SHIVALINGAMMA Vs. T RAMAIAH

JUDGEMENT

(1.) THE appeal is filed against the judgment and decree passed In R. A. No. 39/1997 on the file of Prl. Civil Judge (Sr. Dn.) and CJM Mandya. The appellant is the plaintiff filed the suit for recovery of mortgage loan of Rs. 20,000/- with costs and interest from the defendant. The mortgage was executed by the husband of the defendant. The plaintiff contends that mortgage amount is not paid despite issuance of the notice. Hence filed the suit. The defendants in their written statement admits the mortgage and contends that subsequent to the issuance of notice, the mortgage amount has been repaid and original mortgage deed has been returned as a token of discharge. The defendant has produced the original mortgage deed in support of her contention.

(2.) THE trial Court found that there is discrepancy in the evidence of defendant regarding the discharge of mortgage loan and obtaining the original mortgage as a token of discharge. Accordingly, disbelieved the theory of discharge put forth by the defendant and decreed the suit. The appellate court reversed the finding on the basis of the presumption available to the defendant under Section 114 (i) of the Indian Evidence act and dismissed the suit of the plaintiff. Hence, this appeal.

(3.) NO doubt, when the defendant admits the mortgage, the burden is on the defendant to prove the discharge. However, by production of the original of mortgage deed, the defendant is entitled to invoke the presumption under Section 114 (i) of the Indian Evidence Act to show that the document was returned by the mortgagee in token of discharge. If the original is produced by the defendant the plaintiff has to rebut the presumption raised in favour of the defendant. In the instant case, the plaintiff has failed to rebut the presumption that the document was lost during the shifting of the residence and that the explanation that defendants got it by way of theft is not proved. One more strong circumstance that militate against the case of the plaintiff is that he came to know about the missing of the original mortgage deed a month after the shifting of the house i. e. somewhere in the year 1994. No action is taken by lodging the complaint. Even in the legal notice issued to the defendant there is no mention that the original of the mortgage deed is lost. Only for the first time in the plaint, it is contended that the original is lost at the time of shifting the residence. It is only in the course of evidence after production of original by the defendant, the plaintiff contends that the defendant might have stolen the document at the time of shifting of the house. The material whatever placed by the plaintiff to rebut the presumption raised in favour of the defendant under Section 114 (i) is not satisfactory in the eye of law. In that view of the matter, the finding of the Appellate Court that by pro-duction of the original of the mortgage deed, the defendant has proved the theory of discharge is sound and proper.