- (1.) THIS is an appeal by the plaintiffs against the judgment and decree passed by the learned Civil Judge of Jodhpur, dated 3rd May, 1951. The defendants have filed cross-objections.
(2.) THE appellant Bastiram and his two sons sued Sewaram and Kesrimal respondents on the allegations that Sewaram on behalf of himself and his brother Kesrimal executed a mortgage of his immovable property mentioned in schedule 'a' on Kartik Sudi 1, Svt. 1986 against a loan of Rs. 10,000, -. Of these, Rs. 4,000/- did not carry interest as the rent of the property was stipulated to be equal to the interest on this amount. THE remaining sum of Rs. 6 000/- was to carry interest at six per cent per annum and was a further incumbrance on the same property. It was alleged that on Chet Sudi 1, Svt. 1990, the said defendants paid Rs. 1,620/- towards interest, Rs. 1,080/- towards rent of the mortgaged property, and Rs. 2,000/- towards the sum of Rs. 6,000/- which carried interest, leaving a balance of Rs. 4,000/- which carried no interest,and Rs. 3,800/- carrying interest. THE plaintiffs added Rs. 2,200/- by way of interest from Chet Sudi 1, Svt. 1990 to Kartik Sudi 1, Svt. 2000. THEy claimed in all Rs. 10,000/- from the said defendants. Karnidan, a brother of the plaintiff Basti Ram, was made defendant No. 3 on the allegations that he was a simpleton and did not understand what was to his own benefit or otherwise. THE suit was instituted on Kartik Sudi 1-2, Svt. 2000 corresponding to 30th October, 1943. ; Sewaram and Kesrimal by their written statement dated 10th May 1944 pleaded that the mortgage had been executed not in favour of Bastiram alone but in favour of Bastiram and his brother Karnidan, and that on Chet Vadi 11, Svt. 1990, a sum of Rs. 5,600/- only had remained due against them which they had paid in full to Karnidan on Chet Vadi 2, Svt. 1996 (25th March 1940) under instructions of Bastiram. and had thereby discharged the debt. They also pleaded that they had not received Rs. 230/- from the total amount of Rs. 10,000/- secured under the mortgage, that they had repaid Rs. 5,909/8/- till Chet Vadi 11, Svt. 1990 and that on 19th April 1948 they had tendered a sum of Rs. 1600/- to the plaintiff who refused to receive the same and therefore, he was not entitled to this amount from this date. It was further alleged that on Chet Vadi 11, svt. 1990, there had been an agreement between the plaintiff and Karnidan on the one hand and the debtors on the other whereby interest on the debt had been reduced by various stages to 3% per annum. The defendants averred that all payments made by them were towards the mortgage amount and that they had not made any payment towards rent as alleged by the plaintiffs, as none was due. The plaintiffs had stated in their plaint that the mortgage-deed had been lost while the defendants said that the plaintiffs were fraudulently keeping back the document as on the back thereof not only the variation in the rate of interest as agreed upon was noted but the payments as alleged by them were also entered on it. Karnidan by his written statement dated 10th April 1944 pleaded that he was also a member of the joint family with the plaintiffs and that an account had been taken on Chet Vadi 1, Svt. 1990 by which only Rs. 5,600/- remained due against the debtors and that on Chet Vadi 2, Svt. 1996 he, jointly with plaintiff No. 1, had received the entire amount for which a receipt had been passed in favour of the debtors. On the pleadings, eleven issues were raised and the learned Civil Judge of Jodhpur, before whom the case finally came for decision, held on evidence that the plaintiff's version that he had lost the mortgage-deed was unreliable and that he had kept back the deed which raised an adverse inference against him, and that inference, coupled with the evidence, sufficiently proved that a settlement had been reached some time about Chet Vadi 11, Svt. 1990 by which the rate of interest had been reduced and only an amount of Rs. 5,600/- remained due on that date and the fact was endorsed on the deed of mortgage. He held that Karnidan was a co-mortgagee and the discharge of the outstanding sum of Rs. 5,600/-given by Karnidan by Ex. D-2 was valid and binding on Bastiram on the view that a co-mortgagee was entitled to give a full discharge. In regard to the payments prior to Chet Vadi 11, Svt. 1990, the plaintiffs had admitted that only a sum of Rs. 4,900/-had been paid, while the defendants had alleged the amount of repayments to be Rs. 5,909/8/ -. He held that the defendants had failed to prove two of the items of repayments, viz. , Rs. 264/8 and 32/3/3. He accordingly gave a decree to the plaintiffs for Rs. 296/11/3 with interest at 6% per annum till satisfaction of the decree. He directed the parties to bear costs in proportion to their success. As stated above, the plaintiffs have come in appeal and the defendants debtors have filed cross-objections. It was contended by learned counsel for the appellants that the lower court has erred in holding a settlement between the creditors and the debtors on Chet Vadi 11, Svt. 1990 by which a variation in the rate of interest was said to have been effected and the amount due was agreed to be Rs. 5,600/- and that such settlement was entered on the back of the mortgage-deed. It was argued that the lower court should have accepted the plaintiff's version that the mortgage-deed had been lost and in any case the presumption drawn from its non-production could not extend to the acceptance of the case set up by the defendants. Learned counsel relied on a notice published at the instance of the plaintiff in the Marwar Gazette of July 1934 in which the plaintiff had notified the loss of the deed and announced a reward to any one who might find it out, and it was urged that this notice published about nine years before the institution of the suit established the bona fides of the plaintiff and the non-production of the deed could not give rise to an adverse inference against the plaintiff. Learned counsel for the debtors-respondents argued that the settlement arrived at on Chet Vadi 11, Svt. 1990 (which fell some time in March or April 1934) between the debtors and the creditors purported to reduce the rate of interest and settle the account leaving a balance of Rs. 5,600/-, and this not being advantageous to the plaintiff as compared to the original agreement of the mortgage, he played a ruse and published the notification with a view to get rid of the agreement which had been endorsed on the deed of mortgage. As to whether the settlement as alleged by the respondents had been arrived at will be considered hereafter. While the notification does indicate that the plaintiff had set up the loss as far back as July, 1934, that by itself was, however, an admission of the plaintiff himself, and the evidence which has been led in proof of the loss is to be considered. The evidence on this point consists of the plaintiff Bastiram himself and in cross-examination he stated that it was lying in his house and it got lost. He could not state the circumstances under which it had been lost. He admitted that lie did not make any report in the police and did not intimate the loss to the debtors and that no other document was lost along with it. The statement of the plaintiff is very cryptic and in our opinion the finding of the lower court that Bastiram plaintiff had failed to prove the loss of the deed was correct. It may be observed that the evidence in rebuttal led by the defendants, that Ratan Lal D. W. 5 saw the document some time in July 1948, a couple of months before that witness came to court, at the shop of the plaintiff in the hands of Deo Kishen son of Bastiram, is not worth the paper on which his statement was recorded, as, if the plaintiff could be credited with so great an astuteness as to proclaim its loss nine years before instituting the suit, he would not be so clumsy as to: leave the document openly in his shop to be read by every one who happened to visit the shop. Learned counsel for the appellants contended that even if the loss of the document be considered not to have been established, the evidence on record led by the defendants did not establish that any reduction of the rate of interest had been agreed upon or that on taking up of accounts a sum of Rs. 5,600/- only remained to be due. It was contended that reduction of the rate of interest affecting the incumbrance on the property and any document which purported to affect any interest in immovable property of the value of over Rs. 100/-requires to be registered under sec. 17 of the Registration Act. As the variation in the rate of interest would result in reducing the incumbrance on the property to the tune of over Rs. 100/-, the endorsement on the deed of mortgage was inadmissible in evidence and the mortgage even if proved would be invalid on account of non-registration. It was pointed out by learned counsel for the respondents that the requirement of registration in the case of a document of this nature came into force with the enforcement of the Marwar Registration Act, 1934, on the 27th of October, 1934, and prior to that the old law of registration in Marwar did not make it compulsory for such a document to be registered. The contention of learned counsel for the respondents appears to be correct. The law applicable on the date of the alleged agreement was the Marwar Registration Act of 1899 and the description of the documents required to be registered is given in sec. 7 of that Act, and a document of the nature under consideration in this case is not included in that list.
(3.) THE oral evidence of the agreement as to the reduction of the rate of interest and settlement of accounts and the endorsement on the deed of mortgage consists of the statement of Kesarimal defendant besides two other witnesses, Ranulal D. W. 1, and Ramdayal D. W. 2, Ranulal stated that he had gone to Mathania in the marriage of Ramratan in Svt. 1990 or 1991 and the accounting between the parties took place on the next day of the marriage. Entries were alleged to have been made in the account-books of the plaintiffs and some items were credited on the mortgage-deed leaving a balance of Rs. 5,600/ -. In cross-examination, however, he stated that the agreement as to rate of interest having been settled at 3% per annum was not reduced to writing. Ram Dayal is alleged to have accompanied Ranulal in the same marriage and he put the date of marriage to be Chet Vadi 8, Svt. 1990. According to Ranulal, therefore, the alleged settlement took place on Chet Vadi 9, Svt. 1990 while the case of the defendants is that it took place on Chet Vadi 11. Ram Dayal stated that the settlement was entered in the account-books of the plaintiffs in the pen of Kesarimal and the balance of Rs. 5,600/- was struck after calculation of interest at 3% per annum. He also stated that it was Kesrimal who made the endorsement on the deed of mortgage in respect of the settlement. Ram Dayal puts the date of settlement as Chet Vadi 11, Svt. 1990. Both these witnesses are, however, closely related to the defendants, Ranulal being sister's son of the defendants and Ramdayal son-in-law of Sewaram. As regards Kesrimal, he stated in his examination-in-chief that after the rate of interest had been reduced to 3% per annum, account was made up and the entries were made by him in the account-books of Bastiram and on the mortgage-deed. He admitted in cross-examination that he made a copy of it and also entered the same in his own account-books. THE defendant did not produce his own account-books nor the copy which he had taken from the account-books of the plaintiffs and, therefore, a most valuable piece of evidence which could be produced by the defendant has not been placed before the Court. The defendant's case in respect of various other items alleged to have been paid was sought to be made entirely on the entries in the account-books of the plaintiffs and at no stage was it suggested that the plaintiffs had made any interpolations in those Bahis. The Bahis produced by the Plaintiffs do not contain the settlement of accounts as propounded by the defendant, and therefore, while there was an initial inference against the plaintiffs by non-production of the original mortgage-deed, the production of the account-books and the reliance placed upon them by the defendant rebuts that inference when these account-books do not contain that settlement which according to the defendant was entered both on the mortgage-deed and in the account-books. The failure of the defendant to produce his own account-books also supports this conclusion, for, according to the defendant, he had copied out that settlement in his own account-books also. Learned counsel for the respondents tried to explain the non-production of the account-books by the defendant by stating that they had not been kept regularly in the course of business and, therefore, the defendant did not consider them of any importance. That may be so, but the point at issue was whether a settlement had been arrived at on a particular date and if, as the defendant stated, he had made out a copy from the account-books of the plaintiffs and entered the same in his own account-books, production of that particular entry would have supported the defendants, and in consequence of the non-production, the only support available to the defendant has been withheld from the Court. In our opinion, the alleged reduction of the rate of interest and the settlement of account so as to leave a balance of Rs. 5,600/- do not stand proved and the lower court's finding on these points is not correct. The next point argued by learned counsel for the appellants is that no amount beyond the sum of Rs. 4,900/- admitted to have been received from the defendants up to Chet Sudi 1, Svt. 1990 was paid by the defendants. The defendants on the other hand alleged that they had paid Rs. 5,909/8 up to Chet Vadi 11, Svt. 1990. It may be mentioned that Chet Vadi 11 Svt. 1990 and Chet Sudi 1, Svt. 1990 fell in the same year as the Samwat year was changed some time in Srawan and not in Chet Sudi as is usual according to Vikram calender. The defendants did not state in their written statement how and in what manner the excess amount of Rs. 1,009/8 was paid to the plaintiffs. They did not also produce their account-books. The details are to be found in the statement of Kesrimal, as under: Rs. 230/- not received from the plaintiffs from the total loan of mortgage of Rs. 10,000/ -. Rs. 240/- paid on Kartik Sudi 3, Svt. 1986 not credited in this account but in the previous account and that only to the extent of Rs. 238/ -. Rs. 245/- credited less by plaintiff while crediting the price of the bales of yarn. Rs. 264/8 paid in cash on Chet Vadi 11 Svt. 1990 but not credited. Rs. 181/8 for price of Gawar delivered to the plaintiff in Svt. 1988. Rs, 20/- on account of short credit in respect of the item of Rs. 320/- paid but only Rs. 300/- credited. The detail given above comes to Rs. 951/- as regards repayment and credit is claimed for Rs. 230/- on account of non-advance of this amount at the time of the original transaction. The lower court has accepted all the items alleged to have been paid by the defendants except the sum of Rs. 264/8/ -. Another item alleged by the defendants to have been spent by them to the account of the plaintiffs was Rs. 32/3/3 which was also not believed by the court below and, therefore, a decree for Rs. 296/11/3 was passed against the defendants. As regards the item of Rs. 32/3/3, this was not a payment alleged and, therefore, need not have been considered by the lower court as an item to be accounted for in respect of the loan or its repayment. Learned counsel for the appellants took us through the evidence in order to controvert the finding that the items alleged to have been paid to the plaintiffs had been so paid. We shall first deal with the items of repayments: - (a) Rs. 240/-: In the cash book of the plaintiff an item of Rs. 238/- is credited but adjustment for this amount has been given in the ledger towards accounts prior to the transaction of the mortgage. The mortgage is dated Kartik Sudi 1 Svt. 1986 and, therefore, this amount should have been adjusted towards the mortgage amount. The finding of the lower court is correct. (b) Rs. 245/- : The plaintiff gave a credit of Rs. 3,867/8- to the defendants on Asadh Vadi 1, Svt. 1990 as price of 35 bales of yarn. The rate is not mentioned but it is admitted by the plaintiff that this credit was given at the rate of Rs. 2/12/- per packet. The case for the plaintiff is that this rate was settled at the time of delivery of the bales and in support of this plea, the plaintiff Bastiram besides himself has examined P. W. 3 Mohanlal. His statement is that this rate was settled in Jeth or Asadh of Svt. 1990. Bastiram in his statement of 22nd November 1950, however, admitted in cross-examination that these bales were given to him on Chet Vadi 11, Svt, 1990 and it had been agreed that he would give credit of the price of the bales at the. rate prevalent in the market on that date. The defendant has proved by the evidence of Gulab-chand D. W. 81 that on Chet Vadi 11, Svt. 1990 the rate of the particular yarn delivered to the plaintiff was Rs. 2/15/- per packet. It is agreed by learned counsel for the parties that the difference between the price calculated at Rs. 2/15/- per packet and Rs. 2/12/- per packet would amount to Rs. 245/ -. The defendant is entitled to be credited with this amount. (c) Rs. 264/8/- : The evidence as regards this payment consists of the statement of the defendant Kesrimal. He has not produced his account-books nor any receipt for the sum paid. The lower court's finding that the defendant has failed to prove repayment of this amount is correct. (d) Rs. 181/8/- : The defendant's case is that he had asked Ramjeewan Asaram to give to the plaintiff some Gawar and some bales of yarn of the total value of Rs. 300/-and the plaintiff by a receipt Ex-D-1 agreed to give credit to the defendant for this amount along with two other items of Rs. 200/- and Rs. 500/- but that as a matter of fact the plaintiff only gave credit for Rs. 120/- besides the other two items. The plaintiff's explanation is that he had given credit for Rs. 182/12/9 in respect of this very item in the account of 'the defendant and relied on entry 'b' in Ex. P-3. That entry, however, relates to the Gawar deposited with the plaintiff by Daga Nanu Ram and not Ramjeewan Asaram. Again in Ex. D-l it is mentioned that the amount of Rs. 300/- which had previously been received from Ramjeewan Asaram will now be debited to him after giving credit to the defendant. No corresponding debit entry of Rs. 180/- to the account of Ramjeewan Asaram has been produced which shows that the plaintiff failed to take into account the sum of Rs. 180/- out of Rs. 300/- agreed to be adjusted by defendant. It also shows that the credit of Rs. 182/12/9 given to the defendant must have been in respect of some other delivery of Gawar. The plaintiff in his statement admitted that he had received this Gawar from Nanu Ram Daga under instruction of Sewaram Kesrimal and to their account. It would, therefore, be held that the defendants are entitled to a reduction of their debt by Rs. 180/- (e) 20/- :the defendant Kesrimal has stated that he repaid Rs. 320/- through Ramjeewan Asaram and not Rs. 300/- only. This cannot be accepted as correct as the receipt Ex. D-l is for Rs. 300/- only. (f) Rs. 230/- alleged to have been received less by the defendants from the total mortgage amount: The mortgage-deed, a copy whereof is on record, mentions the advance of Rs. 10,000/- made up as follows : Old Outstandings : Rs 5000/- : Fresh advances of hundis : Rs. 5000/ -. The defendants showed by reference to the account-books of the plaintiff that the hundis given to them were only of Rs. 4751/- and a sum of Rs. 20/- was given to them in cash and on that basis claimed that they did not receive Rs 230/- from the total amount of consideration. It may be pointed out that while the mortgage-deed is dated Kartik Sudi 1, Svt. 1986, they did not aver at any time prior to the filing of the written statement that they did not receive the entire consideration. The defendants also did not produce their account-books to show what consideration they had received and the reliance is entirely on the account-books of the plaintiffs. The account Ex. P-l shows that up to the date of the mortgage, their account stood debited to the extent of Rs. 10,739/11/- excluding the hundis and Rs. 20/- paid to them later on. The deposits up to that date came to Rs. 5,018/11/-, thus, leaving a balance outstanding against the defendant at Rs. 5,721/11/- so that instead of the debt of Rs. 5,00/- mentioned as outstanding against the defendants in the mortgage-deed, the debt was really Rs. 5,721/11/ -. Thus, although, the hundis alleged to be given were of Rs. 4,751/7/- only, yet the total becomes more than Rs. 10,000/- and it could not be said that the defendants did not receive the full amount of consideration. The fact that hundis were only given to the extent of Rs. 4,751/- and not to the full extent mentioned in the deed of mortgage only changed the burden of proof of the passing of the full amount of consideration, and since the defendants placed their reliance on the account-books of the plaintiffs, those very books of account showed that the entire consideration had passed though in slightly different manner from that mentioned in the mortgage-deed. We therefore, hold that the defendants received the full amount of consideration of the mortgage-deed. ;