ANANDIBAI BHASKAR NILKANTH Vs. NARAYAN DHONDDEV TATTOO

JUDGEMENT

(1.) The plaintiff in this appeal has raised three contentions; (1) that the Court below was in error in holding that of the alleged consideration of Rs. 5,000, Rs. 1,300 were not proved to have been paid; (2) that the Court below was in error in exempting from the operation of the mortgage five Survey Numbers 183 and 185, held by the Court below to belong to defendant No. 3, and Nos. 155, 156, and 157 held by the Court below to belong to defendant No. 4; (3) that the instalments allowed by the Court below are unjustifiable with all the circumstances of the case; and that this Court ought to alter that part of the decree of the Court below, even though it confirms the rest of the decree. Upon all these points after hearing very full arguments on behalf of the appellant and of the respondents Nos. 3 and 4, we are of opinion that the appellant is entitled to succeed. We think that the Court below took much too strict a view of the requirements of proof in respect of Rs. 1,300 having regard to the obvious disadvantage under which the plaintiff lay.

(2.) Here again the appellant s case for the purpose of argument may be divided into three parts. The plaintiff who was a minor and represented by a guardian, who himself knows nothing whatever of these transactions, endeavoured to convince the learned Judge below that the alleged consideration was fully paid upon three main grounds of inference. First in respect of an assistance suit, the plaintiff contended that inasmuch as the defendant therein made no reference to any failure of consideration, and for the purposes of that suit the consideration was impliedly the alleged consideration of Rs. 5,000 it is unreasonable to suppose that the defendants contention here is well-founded. If he really had this grievance in respect of a partial failure of the consideration money he would have certainly said so in the assistance suit; secondly, in regard to the consideration of a second usufructuary mortgage of Rs. 2,366, the plaintiff s argument is that had the defendants been still entitled to Rs. 1,300 from him on the prior mortgage, he would certainly have refused to acknowledge the debt of Rs. 2,366 without a reference to this sum to which he would then have been entitled; and lastly that the rent-notes admittedly executed by the defendant imply that the principal sum of the mortgage was Rs. 5,000. This is arrived at by assuming that rate of interest was 13 annas per cent. per mensem, and when calculated on Rs. 5,000 for a period of nine months or three quarters of a year, yields a rent of as nearly as possible Rs. 370 which was the rent agreed to be paid by the defendant for nine months. We think that all these inferences are very cogent, and that the Court can hardly have expected more from the plaintiff in the circumstances of the case by way of strict proof. It is very easy for the defendants simply to deny the receipt of a part of the consideration knowing well that the minor plaintiff is not in a position to have very accurate information as to the events which happened in 1892 But we do think, after carefully considering the record as it stands and the arguments founded upon it, that there is no sufficient reason whatever to doubt that, as appears on the mortgage bond, the consideration money advanced was Rs. 5,000 and not merely Rs. 3,700 as now alleged by the defendant. For what they are worth the entries in the Record of Rights, to which we must assume that the defendant here was a party, confirm our conclusion. In one of these entries, the mortgage is referred to and the consideration is stated to have been Rs. 5,000, and not Rs. 3,700. We are, therefore, satisfied that the learned Judge below was in error in refusing to decree to the plaintiff Rs. 5,000 as principal on the mortgage.

(3.) The next point relates to the lands which the learned Judge below has declared not to be covered by the plaintiff s mortgage. Here again the onus of proof was thrown, and rightly thrown, no doubt in the first instance, upon the plaintiff, but we think that the plaintiff has satisfactorily discharged it. It is to be observed in this connection that neither of the defendants 3 and 4 appear to have taken the least interest in the conduct of the suit. They restricted themselves to their written statements denying the plaintiff s claim so far as the mortgage was sought to be extended to these lands, but they did not appear before the Judge, or so far as we can see offer any evidence with the single exception of Exhibit 78 in support of this contention. How Ex. 78 got on the record is not very clear.