of the instrument to its containing the term which he (the plaintiff)contended for, and further, to the admission of the defendant or of his predecessors of the existence of some such term". One piece of evidence in that case was that the defendant in certain settlement proceedings in 1857 corrected a statement that he was the purchaser of the property and described himself as a mortgagee, a statement which was prima facie inconsistent with the term of the mortgage having expired before the 13th February 1856. Their lordships in conclusion and after they had discussed at some length the evidence such as it was, on the record say, "their Lordships therefore think that the evidence of the plaintiff is to some extent corroborated by an admission of the defendant, to the effect that there was in existence a mortgage in 1857. They therefore think that the plaintiff gave some evidence calling upon the defendant for an answer. It may be that the evidence was not very strong and that it would have been rebutted by evidence any force on the other side. But their Lordships are of opinion that the evidence of the defendant, the main portions of which appear to have been disbelieved by all three Courts, some documents connected with which have been treated by all three Courts as spurious, contains no answer to the case of the plaintiff, which must therefore prevail".;