SM BHABA SUNDARI Vs. RAM KAMAL DUTTA

JUDGEMENT

(1.) This is an appeal by the defendant in a mortgage suit. The mortgage bond was executed, by the defendant's husband, who has died and the defence taken was that the mortgage had been discharged by a payment of the principal sum of Rs. 100 which was due thereon and that the interest which was due has been remitted by the plaintiff. The first Court dismissed the suit accepting the story of the defendant but the lower appellate Court has decreed the suit for what remained due on the mortgage holding that the evidence tendered by the defendant to show satisfaction by payment of Rs. 100 and by remission of the interest was not admissible having regard to the provisions of the Indian Evidence Act. In our opinion, the evidence is admissible to show satisfaction of the mortgage in the manner alleged by the defendant. We have been referred to two decisions, one of the Bombay High Court in Jagannath V/s. Shankar [1920] 4 Bom. 55, and the other in G.P. Mallappa V/s. Matun Naga Chetty [1918] 42 Mad. 41. There is no doubt that the decision in Jagannath V/s. Shankar [1920] 44 Bom. 55 supports the view taken by the learned District Judge, namely, that the evidence tendered by the defendant on this point was not admissible. But sitting recently with Mr. Justice B.B. Ghose I had an occasion to consider the Bombay decision and the view we arrived at was that despite that decision it was open to the mortgagor to prove that the mortgage had been satisfied not merely by payment in full of the amount which was due thereon but by part payment and remission of the balance. That case is not reported and unfortunately we have not been able to refer to it. But I still adhere to the view expressed therein and this being so, we think that the learned District Judge was wrong in holding that the evidence tendered by the defendant was not admissible.

(2.) The result is that the decree of the lower appellate Court is set aside and the case is sent back to that Court in order that the learned Judge in that Court may arrive at a decision after considering the evidence given by the defendant as to the satisfaction of the mortgage by payment of Rs. 100 and remission of the interest due on the mortgage and may finally dispose of the appeal. Costs of this appeal will abide the result. Panton, J.

(3.) I agree.