GAYA PRASAD Vs. BABU RAM

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for sale on the basis of a mortgage-deed dated 8 March 1897 executed by one Kashi Prasad in favour of three persons Babu Ram, Har Prasad and Dwarka Prasad for a sum of Rs. 8,500. The suit was instituted by Babu Ram alone for his one-third share in the mortgage money. It is an admitted fact that by a subsequent purchase Har Prasad's sons who are the present appellants, acquired the interest of Dwarka Prasad in the mortgage-debt, and they have also acquired the whole of the equity of redemption. In order to bring the claim within limitation the plaintiff relied on certain acknowledgments and alleged payments of interest. The main defence to the suit was that the plaintiff's claim was barred by limitation and that in any case the whole amount had been paid off and nothing was outstanding. The learned Subordinate Judge has decreed the claim; hence the appeal.

(2.) It appears that on 12 October 1898 the mortgagor Kashi Prasad executed a lease of the mortgaged property in favour of Gaya Prasad, one of the appellants. Under this lease Gaya Prasad was put in possession of the mortgaged property, and the mortgagor authorized the lessee to pay out of the net profits of Rs. 1,000 the interest due under the mortgage-deed of 1897 in the first instance and the surplus towards the principal of that debt. Gaya Prasad was one of the sons of the mortgagee Har Prasad. It is not disputed that Gaya Prasad did enter into possession of the property, nor is it denied that for a number of years from 1898 to 1912 payments were made by Gaya Prasad to all the mortgagees and receipts were duly obtained.

(3.) The plaintiff alleged that there was a payment of Rs. 1,000 in 1913 and also a payment of Rs. 180 on 5 July 1914. The original receipt in support of the payment of Rs. 1,000 bears the date 24 June 1912 and not 1913. It is therefore now conceded on behalf of the plaintiff that this payment does not help him. As regards the payment of Rs. 180 on 5 July 1914 there is no documentary evidence to prove it except a paper said to be a draft copy of the original receipt which has been rejected by the Court below. In support of this alleged payment the plaintiff produced two witnesses, Sukh Lal and Samokhan, who did not by their demeanour impress the Court below, and whom the Court has considered to be utterly unreliable witnesses. There was considerable delay in summoning the alleged draft copy and there is also the fact that the witness Samokhan had never been summoned before although the case came up for hearing on four former occasions. Having regard to all these circumstances we find it difficult to take a contrary view. As regards this alleged payment it must therefore be held that there was no payment to the plaintiff in 1914.