BALAGHAT HUSAIN Vs. ABID BAKHSH

JUDGEMENT

(1.) This is a plaintiffs appeal. One Balaghat Husain sued on a hypothecation bond, dated the 6 of February 1920, the mortgagor, Defendant No. 1 Mt. Bilqisunnissa, and two mortgages, alleged to be subsequent mortgagees, Defendants Nos. 2 and 3. Defendant No. 1 did not defend the suit. The only contesting defendants were Defendants Nos. 2 and 3. The plaintiff declared that he had lost the bond, and tendered in evidence a certified copy. The first Court found everything in favour of the plaintiff, including the loss of the bond. The lower appellate Court came to the conclusion that the allegations of the defendants that the bond was fictitious, that it had, as a matter of fact, been discharged before the date of transfer to them and that an endorsement had been made on the bond and that it had been returned to the mortgagor and again returned to the plaintiff were untrue; but further found that it was not established that the bond had been lost and on this ground it dismissed the suit. Counsel for the appellant agrees that it is a fair statement of the case for the appellant as it has been put before me here that he has relied on the second ground in the memorandum of appeal which in fact states the whole of case. It reads as follows: Because execution of the deed being admitted and it being found as a fact that it was never returned by the plaintiff-appellant with an endorsement, there was nothing left for the plaintiff to prove in order to obtain a decree.

(2.) The real question for decision then in this case is What did the Defendants Nos. 2 and 3 admit and does their admission of the plaintiff's case go so far that a decree could be found on that admission without further proof of the contents of the document? The material paragraphs of the pleadings in the plaint are para. No. 2 where the mortgage is set out in complete detail. This was met by the defendants in their written statement where they begin by saying that para. 2 of the plaint which sets out the terms of the mortgage is "not admitted." In their additional statement they say in para. 3: In April 1922 the contesting defendant came to know that the document sued upon, was fictitious and fraudulent, and that, at the time of the decision of the criminal case the plaintiff endorsed payment on it and returned it to Saghiruddin and Defendant No. 1. Thereupon the contesting defendant gave a registered notice, on 29 April 1922, to Defendant No. 1 and asked for the return of the document. He replied very late and said that the document had been returned to Balaghat Husain (the Saghiruddin mentioned is the husband of Defendant No. 1).

(3.) Further in para. 4 of, their additional statement they use this expression "The plaintiff concealed the original document" and in para. 5 they say "The bond sued upon is fictitious and without consideration."