HIRA LAL Vs. RAM PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit instituted by Hira Lal, appellant, for recovery of Rs. 847 on the basis of a simple mortgage for Rs. 500. The plaintiff alleged that the security bond was executed by Dudh Nath mortgagor on 27 March 1924, but only a certified copy of the document was produced in Court. He accounted for the loss of the original deed by saying that be kept the mortgage deed in the pocket of his kurta and one night while it was left hanging on a peg in his bed room, the kurta as well as the deed were stolen. The plaintiff failed to satisfy the Courts below of the truth of this allegation. The defendants were the transferees from Dadb Nath, Only Behari Lal, defendant 4, contested the suit. He pleaded, inter alia, that the document was still in possession of the plaintiff audi it was not produced because there was an endorsement of payment on the back of it. It appears that in a previous suit, instituted by Behari Lal on the foot of a mortgage of the same property, one of the defendants, namely, Mt. Ram Kali, another secured creditor and a first cousin of the plaintiff, alleged that she discharged the plaintiff's mortgage and claimed that she was subrogated to the position of Hira Lal. She produced a receipt from the present plaintiff, Hira Lal, to prove payment. The latter admitted the receipt of his mortgage money. It would seem, however, that the effort of Mt. Ram Kali miscarried. The evidence of payment was not considered satisfactory and the Court refused to hold that the lady was entitled to priority. Behari Lal naturally was not aware of the actings of Hira Lal but he apparently suspected the existence of an endorsement of payment on the hypothecation bond and alleged payment by Mt. Ram Kali as a ground of defence, it being averred that the suit was instituted for the benefit of Ram Kali in order to enable her to get over her failure in the earlier decision.

(2.) The trial Court's findings on the question of payment embodied in issue & was somewhat vague. He said: But in view of the fact that the version of these witnesses has not been accepted in the former suit, I am also not prepared to hold that the defendant has been able to prove as a fact that the deed in suit had been paid off and its payment endorsed on Its back. Therefore this issue must be found against the defendant. This result does - not mean that the probability of the case relating to the payment of the deed in suit and endorsement in respect there of at its back is also set at rest. That probability stands and explains the reason why the plaintiff is withholding the deed in suit and setting up false case of its loss. It appears thus that the learned Munsif believed that the original deed was not produced because it contained an endorsement of payment which had the effect of discharging the liability of the mortgagor. This is clear from the finding given by him on 7 issue which covered Behari Lal's plea about the suit being for the benefit of defendant 2. He answered that issue in favour of Behari Lal and held that the present suit was instituted with the object of benefiting Mt. Ram Kali. He further held that the mortgage deed was withheld by Hira Lal in order to hide from the Court the fact that it contained an endorsement -at its back. He did not, therefore, accept the plaintiff's plea about the loss of the original and refused to take secondary evidence of the deed in suit with the result that Hira Lal's suit failed and was dismissed with costs.

(3.) The plaintiff appealed and the only point pressed in the Court of the learned Civil Judge, Partabgarh, was that the loss of the original deed was duly proved. The lower appellate Court carefully examined the appellant's case but eventually it upheld the finding of the learned Munsif and dismissed the appeal. Hira Lal has come up to this Court by way of second appeal.