CHAUDHRI MOHAMMAD MEHDI HASAN KHAN; SRI MANDIR DAS Vs. SRI MANDIR DAS; CHAUDHRI MOHAMMAD MEHDI HASAN KHAN

JUDGEMENT

(1.) These are two consolidated appeals from a judgment and decree of the Judicial Commissioners of Oudh, dated the 31st of July 1907, and arise out of a suit brought by the plaintiff in the Court of the Subordinate Judge of Barabanki on the basis of a mortgage-bond executed by the defendant Choudhri Mehdi Hasan on the 22nd of December 1898, in favour of one Sukh Dei, since deceased. It appears that Sukh Dei carried on in her lifetime a money-lending business, and that the plaintiff has obtained a succession certificate under Act VII of 1889 to collect the debts due to her estate. The present action was launched on the 16th of February 1906 for the recovery of over Rs, 62,000, principal and interest, by the sale of the mortgaged premises. At the time of the institution of the suit the plaintiff produced only a copy of the document, alleging that the original had been lost. The defendant in his answer admitted its execution, but alleged that the debt was discharged. In support of his allegation he produced the original document containing the endorsement of payment by Sukh Dei and her general agent Bansidhar.

(2.) In view of the presumption embodied in Section 114 of the Indian Evidence Act (I of 1872) the Subordinate Judge was of opinion that the burden of establishing that the obligation created by the bond was still outstanding lay on the plaintiff. Their Lordships consider this to be the real meaning of the issue framed by him on the 6th of September 1906 after argument. (The plaintiff accepted the onus and obtained an adjournment for the production of evidence in rebuttal of the presumption rising from the possession of the document by the defendant, he hearing of the case was resumed in January 1907, and the plaintiff examined a number of witnesses to prove that the defendant had dishonestly obtained possession of the bond after Sukh Dei s death through the instrumentality of Bansidhar. He also attempted to establish that Sukh Dei was not at Barabanki on the date of the alleged payment. The defendant then went into evidence regarding the fact of payment and the delivery of the document to his servants on his behalf. The Subordinate Judge disbelieved the plaintiff s witnesses. With regard to the defendant s evidence, he observed as follows :- I would have hesitated in believing the testimony of defendant s witnesses also, had it not been corroborated by the facts that the bond bearing an endorsement of payment was filed from the defendant s custody and it was stated by plaintiff s own witnesses that the said endorsement was in the handwriting of Sukh Dei s general agent, Bansidhar.

(3.) In the result the Subordinate Judge dismissed the suit with costs.