RAM JAR SINGH Vs. BHAGALU SINGH

JUDGEMENT

(1.) IN my opinion, the decision of the Munsif is this case was correct and should not have been disturbed. The suit is based upon a mortgage deed, executed by Mahadeo Singh, father of the defendants-respondents, in favour of the plaintiff- appellant. The consideration for the mortgage is stated in the deed to be a sum of Rs. 115 due on a previous mortgage executed by Mahadeo Singh and his cousins, Bahadur Singh and Sahadeo Singh. According to the decision in Chandra Deosing v. Mata Prasad 31 A. 176 : 6 A.L.J. 263 : 1 INd. Cas. 479 the appellant had to prove that the mortgage in suit was made either for family necessity or to secure payment of an antecedent debt. The appellant produced Bahadur Singh (already mentioned) who said that the deed of August the 9th, 1892, was executed on the occasion of a partition between two branches of the family and that the deed in suit was executed on the occasion of a later partition between the members of one of those branches of the family. He says that he and his brother, Sahadeo Singh, were liable to Ram Jar Singh under the deed of 1892, and that on the occasion of the later partition, Mahadeo Singh undertook to pay the amount due to Ram Jar Singh. The Munsif believed the evidence of Bahadur Singh and it is perfectly clear that if that evidence is true and is admissible, the deed in suit was executed in respect of an antecedent debt. On appeal, the District Judge did not say that be disbelieved the evidence of Bahadur Singh, but he said that the whole of it was inadmissible on account of the non-production of the deed of August 9th, 1892, and of the deed by which the later partition was effected. It appears to me that Bahadur Singh did not give the contents of documents. He merely stated the circumstances in which documents were executed. It may possibly be wrong to admit his statement that the execution of the earlier or the later mortgage-deed was one of the terms of the partition. But I can see no reason why he should not prove that the deed in suit was executed on a certain occasion and in consideration of a sum for which Mahadeo Singh and two others were already liable. The learned Judge says that the recitals in the mortgage in suit are not evidence against the defendants. It may be that they are not evidence of the truth of the facts stated in them. But they are surely admissible to rebut the suggestion that Bahadur Singh s evidence has been fabricated for the purpose of this suit. The District Judge does not say that he disbelieves the evidence of Bahadur Singh. The Munsif said that he believed it. I might remand the case to the District Judge for a fresh finding. But it is open to me under the present Code to decide the question myself. I have no hesitation in accepting the evidence of Bahadur Singh, and I find that the mortgage in suit was executed in consideration of an antecedent debt. I allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts.