KOTI BHARMA LINGAPPA Vs. SNILAKANTAPPAYYA WADIAR

JUDGEMENT

(1.) This is an appeal from the decree of the Court of the Subordinate Judge of Bellary dated 28 February, 1933, in O.S. No. 5 of 1932, a suit for recovery of possession of certain lands and for redemption of certain mortgages. There were three mortgages, one of 1917 for Rs. 800, another of 1920 for Rs. 2,850 and the third one of the same date as the first for Rs. 1,400. The lands included in the mortgages were different. Over and above the lands included in these mortgages, two survey numbers, 53 and 71, were alleged to be in the possession of the defendant under a certain arrangement whereby he was to be in possession for 13 years in lieu of a sum of Rs. 700 due to him. The plaintiffs pleaded that they had discharged all the three mortgages and also the debt of Rs. 700 and they produced three receipts, Exs. A-1, A-2 and A, in support of their allegation. These receipts amounting to Rs. 5,700 were relied upon by the Court below in support of its finding that the payments alleged in the plaint were true though the lower Court was clearly of opinion that, but for these receipts, there was no satisfactory evidence of the payments. The execution of these receipts was admitted by the defendant but he alleged that he executed them at the request of the plaintiffs nominally with a view to assist the cause which was pending before the Board of Commissioners for Hindu Religious Endowments which had threatened to remove the plaintiffs from the trusteeship of the Mylar temple unless they paid off the debts due on the mortgages and recovered possession of the properties which had been mortgaged and which really belonged to the trust. The defendant also relied on Ex. VI, a letter, which was said to have been executed in his favour by one of the plaintiffs three days after the date of Ex. A, the receipt for Rs. 3,000 in which it was admitted that that receipt was executed out of confidence and nominally for the purpose of being produced before the Board. In short, the defendant's contention was that the receipts relied upon by the plaintiffs were executed nominally and did not evidence actual payments. It was further contended that these receipts, and especially Exs. A and A-2, were not admissible in evidence by reason of the provisions of Secs.17 and 49 of the Registration Act.

(2.) The main point for consideration in this appeal is whether the receipts in question are admissible because the learned Subordinate Judge who heard the oral evidence was clearly of opinion that, in the absence of the receipts, it would not be possible to find that payments had been made. We have been taken through the oral evidence ourselves and we are also of the same opinion, namely, that the oral evidence on the side of the plaintiffs to prove the alleged payments is worthless and cannot be made the basis of a finding in plaintiffs favour if it is found that the receipts are inadmissible or that they were executed nominally.

(3.) So far as Exs. A-2 and A are concerned, they purport to put an end to the mortgage rights and therefore they do not come within the exception embodied in Section 17(2)(xi) of the Registration Act. If follows therefore that these two receipts are compulsorily registrable under Section 17(1) of the Act. Section 49 provides that no document required by Section 17 to be registered, shall be received as evidence of any transaction affecting any immovable property referred to therein. These receipts can be relevant only as evidence of payments of mortgage- debts either in full or in part. Otherwise they would be irrelevant-And if they are relevant only for proving payments of the mortgage-debts, they certainly would affect the mortgage-debts by reducing them considerably. In these circumstances, it is impossible in our opinion, to contend that Section 49 does not stand in the way of the plaintiffs relying on these receipts as evidence of payment of the mortgage-debts in question. These two receipts, Exs. A-2 and A must, therefore, be excluded from the evidence and the result of this exclusion is, as indicated above, fatal to the plaintiffs case, for the remaining evidence is unacceptable. It is unnecessary to go into the details to the oral evidence relating to the alleged payments because the learned Subordinate Judge who heard the evidence himself has said in so many words that it is very unsatisfactory. Apart from this, there is Ex. VI, which, no doubt, has been rejected by the learned trial Judge as not having been proved satisfactorily; but we are of opinion, after going through the entire evidence that Ex. VI is a genuine document and cannot be rejected. The circumstances clearly show that Ex. A, in any case, must have been executed nominally, and that no money could have been paid at the time. It is however unnecessary to base our decision on Ex. VI because we have found that Exs. A-2 and A cannot be admitted in evidence and in their absence the remaining evidence about the alleged payments is quite unsatisfactory. We therefore rind that the payments to which Exs. A-2 and A relate, namely, the alleged payment of Rs. 700 on 12 July, 1928, and the alleged payment of Rs. 3,000 on 6 December, 1930, are not true.