APPAVU CHETTIAR Vs. NANJAPPA GOUNDAN

JUDGEMENT

(1.) The plaintiff is the appellant before us. The allegations on which he brought the suit are: (a) The plaintiff s assignor and the 10th defendant were coobligees under the mortgage bond (Exhibit I), dated 1895, executed by the 1st defendant, and each was entitled to one-half of the mortgage amount lent under it. (b) "The plaintiff understands that the 10th defendant has collected the amount due for her half share in the mortgage-deed." (c) As the original of the plaint-mentioned mortgage bond (Exhibit I) is with the 10th defendant and as she refuses to give it to the plaintiff, this suit is brought on a registration copy (Exhibit A).

(2.) The plaintiff sued for recovery of Rs. 750 (half of the principal sum mentioned in Exhibit I) with interest, Rs. 2,152-8-0 (about three times the principal), by sale of the mortgaged properties. The defendants Nos. 2 and 7 (subsequent alienees of the mortgaged properties) pleaded among other defences that, in April 1896 itself, their predecessor-in-title had paid up the whole mortgage amount to the 10th defendant and had got back the mortgage bond, Exhibit I, with the endorsement of full discharge signed by the 10th defendant. The 10th defendant supported the defendants Nos. 2 and 7 by her own written statement and further pleaded that the whole money under the mortgage belonged to her and hence she had received the whole amount long ago.

(3.) The 2nd and 5th issues settled in the case are: " Is the discharge pleaded by the defendants true and valid ?" and " Is the discharge given by the 10th defendant, a co-bligee, valid and binding as against the plaintiff and his assignor ?". At the hearing before the Subordinate Judge, the plaintiff relied upon the 10th defendant s admissions made in her written statement to the effect that she had received the whole of the mortgage amount and returned Exhibit I with the endorsement of payment made by her thereon, as evidence of the fact of such payment as against the plaintiff. The Subordinate Judge evidently accepted the 10th defendant s said admission as evidence against the plaintiff of the fact of such payment. The Subordinate Judge considered issues Nos. 2 and 5 together, issue No. 2 relating to the fact of discharge. He refers to the fact that the mortgage document, Exhibit I, " is produced by 2nd defendant and not by plaintiff" evidently to indicate that such production by the 2nd defendant is prima facie proof of discharge by payment. In Bhdg Hong Kong v. Ramanothan Chetty (1902) ILR 29 C. 334, their Lordships of the Privy Council say "the promissory note which was sued on and the security...are at present in the hands of defendants. Prima facie, therefore, the presumption is, where you find the instrument of a debt and the security for that debt in the hands of the debtor, that the debt has been discharged; but Mr. Haldane, for the respondents, while admitting that that presumption is a strong one, and that the burden of proof is upon him to rebut that presumption, contends that the evidence is such as to rebut the presumption." The same question was considered long ago in Chuni Kuar v. Udai Ram (1883) ILB 6 A. 73, where it is said that " in the event of his" (the debtor s) "producing the bond" the plaintiff should show that it had not been discharged by payment, and that the defendant was ordinarily " bound to prove" discharge " either by evidence of the fact" of payment "or the production of the bond or both." The Subordinate Judge in deciding the issues Nos. 2 and 5 relied also on the fact that " the 10th defendant in her written statement admits the full discharge." The Subordinate Judge further says " Admittedly, the mortgage-deed was with 10th defendant and she has returned the document with an endorsement of full discharge" etc. The Subordinate Judge dismissed the plaintiff s suit, finding on the issues Nos. 2 and 5 that " the payment of the whole debt to 10th defendant as admitted by her" is a valid discharge and that the plaintiff cannot sue on the bond as if half the amount thereof was still due. He therefore dismissed the plaintiff s suit without going into the question whether the plaintiff and the 10th defendant each lent half the money or the 10th defendant lent the whole of the mortgage money under Exhibit I (1st issue in the case) and into the other questions raised by the issues Nos. 3, 4, and 6 to 9. In his appeal to the District Court, the plaintiff raised twelve contentions in his appeal memorandum. The 4th and 5th contentions are as follow : " The lower court has attached undue importance to the written statement of the 10th defendant. The lower court is wrong in assuming that the discharge pleaded by the defendants is true. There is no evidence adduced by the defendants about the discharge pleaded by them and the suit should therefore have been decreed for the plaintiff." The District Judge says on the point " 10th defendant said she was paid off in full, and so she has been according to the bond itself and her written statement...the 10th defendant admits full payment of the mortgage amount and the fact that 2nd defendant who should have paid off the mortgage is the party who produces the discharged deed is strong evidence that it really has been paid off." I take it that the District Judge treating (a) the 10th defendant s admission in the written statement as evidence of full payment and discharge as against the plaintiff and (b) the production of the document (Exhibit I) by the 2nd defendant as also evidence of such full payment and discharge as against the plaintiff, dismissed the plaintiff s appeal.