LAL SINGH Vs. SURJAN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit on foot of two mortgages one dated the 4th of March 1895, and the other, an unregistered mortgage, dated the 5th of March of the same year. The mortgagors in the first mortgage were Durjan Singh, Bijai Singh, Raghunath Singh, Harnarain Singh and Tikam Singh. These persons were the five sons of Bhup Singh. The second mortgage was executed by Musammat Khuahal Kunwar, the widow of Bhup Singh and the mother of the mortgagors in the first mortgage. The first mortgage was made to secure the sum of Rs. 1,000. The second mortgage was to secure the sum of Rs. 99. The consideration for the first mortgage (according to the document) was the amount of a decree against Durjan Singh, Bijai Singh, Raghunath Singh and Harnarain Singh, together with an advance of Rs. 76 odd. According to the evidence" this decree had been obtained on foot of a promissory note made by the first four mortgagors in 1892. The consideration for the second mortgage was Rs. 99 an advance to the Musammat. The document was witnessed by all the sons. Various defences were pleaded. The plaintiffs were put on proof of their mortgage, and there was a further allegation that the whole transaction was fictitious and entered into to save the property of the mortgagors from their creditors. The plaintiffs produced one of the attesting witnesses who proved the execution of the mortgage. The other attesting witness was not called, the plaintiff suggesting that he had been won over by the other side. No evidence was given on behalf of the defendants to show that the mortgage was not executed by the mortgagors in the presence of two attesting witnesses. On this point the case was decided on the evidence adduced by the plaintiffs. Tori Singh, one of the plaintiffs, came into the witness box and proved the consideration for the mortgage. Tikam Singh had pleaded that he was a minor in 1895. Tori Singh deposed to the fast that Tikam Singh appeared to be a major, that no one would have taken him for a minor and that he had stated his age to be 25. Noevidenceof any kind was given by the defendants to support the plea that the mortgage transactions were fictitious. At the time of the institution of the suit all the mortgagors were alive except Harnarain, yet none of them came forward to prove that the mortgage was anything but a genuine transaction. The Court below seems to have been doubtful as to whether or not the ^ mortgage was properly proved having regard to the provisions of the Transfer of Property Act and a recent decision of their Lordships of the Privy Council. It further held that the plaintiffs had not proved that Tikam Singh was a major, and also that the consideration was not proved. Under these circumstances the suit was dismissed.

(2.) We think on the evidence that the Court below ought to have held the mortgage proved. The plaintiffs complied with the provisions of the Evidence Act in calling one of the attesting witnesses and that witness proves the mortgage. After this evidence had been given it lay upon the defendants to prove that the provisions of the Transfer of Property Act had not been complied with. With regard to the question of the minority of Tikam Singh, it is in the present case unnecessary for us to say whether or not the onus lay upon the plaintiffs; Our attention has been called to the case of Gaya Din v. Musammat Dulari 2 Ind. Cas. 839 : 6 A.L.J. 693 and to another case, viz., Kanhaya Lal v. Girdhari Lal 13 Ind. Cas. 956 : 9 A.L.J. 103. We think that it is unnecessary in the present case to express any opinion upon the view of the law as to onus of proof expressed in these cases. In the present case the mortgage purported to have been executed by Tikam Singh as a major. The document was duly registered, although the age of Tikam Singh is not stated in the endorsement of the Sub Registrar. Tori Singh, however, stated that Tikam Singh had at the time of the registration and of the execution of the document stated himself to be of full age, also that Tikam Singh appeared to be of full age, and that no one would have thought that he was a minor. Tikam Singh himself was unable even to deny that he executed the bond. He said he could not say whether it was his signature or not. He produced no horoscope. He admitted that if his eldest son had lived he would have been thirteen or fourteen years of age at the time he was giving his evidence. He further admitted that there had been gray hair in his beard eight or ten years before. He produced no member of his family to say that he was less than eighteen years of age at the time of the execution of the bond. Under these circumstances we have no hesitation in holding that Tikam Singh was of full age when he executed the bond. Bearing in mind the uncontradicted evidence that there had been a promissory note executed by all the brothers except Tikam Singh, that a decree had been obtained upon this promissory note and that the mortgage was executed by all the adult members in the year 1895, we think that we ought to hold that the debt was a family debt or that it was a bond executed by the managing members of the family for family purposes.

(3.) There remains the question of the amount for which a decree should be given. The first point as we have already stated was for the principal sum of Rs. 1,000. The second bond was for Rs. 99. The rate of interest was Rs. 18 per cent, per annum, compound interest. The amount claimed at the time of the institution of the suit (that was the year 1910) amounted to Rs. 13,952. This is an enormous sum to have accumulated upon a loan of the small sum of Rs. 1,100. In our opinion it has not been proved that there was any necessity whatever for borrowing money at this exorbitant amount of interest. The decree only bore interest at 6 per cent. We accordingly think that as regards the first bond interest should be allowed at the rate of 10 per cent, per annum simple interest. With regard to the second bond it was not executed by the owners of the property at all. It was executed by their mother. The mere fact that it was witnessed by her sons, does not, in our opinion, operate to create a valid mortgage. The suit must stand dismissed so far as the second- bond is concerned. The order of the Court will be that we vary the decree of the Court below by giving a decree for Rs. 1,000 principal together with simple interest at the rate of 10 per cent, per annum up to the date fixed by us for payment. This date- we fix at six months from this day. There will be no future interest. We direct that the parties will pay their own costs in all Courts.