BHANJI UNDRAJI Vs. GOVIND ATMARAM

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by respondent Govind against the appellant Bhanji for recovering compensation for the breach of a covenent in a sale deed executed by the former in favour of the latter. The respondent was indebted to one Jageswar Ramdeo Gore on two promissory notes, dated 13th June 1920 and 17th June 1920 for Rs. 5,000 and Rs. 3,721 respectively, carrying interest at 1 per cent per mensem. On 20th May 1922 he sold his fields to the appellant, Bhanji for Rs. 7,000 by a duly registered conveyance and the vendee agreed to pay Rs. 7,000 in satisfaction of the debts due by the vendor on the aforesaid two promissory notes. At the time of the execution of the sale deed the creditor Jageswar Ramdeo Gore had died leaving surviving him a widow by name Gangabai and a widowed daughter-in-law, Satyabhamabai. At his death he left a will authorizing Mt. Satyabhamabai to take a boy in adoption. Mt. Satyabhamabai had applied for the grant of a probate on 18th, January 1921, which was granted to her on 23rd December 1921, notwithstanding Mt. Gangabai's contest. On the date of the sale deed Mt. Gangabai's appeal from the order granting probate to Mt. Satyabhamabai was pending in the Judicial Commissioner's Court. It was not until 15th June 1923 that their dispute was settled amicably by the execution of a kararnama. Mt. Gangabai died some time in 1924. Mt. Satyabhamabai in the meantime adopted a boy named Dattatraya as her son.

(2.) MT . Satyabhamabai and her son Dattatraya filed Civil Suits Nos. 50 and 51 of 1925 against Govind, the plaintiff, in the present case, for recovering the debts due on the two promissory notes dated 13th June 1920 and 17th June 1920, and despite the plea of satisfaction succeeded in obtaining decrees which were confirmed in the Court of the Judicial Commissioner in First Appeal No. 26-B of 1926 on 7th October 1927. Under the decrees the plaintiff was ordered to pay Rs. 14,618-5-6 with interest and costs. The plaintiff Govind satisfied the decrees by depositing various sums from 12th January 1929 to 13th June 1929.

(3.) ON behalf of the appellant it is urged that since the promissory notes were received back by Govind, the plaintiff, the burden was incumbent on him to disprove the payment of Rs. 7,000 to Mt. Gangabai as alleged by the defendant, Bhanji. Under Section 114, Evidence Act, as per illus. (1), it is open to the Court to presume that, when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. This would undoubtedly be so if the contest had been between the creditor and the debtor. In Debendra Kumar Man-del v. Rup Lall Dass (1886) 12 Cal 546 it was held by Field, J., the presumption has much less force when raised between the debtor and the purchaser of the debt than when raised between the original creditor and the debtor. The presumption is strong when the debtor produces the instrument of obligation with an endorsement of payment on it: see Muhammad Mehdi Hasan Khan v. Mandir Das (1912) 34 All 511. In Alwar Naidu v. Kothandapani, , their Lordships of the Privy Council held that if the debtor produced only the document creating obligation, but the title-deeds, which were deposited with the creditor as additional security, remained with him, the presumption arising from the possession of the document creating obligation was considerably weakened. In In re Para Thurinji (1915) 30 IC 258 where the defendant pleaded discharge and produced the bond but there was no endorsement and the person alleged to have been paid was not examined, the production of the bond itself was not held to shift the burden on the creditor. Thus it is evident that the strength of the presumption which might be raised when the document creating obligation is produced by the obligor varies in different circumstances. The burden shifts as the evidence is developed and when both the parties produce their evidence the question on whom initially the onus lay ceases to be of much importance.