DURGA SHANKER Vs. LALA GANGA SAHAI

JUDGEMENT

(1.) This is an appeal by the defendants 1 party against a decree of redemption passed by the lower appellate Court. A large number of points, have been argued. The mortgage in question was dated 31 July 1869 and was a mortgage of a shop executed by one Magni Ram to Bohj Ram and Chhote Lal for Rs. 1,200 for a period of five years with the condition that the profits-were to be taken in lieu of interest. The suit for redemption was brought by one of the heirs of Magni Ram, and other heirs were joined as defendants 2nd party. The suit was brought in 1929. The defendants-appellants resisted the suit on the ground that various further sums were due to them in place of the mortgage money, Rs. 1,200, and the appeal is mostly concerned with such claims. One of these claims is in regard to three documents two of which are simple bonds for Rs. 99 executed on 20 July 1870 by the predecessors of the plaintiff and the other is a promissory note for Rs. 25 of 1870. These three sums have been disallowed by the lower appellate Court. We note in the first place that the appellants have neglected to get these documents translated and therefore they are not strictly speaking entitled to argue in regard to the details contained in the documents. One of the simple bonds for Rs. 99 was in regard to the amount expended by the mortgagees on a kharanja and the predecessor of the plaintiff agreed to pay this amount. This kharanja does not come under the heading of repairs, and it constitutes an improvement. There was no provision in the deed that the amount should be added to the mortgage money. In our opinion this document cannot be tacked on to the mortgage deed in suit and there was a mere personal covenant. The second document was a deed for Rs. 99 and the document states that the mortgagor borrowed this sum as a loan from the mortgagees for making certain repairs. This does not prove in our opinion that the money was spent on repairs. This document also does not create any charge on the mortgaged property and it cannot be tacked on to the mortgage in suit. The third document was a mere promissory note and although there are word in it stating that payment will be made when the shop is released from the mortgage or previously if possible there is no charge expressed on the property in suit. We consider that none of the three documents constitute any claim which can be enforced as a charge on the mortgaged property in this redemption suit. Another point argued by learned Counsel was about a sum of Rs. 25 which has been allowed to the plaintiff against the defendants on account of the defendants closing up a grain pit or khatti. The lower appellate Court held that the grain pit had been filled up by the defendants and that no permission for filling it up was shown. Under these circumstances we consider that the charge was correctly made against the defendants.

(2.) Further claims were made in regard to a sum of Rs. 165-9-3 on which the defendants claimed a very large sum as interest. This amount was stated to have been expended in repairs. In proof of the expenditure of this amount in repairs the defendants tendered only certain very old account books. No doubt Section 90, Evidence Act, states that in the case of documents over 30 years old there is a presumption that they are written by persons by whom they purported to have been written. Learned Counsel desired to rely on Section 32 (2), Evidence Act, but that can only be applied in case it is proved that the person who wrote the document in question is dead or otherwise not available as a witness and there is no evidence to that effect. Therefore Section 32 will not apply. Section 34 states that account books alone will not be sufficient to charge anybody with liability and in the present case account books alone are tendered for this purpose. We consider therefore that the lower appellate Court was correct in refusing to allow this claim for Rs. 165-9-3 for repairs. These were the points argued on appeal. We dismiss this appeal with costs including fees of the counsel on the higher scale allowed in this Court.

(3.) The cross-objection related partly to a takina, that is, a payment of two annas per mensem as rent to the zamindar who was the owner of the site on which the shop stood. The mortgage deed was silent as to the payment of this amount and the mortgage deed stated that interest on the mortgage money and the profits from the property mortgaged would be equal. Accordingly this was a case where Section 77, T.P. Act, applied and that section states that nothing in Section 76(h), would apply to such a case. Learned Counsel for appellants wished to apply Section 76(h), for the present case and claimed the arrears of rent alleged to have been paid by the defendants. No other section of the Transfer of Property Act was shown under which the defendants could claim takina in the present case. Learned Counsel argued that he could get his claim under Section 72, Clauses (a) and (b). But in our opinion this section has no bearing on the points in question. We consider therefore that the claim for takina should have been disallowed in toto and accordingly we allow the claim in the cross-objection as regards the amount of takina and interest in toto.