Decided on July 29,1968

NARAYAN Appellant

Referred Judgements :-


Cited Judgements :-



L. S. MEHTA, J. - (1.)THIS appeal emerges out of the judgment of learned Senior Civil Judge, Kishangarh, dated September 8, 1959
(2.)THE Chamber of Commerce Ltd. Madanganj, Kishangarh, filed a suit in the court of Senior Civil Judge, Kishangarh, on November 15, 1956. THEreafter certain amendments were made in the plaint. THE final plaint is dated February 26, 1958. THE averments in the plaint are that one Kishan Gopal deceased mortgaged his house, situated in Mgdanganj, Kishangarh, with the plaintiff. THE details of the property are given in para No. 2 of the plaint. THE property was mortgaged on January 15, 1945, for a sura of Rs 25,000/-, with interest at the rate of annas seven per cent per month. THE same property was again mortgaged with the plaintiff for an additional sum of Rs. 2,000/-, on April 23, 1945, at the above rate of interest. THEreafter Kishan Gopal died. Defendant No. 1 Shri Narayan is the minor son of the deceased. Defendant No. 2. Smt. Kailash Kanwar is his widow. THEy being the heirs and legal representatives of the deceased mortgagor are, according to the plaintiff, liable to make payment of the mortgage amount. Defendant No. 3 was the prior mortgagee of the property. He after having obtained a decree, transferred his right to recover the amount in favour of defendants Nos. 4 and 5. This very property was subsequently mortgaged with defendants Nos. 5, 6, 7, and 9 and, therefore, they have also been made parties to the suit. Kishan Gopal made payment of Rs. 4459/4/9 from time to time towards the interest of the mortgage-amounts upto Mah Badi 2 Smt. year 2004. After the demise of Kishan Gopal, defendants Nos. 1 and 2 also made payments of Rs. 50/-, on February 9, 1951, and Rs. 25/-, on February 5, 1954 on account of interest. Notices were given to the defendants Nos. 1 and 2 to clear off the debts, but that was not done. THE plaintiff, therefore, was constrained to bring the present suit for the recovery of Rs. 27,000/-, as principal and Rs. 12719/12/- on account of interest.
The contesting defendants Nos. 1 and 2 submitted their written statement on January 8, 1958. They contended that the mortgage-deeds were not properly executed, nor were they validly attested according to law. It was also averred in the written statement that the mortgaged property was an ancestral one and that Kishan Gopal had no authority to mortgage it or to take lone on its security without any legal necessity. It was further contended that the suit was beyond time and that Kishan Gopal was edicted to gambling. The rest of the defendants did not contest the suit.

On February 3, 1958, the trial court framed 7 issues. The plaintiff examined 8 witnesses. The defendants did not produce any oral evidence. The trial court by its judgment, dated September 8, 1959, decreed the plaintiff's suit against defendants Nos. 1 and 2 for the amount sued for together with interest at the stipulated rate from the date of the suit till the date of the payment or the deposit of the amount in the court within six months, failing which the plaintiff was held entitled to pray for realisation of the money by sale of the mortgaged-property. Further interest was also allowed at the rate of six per cent per annum after the expiry of the period of six months.

Aggrieved against the above judgment and decree, defendants Nos. 1 and 2 have filed the present appeal. Learned counsel for the appellants raised the following points in the course of his arguments - (1) That the trial court went wrong in holding that the mortgage deeds Exs. 1, 2, 3 and 29 have been duly proved; (2) that the trial court fell in error in not agreeing with the defendants' contention that the original mortgagor Kishan Gopal was edicted to speculation and, therefore; the debt being 'avyavaharik' is not recoverable from the appellants; (3) that issue No. 5 was wrongly framed and, therefore, the case should be remanded to the trial court; and (4) that the mortgaged property being ancestral, the burden of proof lay upon the plaintiff to show that the transactions were effected for legal necessity, and since the plaintiff has failed to prove this fact, the trial court committed an error, in not dismissing the plaintiff's suit. We now deal with the points raised above in seriatum.

Taking the first point first, Ex. 1, is the mortgage deed, dated 15-1-1945, alleged to have been executed by Kishan Gopal in favour of the Chamber of Commerce, Madanganj, Kishangarh, for Rs. 25,000/-, with interest at the rate of annas seven percent per mensem. The document is a registered one. Its scribe is petition writer Balchand, P. W. 2, He says that the contents of Ex. 1 are in his handwriting and he scribed the deed at the instance of Kishan Gopal. P. W. 7 Hiralal Chairman Chamber of Commerce, deposed that Kishangopal affixed his signature on Ex. 1 in his presence P. W. 8. Gir Raj, Manager of the Chamber of Commerce, deposed that Kishan Gopal put his signature in Ex. 1 before him. Gopi Kishan, P. W. 9, admits that he signed the document as an attesting witness at the instance of Kishangopal. Hiralal Sancheti is another attesting witness of Ex. 1. It is in the plaintiff's evidence that Hiralal died after the execution of the document. His signature as an attesting witness stands proved by the testimony of P. W. 7 Hiralal Saraogi and P. W. 8 Gir Raj. The document was also registered in the office of the Sub-Registrar of the then Kishangarh State, Shri V. V. Halve, P. W. I. Shri Halve has stated that the endorsement between the words 'c' and 'd' in Ex. 1 is in the hand-writing of his clerk Kishanlal and he put his signature below it. This evidence has not been controverted by the defendants in any manner. The trial court believed in the above testimony. The minor discrepancies pointed out by learned counsel for the appellants in the depositions of the witnesses are of little importance. The trial court, therefore, rightly held that Ex. 1 is a genuine covenant.

Ex. 2, dated April 23, 1945, is another mortgage deed for Rs. 2000/-, alleged to have been executed by the deceased Kishan Gopal in favour of the Chamber of Commerce Ltd. , Madanganj, Kishangarh. This document was also scribed by the petition-writer Balchand, P. W. 2, at the request made by Kishan Gopal Kan Mal P. W. 5 is its attesting witness. He testifies that the conveyance bears his signature. The signature of Kishan Gopal on Ex. 2 is proved by Hiralal, P. W. 7 and Gir Raj. P. W. 8. The signature of another attesting witness deceased Hiralal Sancheti has been identified by Hiralal Saraogi, P. W. 7 and Gir Raj. P. W. 8. The document was presented before the Sub-Registrar, Shri V. V. Halve, P. W. I, by the deceased Kishan Gopal. Shri Halve has stated that the endorsement made in his Office is in the hand-writing of his clerk Kishanlal and that it bears his signature. This evidence, remains unrebutted and has been relied on by the trying Judge. There is, therefore, no manner of doubt that the mortgage deed dt. April 23, 1945, Ex. 2 has been proved satisfactorily.

Ex. 3, dated November 20, 1964, is another registered mortgage-deed, alleged to have been executed by Kishan Gopal for Rs. 7000/-, in favour of Maharaja Kishangarh Mills Ltd. Kishangarh. It has been produced to prove that the loan in respect of Ex. 1 was obtained to clear off the past debt. According to Kundanmal, P. W. 4, entry of Ex. 3 is in his hand. When Kishan Gopal was paid Rs. 25,000/-, on the basis of the mortgage deed Ex. 1, a representative of the Kishangarh Mills came over there and he was paid a sum of Rs. 7000/- at the instance of Kishan Gopal ; vide the statements of Gir Raj P. W. 8 and Hiralal P. W. 7. Shri Halve has said that the executant Kishan Gopal presented himself before him with the document Ex. 3 and that he personally knew him. It is true that there is no sufficient oral testimony to prove the contents of Ex. 3, but as the document bears an endorsement of the Registration office and the signature of the sub-Registrar, who registered it, it seems to us that, as provided by sub-sec. (2) to sec. 60, Registration Act, this endorsement can be taken as evidence of the fact that the original document contained the signature of Kishan Gopal. As their Lordships of the Privy Council pointed out in Gopal Dass vs. Sri Thakurji (1), there is a pre-sumption that registration proceedings were regular and honestly carried out and unless it is shown that the person admitting registration before the Registrar is an imposter, it should be taken that the executant admitted the signature in the mortgage-deed. There is another important case which has a bearing on the fact in issue. In Gangamoyi Debi vs. Troiluckhya Nath Chowdhry (2 ). it was observed by the Privy Council that registration is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties and see that proper persons are competent to act and are identified to his satisfaction and things done in his presence will be presumed to have been done duly and in order. Consequently, the admission of the executant before the Registrar must be deemed to have been proved by the endorsement of the Registrar in view of the provisions of secs. 59 and 60. Such being the settled law, we are not prepared to accept the contention of learned counsel for the appellants that the certificate, of the Sub Registrar under sec. 60 of the Registration Act cannot be considered as a substantive piece of evidence and that sec. 68 of the Indian Evidence Act required independent proof that the alleged signature of the executant was in his hand writing and that mare proof of presentation of the document or its admission does not satisfy that requirement. We are clearly of the opinion that in the circumstances of the case, the endorsement of the Registration under sec. 60 of the Registration Act can constitute evidence that the registered document contained the signature of the person who purported to be its executant. In this connection we agree with the ratio decidendi evolved by the Andhra Pradesh High Court in Putti Lakshmayya vs. Garlapati Tirupathamme (3 ).

It may also be pointed out that in so far as Ex. 29 is concerned, there is the certificate of the Registration office. The document, which is required by Jaw to be attested, must be distinguished from the document which is not so required to be attested. As has been pointed out by them learned counsel for the appellant no Transfer of Property Act was in force in the erstwhile Kishangarh State, Therefore, there was no necessity of attestation in the document in accordance with the technical provisions of sec. 59, Transfer of Property Act. It must now be regarded as a settled law ever since the decision of their Lordships of the Privy Council in Gopal Das vs. Sri Thakurji (supra) that evidence of due registration is itself evidence of execution against the parties. Sec. 79 of the Evidence Act lays down that a certificate which is by law to be declared to be admissible evidence of any particular fact and which purports to be duly certified by a competent officer shall be presumed to be correct; provided that such deed is substantially in the form and purports to be executed in the manner directed by law in that behalf. There is a further presumption that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character, which he claims in such paper. In the light of this provision, the genuineness of the certificate of registration must be presumed under sec. 79, Evidence Act, and the evidence of the Sub-Registrar is not necessary to prove it. Apart from any oral or direct evidence, there is a good deal of circumstantial evidence, in this case on which reliance can he placed. The execution or authorship of a document is a question of fact and it can be proved like any other fact by direct as well as by circumstantial evidence. Sec. 67, Evidence Act, does not lay down any specific mode of proof and, therefore, circumstantial evidence as a mode of proof of execution of document cannot be excluded in a given case, as a legitimate method of proving a document and such evidence may consist of the internal evidence contained in the document itself. The question, therefore, is whether there is sufficient circumstantial evidence to hold in the present case that the mortgage-deed has been proved satisfactorily. In this connection, reference may be made to the internal evidence available from the document itself. The document clearly mentions that Rs. 11,000/- were borrowed from Manakchand in lieu of the mortgaged property. This fact is corroborated not only by the oral evidence of Girraj and Gopi Kishan, but also by the endorsement found at the bottom of the document made by the lender. This endorsement has been proved by the testimony of Hiralal, P. W. 7, Girraj, P. W. 8 and Kundan Mal, P. W. 4. Hiralal has said that Rs. 11,000/- were paid to Manakchand. The document which was in favour of Manakchand was taken by him after obtaining receipt for it. Girraj, P. W. 8, has also said that Rs. 11144/-, were given to Manakchand, who wrote the receipt in Ex. 29 in his presence. Kundan Mal, P. W. 4, has said that money was paid to Manakchand after obtaining his signature for receiving the amount. Relevant Bahi entries have also been verified by Mangal Chand, Cashier of the office of the Chamber of Commerce.

Under the circumstances and evidence referred to above, we see no justification in accepting the argument of learned counsel for the appellants that Exs. 1, 2, 3 and 29 being not genuine should have been ignored by the trial court.

Coming to the second point, raised on behalf of the appellants, relating to the 'avyavaharik' nature of the debts, learned counsel for the appellants drew our attention to the statement of Poosalal, P. W. 3, who has said that the deceased Kishan Gopal Was in the habit of gambling and indulging in speculations. He was also a man of loose character. According to this witness whatever wealth Kishan Gopal had acquired from his ancestors was squandered away by him. Almost to the same effect is the statement of Gopi Kishan, P. W. 9, Contrary to this Hiralal, P. W. 7, Chairman, Chamber of Commerce, has said that Kishan Gopal never indulged in speculation or Teji Mandi transactions.

According to Hindu Law, the doctrine of pious obligation, under which sons are held liable to discharge their father's debts, is based solely on religious considerations. This doctrine postulates that the father's debts must be 'vyava-harik: If the debts are not 'vyavaharik' or are 'avyavaharik', the doctrine of pious obligation cannot be invoked: vide Satya Narain vs. Sri Kishan Das (4 ). The sons who challenge the alienation have not only to prove that the antecedent debts were immoral, but also that the alienee had a notice that they were so tainted. In this respect no valid distinction can be made between a mortgage and a purchase. The above principle would apply to the mortgages created by the father. In support of this proposition a reference is made to Luhar Amrit Lal Nagji vs. Doshi Jayanti Lal Jethalal (5 ). Again, a general charge of immorality, as has been observed by their Lordships of the Privy Council in Sri Narain vs. Lala Raghubans Rai (6), is not sufficient to prove that the debts were contracted for tainted object. Here the appellants have led no evidence to prove that the amounts obtained through mortgages were spent wastefully or extravagantly. It was for them to substantiate the fact that the debts were contracted for immoral purposes to the knowledge of the mortgagees. But that has not been done. Heavy burden lay upon them to prove the immorality of the debt and that burden is not discharged by simply showing that the father led an extravagant or immoral life. The appellants ought to have established a direct connection between the debts and immorality, set up by them in their written statement. A perusal of the documents Exs. 1 and 2, on the other hand, makes it plain that a major portion of the amounts borrowed was paid towards the liquidation of the previous debts. We, therefore, do not think that the approach of the trial court is wrong in this respect.

We may now switch over to the objection raised by learned counsel for the appellants regarding the framing of issue No. 5. Issue No. 5 is in the following terms: - "was the mortgage property ancestral property and the mortgage was not made for any legal necessity or for any benefit to the estate and therefore, Kailash Kanwar and Shri Narayan are not bound by it (defendant)," This issue ought to have been splitted into two parts: namely, (1) was the mortgaged property an ancestral one? (2) were the mortgages entered into for legal necessity ? The burden of the first part ought to have been thrown upon the defendants; whereas the onus of proof of the second part ought to have been put on the plaintiff. The plaintiff has produced relevant evidence. The appellants were afforded an opportunity to lead evidence but they did not avail themselves of it. It is thus clear that both the parties were given opportunity to lead their evidence. The case, therefore, fell within the observations of Sir Lionel Leach in Manaka vs. Madharao (7), and the court can record the question of onus of proof as being of no importance. In Narayan Bhagwantrao Gosavi Balajiwala vs. Gopal Vinayak Gosavi (8), His Lordship M. Hidayatullah J. , as he then was, speaking for the court, observed ; "where, however, parties have joined issue and have led evidence and conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. " When evidence has been adduced on both sides or an opportunity had been given to the litigants to produce evidence, the burben of proof ceases to have any practical importance. The question of onus probandi is of importance at the early stage of the case. Where, however, contesting parties have led evidence, or, at any rate, have been given ample opportunity to lead it on the question in issue abstract considerations of onus are out of place and truth or otherwise of the matter in issue must be adjudged on the evidence available on the record. The suit was filed as far back as November 15, 1956. Issues were framed on February 3, 1958. Since then no objection was raised in regard to the reframing of issue No. 5 and the shifting of burden of proof on the plaintiff. It would, therefore, hardly be proper to amend the issue at this belated stage and remand the case for re-trial, more specially when the appellants pointedly declined to produce any evidence. We do not, therefore, think it proper to amend issue No. 5 and refer the same for trial to the court below.

(3.)THE last point pertaining to the ancestral nature of the property and legal necessity deserves some attention. In the written statement filed by the appellants it is, no doubt, given that the suit premises are the ancestral property of the answering defendants and that the deceased Kishan Gopal had no authority to mortgage the same or to take loan on its security without any legal necessity. In the mortgage deed, dated 15-1-1945, it is given by the executant Kishan Gopal that he is the owner and occupant of the mortgaged property. It is further mentioned in the document that the executant and his brother Mishrilal had jointly owned the property and that it had been partitioned between them. In the notice, Ex. 30, dated June 8, 1953, given by the plaintiff to Shri Narayana, it is stated that the deceased Kishan Gopal mortgaged the property of his share, situate in Madanganj, in favour of the Chamber of Commerce. Again, in another notice, dated February 25, 1956, Ex. 33, sent to Shri Narayan, it is referred that the deceased Kishan Gopal mortgaged the property of his share. From the recital of these documents, more specially from the narration of the mortgage-deed Ex. 1 it is manifest that Kishan Gopal was the sole owner and occupant of the property. As has been observed by their Lordships of the Privy Council in Banga Chandra Dhur Biswas vs. Jagat Kishore Acharjya Chowdhuri (9), a recital consistent with the possibility and circumstances of the case cannot be lightly set aside. THE recitals are clear evidence of the representation to the alienee. Thus, in the absence of any evidence led by the defendants, the court can on the basis of recitals reach the conclusion that the property in question was the individual property of the deceased Kishan Gopal. THEre is nothing on the record to show that it was a joint Hindu family property or an ancestral property.
The general proposition undoubtedly is that a Hindu family is joint and continues to be joint, unless the contrary is proved. Where one of the co-parceners separates himself from the other members of the joint family and has his share in the joint property, partitioned for him, there is no presumption that the rest of the co-parceners continued to be joint : vide Bhagwati Prasad Sah vs. Dulhin Rameshwari Kuer (10 ). In this case, assuming that the property was once owned by the two brothers, Kishan Gopal and Mishrilal, that does not suggest that the property which Kishan Gopal acquired as a result of the partition automatically became a joint Hindu family property. There is no presumption that a family, because it is joint, possesses joint property. When in a suit a party claims that any particular item of the property or when in a suit on a mortgage a party contends that the property mortgaged is a joint family property, the burden of proving that it is so, rests on the party asserting it: vide Appalaswami vs. Surya-narayanamurti (11 ). In this regard, the appellants did not produce any evidence whatsoever. Learned counsel for the appellants relied on the statement of Poosa Lal, P. W. 3, who has said that Mishrilal got the building situated in Madanganj constructed with ancestral money and that Kishan Gopal earned nothing. It is to be seen whether this statement is engouh to convince the court that the property in question consisted of joint Hindu family property. To render the property joint, one has to establish that the family was possessed of some property with income of which the property could have been acquired or from which presumption could have been drawn that all the property possessed by the family is joint family property or that it was purchased by joint family funds. No such presumption would arise, if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. In other words, a party alleging that the property held by an individual member of a joint Hindu family is joint Hindu family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. It. is only after that is shown that the onus shifts to the party, alleging self acquisition, to affirmatively make out that the property was acquired without any aid from the family estate. In this case, no such evidence has been adduced that the property in question was a joint Hindu family property. On the other hand, it is clear from the documentary evidence, referred to above, that this property was solely owned and possessed by Kishan Gopal.

We may also refer here that it is given in the mortgage-deed Ex. 29 executed by Kishan Gopal in favour of Manakchand for Rs. 11,000/- that there was a partition deed dated Magsar Sudi 5, Smt. year 1998, executed between Kishan Gopal and Mishrilal. A copy of that deed must be in possession of the appellants, but they have failed to produce it. If there is a relevant document and that is not produced by the party concerned, an adverse inference has to be drawn against that party: vide A. Raghavamma vs. A. Chenchamma (12 ). Had the appellants produced this document, it would have probably thrown considerable light on the question whether the property was ancestral or self-acquired. Since the appellants did not produce this important document, adverse inference under sec. 114, illustration (g) can be drawn against them.

Where the Karta of a joint Hindu family mortgages joint Hindu family property, the mortgagee is bound to inquire into legal necessity and the burden lies on the mortgagee to prove this fact. Here the property mortgaged was the sole property of Kishan Gopal. The question of determining legal necessity would arise only when the property was a joint Hindu family property. It has already been adjudged that the property mortgaged was the sole property of Kishan Gopal. Smt. Kailash Kan-war and Shri Shri Narayan are bound by the mortgages as they received the property from the mortgagor Kishan Gopal as his heirs. Defendants Nos. 1 and 2 would have been personally liable if the suit was filed within 6 years in accordance with Art. 129 of the old Limitation Act. But that was not done. The present suit was filed within 12 years as per Art. 132 of the said Act. The trial court, therefore, has rightly held that defendants Nos. 1 and 2 are not personally liable but the mortgaged property alone is liable for recovery of the decretal amount.

We may, however, state here that the trial court has allowed future interest at the rate of 6% per annum after the expiry of six months from the date of the decree. The stipulated rate of interest is annas seven per cent per mensem. In the circumstances of the case, we are of opinion that the rate of future interest should not exceed the stipulated rate of interest. We, therefore, allow future interest at the rate of annas seven per cent per mensem on the principal amount of Rs. 27,000/- with effect from the expiry of six months from the date of the decree of the trial court.

In the result, we partially accept this appeal with proportionate costs and reduce the rate of interest as indicated in the preceding paragraph of this judgment. With this modification, the judgment and the decree of the court below are maintained. .


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