NARSI KALYANDAS PATEL Vs. PARSHOTTAM NATHABHAI PATEL

JUDGEMENT

(1.) Both the lower Courts have held that by certain evidence the plaintiff has established that there was a mortgage of the plaint property in 1866 by the ancestors of the plaintiff's vendor to the uncle of the defendant for Rs. 375. The evidence is circumstantial, viz., recitals in deeds referring to the property as having been so mortgaged, and extracts from account books which mention the fact of the mortgage, as well as a transaction by which a half share in the mortgage was transferred to the defendant's father for Rs. 187-8 0. Both the lower Courts have held this evidence to be very satisfactory, but a complication arises because there is no document in evidence creating 1928 this mortgage, nor any secondary evidence of such a document of the kind mentioned in Section 63 of the Indian Evidence Act. The plaint does not definitely state that there was any written mortgage, but there are assertions of the plaintiff or his pleader, which are referred to in paragraph 7 of the trial Court's judgment, that there was a written mortgage. The plaintiff also called two witnesses who have stated that the defendant showed them the mortgage deed, which was written on a page in a book of the defendant. The Subordinate Judge, however, disbelieved this evidence, and held that the mortgage was established not by any evidence of that kind but by the other evidence that 1 have mentioned. The Assistant Judge in appeal held that it was only a conjecture that there was an instrument of mortgage recorded in defendant's account-book, that the defendant denied it, and that the Court did not feel satisfied as to the truth of the averment.

(2.) This point is of considerable importance, because if there did exist an unregistered document of the kind alleged, then, the question arises, whether any other evidence such as that relied upon by the two lower Courts is admissible for the purpose of establishing the alleged mortgage, having regard to the provisions of Section 49 of the Indian Registration Act and Section 91 of the Indian Evidence Act. This question has been very carefully discussed in the judgments of both the lower Courts, and is also raised by the appeal, which has been very fully argued before us by Mr. Amin for the appellant. The trial Judge held that if such a document existed and was unregistered, then under Section 13 of Act XVI of 1864, which was the Indian Registration Act in force at the date of the alleged mortgage, the document was one which required compulsory registration and would be inadmissible in evidence. That is a statement which has not been disputed before us, On the other hand, he held, following the view taken by a majority of the Court in Appanna V/s. Venkata-sami (1923) I.L.R. 47 Mad. 203 that the circumstantial evidence of the alleged mortgage was admissible to show the character of the defendant's ; possession, and that proving the mortgage in this way could not be regarded as evading the provisions of Section 49 of the Indian Registration Act. Even evidence as to the amount of the mortgage would be admissible in order to prove the extent or the quantum of interest which the defendant had in the plaint property. The Assistant Judge in appeal took the Fame view. Mr. Amin contends that the judgment of Spencer J. in Appanna Venkatasami should be preferred to the judgment of the other two judges in that case, and has taken us through a considerable number of authorities. Mr. Thakor in reply has first of all contended that it is unnecessary to go into the question whether the evidence is admissible or not, because it is not in fact established the at there ever was an unregistered document, the existence of which forms the basis of the contention that the evidence relied upon is absolutely inadmissible. Secondly, he contends that the view taken by the two lower Courts is correct.

(3.) Dealing with the first point, there would, in my opinion, be no difficulty in disposing of it but for the fact that the plaintiff undoubtedly did allege the existence of a written document in a book of the defendant and did adduce evidence to substantiate that assertion. Apart from that, there certainly is no evidence to show the existence of such a document, and the alleged mortgage was entered into at a time when a, document was not essential to create a mortgage; as has been pointed out by the Assistant Judge, the mortgage could have been effected by oral agreement and transfer of possession to the mortgagee. Therefore the finding of the lower appellate Court that the mortgage is not proved to have been in writing would, apart from the plaintiff's assertion to the contrary that I have mentioned, be a sufficient ground for this Court holding that neither Section 91 of the Indian Evidence Act nor Section 49 of the Indian Registration Act would apply, because the terms of the contract had not been reduced to the form of a document, and secondly, because, at the time of the alleged mortgage an oral agreement with transfer of possession sufficed to create a mortgage, so that it would not fall under the words in Section 91 about cases where the matter is required by law to be reduced to the form of a document. Section 49 of the Indian Registration Act would also not apply, because there was in fact no document tendered in evidence which ought to have been, but was not in fact, registered; and it would be perfectly open to the plaintiff to prove the existence of the mortgage aliunde, It has, no doubt, been held, that a plaintiff suing to recover possession of land by redemption of an alleged mortgage must make a specific averment of the particular mortgage he alleges. It does not suffice to say that there was a mortgage, but there must be some description of the terms of the mortgage sufficient to identify it and enable the defendant to meet the plaintiff's case. That, for instance, has been laid down by West J. in Ramchandra dpaji V/s. Balaji Bhaurav (1884) I.L.R. 9 Bom. 137 following Sevvaji Vijaya Raghunadha Valoji Kristnan Gopalar V/s. Chinna Nayana Chetti (1864) 10 M.I.A. 151. On the other hand, if the plaintiff gives sufficient details of the alleged mortgage, as has been done in the present case, this Court has held that slight prima facie proof that a mortgage has been originally made would serve to shift the entire burden of proof on the defendant in cases of this character, namely, an alleged mortgage which the plaintiff sues to redeem. This has been laid down in Balaji Narji V/s. Babu Devli (1868) 5 B.H.C.R. (A.C.J.) 159; but, as pointed out in Bala V/s. Bhiva (1902) I.L.R. 27 Bom. 271, s.c. Bom. L.R. 85 (p. 278), "this does not mean that the moment the plaintiff adduces any slight evidence, the burden is shifted. As with all evidence, the Court must appreciate it, and the burden is shifted only when the Court regards the evidence as trustworthy where it is a question of its trustworthiness," Those conditions are satisfied in the present case, both the Courts having found that the evidence relied upon was very satisfactory. And, therefore, apart from this assertion about there being a written document, the decree allowing the plaintiff to redeem is one that could not be questioned in second appeal.