ALWAR NAIDU Vs. KOTHANDAPANI NAIDU

JUDGEMENT

(1.) In this case either the plaintiffs are suing to recover a mortgage debt already discharged, or the defendants are setting up a false case of discharge, relying on the fact that the mortgage deed has come into their possession and purports to bear an endorsement of discharge by the plaintiffs father, who had admittedly lent money to the first defendant and taken a mortgage bond in the name of his son, the second plaintiff. The Subordinate Judge of Trichinopoly found on a full consideration of the evidence that the plaintiffs case was true and the defence totally false, while the learned Judges of the High Court held that the possession of the document bearing an endorsement of discharge threw heavily on the plaintiffs the onus of proving that the document was stolen from them and the endorsement forged, and that they had failed to discharge it. The respondents were not represented at the hearing of this appeal, and their Lordships unfortunately have not had the advantage of hearing counsel on their behalf. They have, however, very carefully considered the evidence, and have come to the conclusion that the Subordinate Judge was right in finding in favour of the plaintiffs

(2.) On August 1, 1916, the first defendant (who was the father of the second and third defendants), for the consideration recited in the deed executed a mortgage bond in favour of the second plaintiff, making the mortgage debt repayable on or before August 31, 1918. At the same time he deposited with the plaintiffs the title deeds of the mortgaged property, which are still in possession of the plaintiffs, and the fact that he did not get them back at the time of the alleged discharge when, his case is, the document itself was returned to him, in their Lordships opinion considerably weakens the presumption in his favour arising from the possession of the mortgage document. The first defendant, no doubt, endeavoured to explain this on the ground that the plaintiffs father insisted on retaining them until payment of a promissory note for Rs. 500, by which according to the endorsement alleged to be forged, the balance of the mortgage debt was discharged. He also endeavoured unsuccessfully to show that some of the deeds had been returned to him. Apart, however, from the question of onus, their Lordships are satisfied that the defendants story of discharge is false. In coming to this conclusion they have necessarily disregarded the finding of the learned Subordinate Judge, based on comparisons of handwriting, that the Tamil endorsement of discharge on the mortgage deed was not in the handwriting of the plaintiffs father, inasmuch as the learned Judges of the High Court do not accept this conclusion, and the question is one as to which necessarily their Lordships are not in a position to form any opinion of their own.

(3.) The mortgage deed (Ex. 1) contains two admittedly genuine endorsements of payment of interest 1 (6) and 1 (c) of September 6 and 7, 1916, which are not in the first defendant's handwriting, but signed by him according to the usual practice, thus affording a fresh starting point for limitation. These endorsements are said to be in the writing of the second plaintiff. On the other hand, the next six endorsements of payments of principal and interest, on which the first defendant relies, are all in his own writing, as well as signed by him, and could therefore have been made by him at any time after obtaining possession surreptitiously of the deed.