MILLER Vs. BABU MADHO DAS

JUDGEMENT

(1.) RAM Kishen Das, who carried on a large business in Calcutta, was on March 2, 1889, adjudicated an insolvent by the High Court at Calcutta, and his estate became vested in the appellant as the official assignee. On May 6, 1889, the respondent's pleaders wrote and sent a letter to the appellant, stating that the respondent was a creditor of the insolvent for Rs. 1,53,339 on balance of account with interest, that the respondent held as collateral security for his debt the title deeds and documents of certain houses and lands situate at Benares, Grhazipur and Mirzapur of the value of Rs. 65 to 70,000, and that the title deeds of the properties were delivered to the respondent by the insolvent himself at Calcutta in February, 1888. And they inquired whether the appellant was prepared to admit the equitable mortgage. On the next day the appellant replied by letter that it would be necessary for him to make inquiries into the matter of the mortgage claim, and if the respondent could prove the mortgage to the satisfaction of the Insolvent Court he would be prepared to consent to the usual order for sale. He added that in the meanwhile he would be obliged if they would send for his inspection a copy of the memorandum which accompanied the deposit of the title deeds. On May 13 the pleaders replied that they were prepared to give the appellant sufficient time to make inquiries; but as he appeared to insist upon their proving the claim in the Insolvent Court, and made it a condition of accepting the mortgagee's right, they were prepared to seek their remedy in a court having jurisdiction to try the question at issue. They added that if the appellant wished to settle the matter out of court they were prepared to give him every facility in making inquiries into the matter, and for this reason they gave him one week's time to make up his mind with reference to the subject of their claim. On May 17 the appellant acknowledged the receipt of this letter, and referring to his of the 9th reminded them that they had not complied with the request in it for a copy of the memorandum, and again asked for it. To this the pleaders on May 21 replied by letter "that the title deeds of certain houses &c. were made over to Babu Madho Das my . client's agents Bhagwan Dass and Buldeovajee at Calcutta as collateral security for his debts. No written memo, accompanied the title deeds at the time of their deposit and for this reason we cannot furnish a copy of the same." On June 6, 1889, an order was made by the High Court at Calcutta for the respondent and his gomashta to attend before the Court and be examined in the matter of the insolvency, and to produce the documents and deeds said to have been deposited. On the same day the respondent filed his plaint in the Court of the Subordinate Judge of Mirzapur against Ram Kishen and the appellant praying for a decree for the amount claimed for debt, and that in default of payment the properties alleged to have been mortgaged might be sold and the proceeds applied in payment. The appellant in his written statement denied that the title deeds were deposited as alleged in the plaint.

(2.) ON September 19, 1889, the suit was transferred from the Court of the Subordinate Judge to the Court of the District Judge of Mirzapur. Of the nine issues framed by him the only one which is now material is the fourth. That is, " Were the title deeds specified in paragraph 6 of the plaint deposited by defendant 1 with plaintiff or his agents in Calcutta in February, 1888? " The District Judge, in a judgment where the evidence is fully and carefully discussed, found that it was not proved that the title deeds were delivered to the respondent's gomashtas in Calcutta in February, 1888, and dismissed the suit. The respondent appealed to the High Court at Allahabad. That Court came to the opposite conclusion, and made a decree in the plaintiff's favour which is the subject of the present appeal.

(3.) THE letter referred to was produced. It is as follows: "From Ram Kishen to B. Madho Das. Sir my compliments to you. I send herewith 4 hundis for Rs. 1,00,000. Sign them and send them with interest to Rajah Shimbhu Narain Singh. I shall after I have reached Calcutta send you the interest in 15 or 20 days or you may otherwise draw a hundi. .... A sum of nearly Rs. 1,48,000 will be found due to you in respect of the Nij account up to Sambat 94. I shall pay the whole of this sum together with interest according to account up to November 1888 and shall not make another promise nor shall I give you the trouble to renew the Rajah Saheb's hundis. I shall write the particulars to you after I have compared what you have written. The rest is all right. Dated 29th January, 1888." The witness said he told Ram Kishen the respondent would not believe his word unless he wrote a letter to him, and yet there is nothing in this letter about the most important matter. In a later part of his evidence he gave a different account of when the letter was written. He said that subsequently to the writing of the letter came the proposal for the delivery of documents. "Baboo Ramkishun had proposed the delivery of documents, I myself made no inquiry from Ramkishun regarding the documents. On the contrary Ramkishun himself had said 'This time the plaintiff does not trust me and does not accept the hundi in favour of the Rajah Sahib. Therefore I myself shall deliver the title deeds of houses to him when he or his man comes.' Ere the writing of this letter Ramkishun had not in my presence made mention of the delivery of the documents." It is evident that at this stage of his examination, having seen the effect of the letter upon what he had before said, he sought to get out of the difficulty by saying that the proposal to deliver the documents was made after the letter was written; but then it may be asked why if, as he had said, the respondent would not believe his words without a letter, he did not have this proposal added in the letter, and why, if he told the respondent of the offer, the latter did not notice that it was not in the letter and was satisfied without having it in. Which is the more probable, that the witness has not told the truth about what passed between him and Ram Kishen and what he told the respondent, or that if he has the letter would have said nothing about it? It is to be observed that Ram Kishun, the only person present, had left Calcutta after the adjudication of insolvency and could not be found. Most likely the witness knew this and had no fear of being contradicted or punished for giving false evidence, and he must from his position have been considerably under the power and influence of the respondent. About the deposit of the title deeds the witness said that he and Bhagwan Das went to Calcutta by order of the plaintiff to take the title deeds; they called on Ram Kishen and said, "Please give us what you promised at Benares and leave to go back." The witness Bhagwan Das and Ram Kishen were there; there was no one else; he demanded the title deeds from Ram Kishen according to his promise. Ram Kishen put them off on two or three days successively, and finally took the papers which were in the cloth bundle with a list in English out of a box and gave them to the witness, who made a list of them in Hindi. There were thirty-three documents and fifty-five papers connected with them. The witness requested Ram Kishen to write a letter and give it to him; and Ram Kishen said, "There is no occasion for a letter. Take away these papers without it as the letter if written will require registration, &c." The witness said that when they were not accompanied by any letter or any other writing, how could the (transaction) be considered to be a mortgage; and thereupon he said, "Take them away as I say, such is the practice in the town." Their Lordships doubt whether it can be the practice in Calcutta to take a mortgage by deposit of title deeds without a memorandum in writing; but it may be suggested that Ram Kishen said this because he wished to conceal the transaction as it would affect his credit. The witness went on to say that he left the papers with Babu Gambhir Chand for three or four days until he went back to Benares, when he took them from him and went to Benares and delivered them to the respondent. Bhagwan Das, who was in the respondent's service and had been his gomashta for thirteen or fourteen years, deposed that Buldeo and he went from. Benares and reached Calcutta on the next day, and went to Ram Kishen instantly and saw him at his office; that they said to him they were ready for the purpose for which he wanted them, and he asked them to come to him on the next day or the day after; so far as he believed, they went to him on the next day in the afternoon; he took them upstairs to his private room and brought a bundle from a box; there was a list in it in English, and the bundle contained title deeds. Ram Kishen, having seen the list and the papers, was giving title deeds to Buldeo after marking his list. Buldeo prepared a list of title deeds in Hindi in the order in which Ram Kishen gave them to him. The number of the papers was compared with both lists, and Buldeo said, "Please give a letter and cash also. It would not be proper to give the papers alone to the plaintiff." Ram Kishen replied, "I tried to make arrangement for money but I could not succeed in that behalf. It will be irregular to write a letter in connection with this mortgage. It is the law of the town of Calcutta, I shall pay the money within the time agreed upon. As the plaintiff has lost patience now I will very soon get the title deeds returned by payment of money. It will be invalid to write a letter for it will require registration." Then the witness said, "Babu Sahib, i.e. the plaintiff, would not be pleased without taking money. Please give money along with this." He replied, "There is no opportunity now. I shall remit money as soon as possible and get the things returned." Having taken the list and papers, they went to the firm where Gambhir Chand was a gomashta, and Buldeo said to him, "Please keep these papers. I shall take them back while going to Benares." Buldeo having opened the bundle, the papers were counted with reference to the list and taken by Gambhir Chand. They went to him five or six days afterwards and took the papers from him, and the next day left Calcutta for Benares. On their arrival at Benares, the papers were given by them to the respondent, and he ordered them to go and get the same credited in the account-book of the firm, which was done by Saligram Munib. In a later part of his evidence the witness said that when Gambhir Chand returned the bundle of papers to Buldeo he read four or five of the papers; that the papers which he read contained both Hindi and Persian; he did not recollect whether Gambhir Chand said anything whilst reading the papers or not.