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possession by the mortgagors. The suit was filed on the llth October
1882, and it was met principally by the plea that, as a matter of fact, the
mortgagees, plaintiffs, had never paid the sum of Rs. 9,000 for which the
mortgage had been executed, and that they were therefore not entitled to
sue for possession, and there were other pleas also which need not be
noticed here.

Upon the trial of that case by the Subordinate Judge of Moradabad,
that officer, in his judgment dated the llth May 1883, decreed the suit
for possession, and in the course of his judgment he gave expression to the
view that the plea of the mortgagors as to the total non-payment of the
mortgage-money was unfounded, and that the mortgagees, plaintiffs before
him, had paid at least a sum of Rs. 5,801-6-9, which was the amount of
the debts due to [202] them by the mortgagors on former accounts. The
Subordinate Judge, as to the balance, went on to say : " As regards the
remainder of the mortgage amounb there is no sufficient proof about it,
nor is it necessary to settle this point at present."

As I have already stated, the general effect of the Subordinate Judge's
decree was to decree the plaintiffs'. suit for possession in favour of the
mortgagees. But, although the decree was in their favour, they seem to
have been dissatisfied with so much of the finding of tha Subordinate
Judge as gave colour to the view that only a sum of Rs. 5,801-6-9 had
been paid by them, and that the payment of the remainder was not
proved, and in respect of this finding they seem to have preferred an
appeal to this Court on the 3rd of Dacember 1883. The appeal came
on for hearing before Petheram, C.J., and Duthoit, J., on the 12th Decem-
ber 1884, and the learned Judges then passed a judgment in the case which
may be quoted verbatim, as it is short: " All that is decided is that the
plaintiff is entitled to a decree, as he was entitled to have possession of
the security ; whether the entire consideration of the bond had or had not
passed was not a point directly in issue between the parties, and nothing
has, therefore, been decided regarding it in this suit."

126



YII]



NADBAT SINGH V. INDAR SINGH



13 All. 204



Upon this ground this Court dismissed the appeal before it. Matters
seemed to have stood thus till the lapse of three years from the judgment
of the High Court, when, on the 12th December 1887, this suit was insti-
tuted by the mortgagors, plaintiffs. The object of the suit was to obtain
payment of the balance of the mortgage-money on the mortgage-deed of
the 3rd April 1882, but the plaintiffs' case was not exactly the same as
their defence in the former action. In this suit they have acknowledged
the receipt of Rs. 5,801 out of the Ra. 9,000, the mortgage-money, thus
accepting the finding of the Subordinate Judge in his judgment of the llth
May 1883, and they claim a sum of Rs. 3,199, the balance of the principal
mortgage-money, and Rs. 3,300, interest thereon as damages, thus making
a total claim of Rs. 6,499.

The suit was resisted mainly upon two grounds, first, that it was
barred by limitation, and secondly, that, as a matter of fact, the [203]
money payable by the defendants, mortgagees, to the plaintiffs-appellants
as consideration of the mortgage-deed of tne 3rd April 1882 had been
duly paid by them, the defendants, mortgagees, and that therefore the
suit should be dismissed. Now, upon the first of these points, viz., that
of limitation, the learned Subordinate Judge seems to have been of opinion
that the cause of action which accrued to the plaintiffs for maintaining
this suit, was the date of the High Court's judgment and decree of the
12th December 1884, and not any other date, and that the suit being just
within time by one day, was not barred by limitation. This view is not
clearly expressed in the judgment of the lower Court, and Mr. Conlan for
the appellants has endeavoured to place an intelligible construction upon
it by suggesting thab probably the Subordinate Judge imported consider-
ations such as those contemplated by s. 14 of the Indian Limitation Act
(XV of 1877) when he allowed the whole of the litigation in the former
suit to be excluded from the computation of the period of limitation.
Mr. Conlan addressed a long argument to show that s. 14 of the
Limitation Act did not cover the circumstances of this case, and was
therefore inapplicable. But this contention was regarded by us as one
not requiring any determination in this case, because the suit is within
limitation, even if the contention were to be allowed.

Mr. Conlan' s argument was that the article which governed this case
was No. 113 of the Limitation Act (XV of 1877), which provides period
of only three years lor suits for specific performance of a contract, and
that period is to run from the date fixed for the performance or, if no sucb
date is fixed, when the plaintiff has notice that performance is refused.
The learned counsel argued that in this case the mortgage-deed having
been executed on the 3rd April 1882, and containing in itself a necessary
covenant that the mortgage was executed in lieu of the money to be advanc-
ed by the mortgagees to the mortgagors, the present suit for the recovery
of the balance of such mortgage-money was a suit for specific perform-
ance of the contract, and that therefore the date of the mortgage
itself was the date upon which the whole mortgage-money should have
[204] been paid, and default in such payment amounted to such a cause
of action as would make limitation run against the plaintiffs.

Mr. Amiruddin on behalf of the plaintiff-respondents, resisted this
contention by arguments which, again we do not think we need notice at
length, because, in our opinion, No. 113 of the Limitation Act does not
govern the suit, because it is not a suit for specific performance of
contract.

In my opinion the nature of the suit falls under the purview of

127



1890

JULY 3,

APPEL-
LATE
CIVIL,

13 A. 200 =
11 A.W.N.
(1891) 5.



13 All. 205



INDIAN DECISIONS, NEW SEBIES



[Vol.



1890 No. 65 of the Limitation Act, because it is a suit for compensation for
JULY 3. breach of a promise to do anything at a specified time, or upon the
happening'of a specified contingency, and for such a suit the limitation of
APPEL- time is a period of three years, calculated from the time when the time
LATE specified arrives or the contingency happens. This would have been the
CIVIL limitation applicable to this case if the mortgage-deed of the 3rd April 1882
had been a single unregistered document, but the document on which the
13 A. 200= plaintiffs sue is a registered instrument, and for that reason, in my opinion,
11 A.W.N. Xo. 116 of the Limitation Act applies, which article provides generally
(1891) 8. for suits for compensation for the breach of a contract in writing register-
ed the period of six years to be calculated from the time when the period
of limitation would begin to run against a suit brought on a similar
contract not registered.

The covenant in the contract of the mortgage-deed of the 3rd April
1882, was that the mortgagees, would pay the money to the mortgagors as
a loan advanced on security of landed property, and, in the absence of any
words or indications to the contrary, that covenant must be taken to mean
that the money would be paid down at the time of the execution of the
document. This being so, the mere withholding of the payment of the
mortgage-money by the mortgagee to the mortgagor would amount to a
breach of contract in writing registered, as in this case, and a suit to recover
the balance would be nothing other than a suit for compensation or
damages caused by the breach of contract. There is really no distinc-
tion between a suit for compensation under these circumstances and
a suit, such as this, in which the mortgagor sues the mortgagees for
[205] obtaining payment of the mortgage-money. The breach of contract
having caused damages, the assessment and the measure of those damages
would naturally be the amount of money contemplated by the covenant,
that is to say, the sum which that covenant mentioned as the amount to
be advanced, together with such other loss as the plaintiff may prove to
have sustained in consequence of the breach of such covenant. This view
is in principle in accord with the rulings of the various High Courts, Vide
Nobocomar Mookhopadhaya v. Sim Mullick (1) ; Vythilinqa Pillai v.
Thetchanamurli Pillai (2) ; Ganesh Krishn v. Madavrav Ravji (3) ; Gauri
Shankar v. Surju (4) ; and Husain Ali Khan v. Hafiz Ali Khan (5).

There remains the second question which relates to the merits,
namely, whether the am ount mentioned as the mortgage-money in the deed
of the 3rd April 1882, was actually paid by the defendants, mortgagees, to
the plaintiffs, mortgagors. Upon this point the learned Subordinate Judge
has expressed his finding in the following, terms :

" In short, the plaintiffs themselves admit the receipt of Rs. 5,801,
out of the said mortgage-money Rs. 9,000, and, after deducting chat,
they claim in this suib Rs. 3,199 as balance of the principal mortgage-
money. Now it is proved from the evidence on the record in this case
that the following items have also been paid by the defendants, thab is
Rs. 150, before the execution of the mortgage-deed for purchasing the
stamp paper of the mortgage-deed and for purposes of registration, &c.,
Rs. 630, which the plaintiffs received from the defendants on the 4th April
1882, and deposited in the Collectorate and Rs 200 paid to Shib Lil on
account of the debt dua from the plaintiffs. Tne total of these three
items is Rs. 980. Therefore the items admitted to have been received and
the items proved amount to Rs. 6,781."



(1) 6 C. 94. (2) 3 M. 76.



(3) 6 B. 75.
128



(4) 3 A. 276. (5) 3 A, 600.



YII] NAUBAT SINGH V. INDAE SINGH 13 All. 207

This finding is not contested by the plaintiffs-respondents in this 1890
Court, and it shows that, even in this suit, their allegation as to the non- JULY 3.

receipt of the mortgage-money was found by the lower [206] Court to be

untrue to the extend of Ks. 980, the payment of which by the defendants APPEL-
was proved to the satisfaction of that Court. As to the balance of Bs. 2,219 LATE
(or rather, to be more accurate, Es. 2,218-9-3) the lower Court has found
that its payment by the defendants, mortgagees, to the plaintiffs, mortga-
gors, was cot satisfactorily established. The main reasons, why the lower 13 A. 200=
Court arrived at this conclusion, are stated to be the non-production of li A.W.N.
a separate receipt by the defendants, and the fact that certain debts due (1891) 8.
by the plaintiffs- mortgagors to other creditors were not paid off. The
Subordinate Judge sums up his conclusions in the following words :

"The Court is of opinion that when the plaintiffs received the mortgage-
deed after it had been registered, the defendants held out a temptation to the
plaintiffs that if the latter made over the mortgage-deed to the defendants
and got the mutation of names effected regarding the mortgaged property by
admitting that the whole mortgage-money had been paid, they would get a
good sum in cash from the defendants out of the mortgage-money. Being
tempted by this, the plaintiffs did what the defendants told them. But
at last there arose a dispute between the parties regarding the possession
and enjoyment of the sir lands, and the defendants did not pay any money
in cash to the plaintiffs, and suits, &c., had to be instituted in the Court
for possession of the mortgaged property. The present suit is the last of
the series of cases which have resulted from all those disputes. I hold
without any hesitation that the defendants have paid only Es. 6,781 6-9
out of Es. 9,000, the mortgage-money. It is by no means proved that
the remaining Es. 2,218-9-3 have been paid by the defendants."

Mr. Conlan for the defendants-appellants argues that these conclusions
are purely conjectural and proceed upon a misapprehension of the
rule of onus probandi as applicable to such cases. The learned counsel has
invited our attention to a passage in Macpherson's work on mortgages
(7th ed., p. 174} where the rule is stated to be that "when a person admits
having executed a written instrument which contains a recital that the
consideration has been [207] received, but seeks to avoid liability by
pleading that full consideration according to the terms of contract
has not been received by him, the proof of such non-receipt rests upon
him, and in the absence of such proof he must be held to the terms of the
document to which he has affixed his signature. The written instrument
is prima facie -evidence that the consideration has been received as recited,
but it is not conclusive, and this prima facie evidence may be rebutted."

This .view is supported by many rulings cited in a foot-note to the
passage, and I have no doubt that the passage lays down a sound doctrine
of law, namely, the broad principle that where a person makes admissions
against his own interest, whether orally or in recitals in written instru-
ments, the burden of explaining away those admissions in order to get rid of
their affect in evidence rests upon him. This, indeed, is a well-established
rule of our law and has received the sanction of the Lords of the Privy
Council in many cases. The rule so far as it relates to admissions con-
tained in deeds, is much less stringent in India than in England ; for
here such admissions are rebuttable, estoppels by deeds being unknown to
our law in the Mofussil. Now what happened in the present case is best
stated by the plaintiff, Indar Singh himself, who was examind as a wit-
ness in this case. The witness said : " The mortgage-deed, dated the
3rd April 1882, for Eg. 9,000, executed by me and my brother BasantBai,

129
A VII 17



13 All. 208



INDIAN DECISIONS, NEW SERIES



[Yol.



1890

JULY 3.

APPEL-
LATE
CIVIL.

13 A 200 =
11 A.W.N.

(1891) 5.



was presented in the registration office on the same day, i.e., the 3rd
April 1882, and was, on my and Basant Eai's declaration, registered in
the tahsil of Chandpur. After the completion of the registration, the
registered mortgage-deed was given to me. I had caused it to be written
in the registration office that the deed might be given to me in order to
enable me to realize the money on delivering the deed. Both I and Basant
Eai made the said statement. I and my brother Basant Eai got the regis-
tered mortgage-deed from the registration office." The witness, after some
prevarication admitted that a portion of the mortgage-money was to be
received in cash from the mortgagees at the time of the delivery of the
mortgage-deed to them. He then [203] went on to say : " When I and
Basant Eai got the mortgage-deed from the registration office, I and Basant
Eai handed ibtoNaubat Singh after about ten or twenty days. I made
statement in the mutation department also, namely, I stated that I had
received the whole amount of the mortgage-money. I did all that trusting
in him," that is, the mortgagee.

It appears to me that this statement is destructive to the plaintiffs'"
case as to the non-payment of the mortgage-money. The mortgage-deed
itself contains an admission as to the full receipt of the mortgage-money,
and that admission is only partially explained by the circumstance that
the plaintiffs asked the registration officer to return the deed to them
after registration, as they would themselves deliver the deed to the mort-
gagees on receiving the mortgage-money from them. The force of this
precaution proves that the plaintiffs were far from being trustful of the
mortgagees as Indar Singh, plaintiff, would have it in bis deposition. This
being so, we find, according to Indar Singh's own evidence, that the mort-
gage-deed was delivered to the mortgagees shortly after the registration.
That was a contingency which, according to the plaintiffs own statement,
was to take place upon receipt of the mortgage-money from the mort-
gagees. Beyond the vague theory of trustfulness there is no explanation
why the plaintiffs, mortgagors, after having expressly stated in the regis-
tration office that they would deliver the deed to the mortgagees on receipt
of the mortgage-money, actualh' delivered the deed to them without
receiving full payment. Nor does the case against the plaintiffs stop here,
for we find that on the 27th April 1982, the plaintiffs, mortgagors,
appeared before the revenue authorities and prayed for mutation of names
in favour of the mortgagees, alleging that they had received full payment
of the mortgage-money. There is no satisfactory explanation why the
plaintiffs did so, if they had not received the mortgage money in full.

The learned Subordinate Judge has not given due weight to the
evidential effect of the plaintiffs' conduct in'delivering the mortgage-deed
to the mortgagees, and in solemnly admitting before the [209] revenue
officer that they had receivd full payment of the mortgage-money. The
Subordinate Judge has accepted the vague and feeble theory of trustullness,
and has rejected the defence as to payment, upon the ground that the
defendants did not obtain a separate receipt for the balance of the mort-
gage-money (namely Es. 2,218-9-3), bub it seems to me that if the theory
is to be accepted it would equally apply even if such a receipt were
produced.

I am of opinion that, under the circumstances of this case, it rested
entirely upon the plaintiffs to prove by cogent evidence that their conduct
in delivering the mortgage-deed to the mortgagees and in solemnly admit-
ting the receipt of the full mortgage-money before the revenue authorities
in the mutation department was explainable on the ground of undue

130



I/ II] NAUBAT SINGH V, INDAR SINGH 13 All. 211

influence, fraud, or other circumstances which would explain away such
conduct. They have not even attempted to produce any such evidence. JULY 3.

On the other hand, the defendants' case as to payment is supported,
not only by the admissions and conduct of the plaintiffs themselves, but APPEL-
by direct evidence. They have produced their karinda or managing agent, LATE
Misri Lai, and also Ganga Ram, the patwari, who both state on oath that CIVIL.
Rs. 2,029-8-0 were paid by the mortgagees, defendants, after settling the
account with the plaintiffs, mortgagors.and that afterreceivingsuch payment 13 A. 200 =
/the latter delivered the mortgage-deed to Naubat Singh, one of the mort- 11 A.W.N.
gagees. The Subordinate Judge has also assigned no reason for disbelieving (1891; 5.
such evidence, and bis judgment seems to have been too much influenced
by the absence of a separate receipt. In my opinion the delivery of the
mortgage-deed to the mortgagee and the plaintiff's admission in the muta-
tion department are quite sufficient to amount to evidence as good as, if
not more cogent than, a separate receipt would have been, and the oral
evidence in the case, taken with the plaintiff's own conduct and admissions,
proves the full payment of the mortgage-money.

It seems to me that the plaintiffs' conduct throughout the disputes
relating to this mortgage has been blameable and prevaricating. In the
former suit they denied the receipt of the mortgage-money [210] altogether,
but it was found that they had received at least Rs. 5,801. In the present
case they admitted the receipt of that sum of money, but denied that they
bad received anything more. Even the Subordinate Judge, notwithstanding
his misapprehension of the burden of proof in this case, found that Rs. 980
had been received by the plaintiffs over and above the sum of Rs. 5,801
which they admitted. This finding the plaintiffs do not dispute in
this appeal, and their case as to the balance of the mortgage-money rests
entirely upon the theory of trustfulness in the mortgagees, which theory,
as I have already said, is feeble, vague and worthless under the circum-
stances of this case. There is only one more point which requires disposal.
In the course of his argument Mr. Amirud-din, on behalf of the plaintiffs-
respondents, contended that, inasmuch as in the former litigation the
Subordinate Judge in his judgment of the llth May 1883, held that only
Rs. 5,801 had been proved to have been paid by the mortgagee, and
inasmuch as that judgment was upheld in appeal by this Court in its
judgment of the 12bh December 1884, the finding in the former case operated
as resjudicata barring the defendants from pleading that any sum of money
beyond that amount was ever paid by them to the plaintiffs as considera-
tion of the mortgage. We intimated in the course of the hearing of this
case that this plea has no force. I have already quoted from the judg-
ment of this Court, dated the 12th December 1884, and it leaves no
doubt that all that was intended to be decided in the former litigation was
whether a portion of the mortgage-money had been paid by the mortgagees
entitling them to possession, and that no definite finding was intended
to be arrived at as to the exact amount which had been advanced by the
mortgagees.

For these reasons I would decree the appeal, and, setting aside the
decree of the lower Court, dismiss the suit with costs in both Courts.

YOUNG, J. The facts of the case have been so fully set forth by my
brother Mahmood, that it is unnecessary for me to say more than that I
fully concur with him in the conclusions at which he has arrived. The
issue of limitation discussed in the former part [?ll] of his judgment
was one which occupied us for some time. I have no doubt thab the suit
is not barred by limitation. But the fact of the plaintiffs' having delivered

131



13 All. 212



INDIAN DECISIONS, NEW SERIES



[Yol.



1890 fcb mortgage-deed to the mortgagees, notwithstanding their clear percep-

JULST 3. tt n ^ na ^ after having done so further payments from tha mortgagees

were not likely to be made, and the fact that only a few days previously

APPEL- the plaintiffs had stated before the registering officer that they would

LATE retain the mortgage-deed till they had received the balance of theconsider-

p VTT ation-money, and further, the fact that the plaintiffs themselves in the

' mutation department clearly acknowledged the receipt of the balance of the

18 A. 200= consideration money, leave in my mind no doubt whatever that the plain-
11 A.W.N. titfs cannot now come into Court and set up an allegation of the non-receipt
(1891) 5. of the consideration-money. It would be impossible for Courts of Justice
to come to any definite conclusions if conduct so unequivocal and ad-
missions so distinct are to be treated as wholly meaningless. For these
reasons I concur with my brother Mahmood, and would dismiss the
plaintiffs' suit and decree the appeal with costs.

Appeal decreed.



13 A. 211 = 10 A.W.N. (1890) 230.

APPELLATE CIVIL.
Before Mr. Justice Young.



BANSI (Judgment- debtor] v. SIKREE MAL (Decree-holder)*
[4th November, 1890.]

Extcution of decree Step-in- aid of execution Application by decree-holder for leave to
bid at sale Act XV of 1887 (Limitation Act), fch. ii, No. 179, cl. (4).

The making of an application by the decree-holder for leave to bid at the sale
in execution of his decree is " a step-in-aid of execution" within the meaning of
ol, (4), No. 179, aoh. ii of the Limitation Act (Act XV of 1877).

[Diss., 23 0. 690 (692) ; P.. 22 A. 399 (400) = 20 A.W.N. 129 ; 21 B. 331 (333) ; R.. 30
C. 761 (769} = 8C.W.N. 251; 10 C.W.N. 209 (214) = 3 C.L.J, 240; 12 C.W-N.
621 ; 8 O.C. 161 (163).]

THE facts of thia case sufficiently appear from the judgment of
Young, J.

Muns.hi Madho Prasad for the appellant,
The respondent was not represented.

JUDGMENT.

[212J YOUNG, J. This is a second appeal against the order of the*
District Judge of Meerut, dated the 14th December 1889, dismissing the
appeal of Bansi, judgment-debtor, appellant, from the decree of the
Munsif of Meerut, dated the 22nd March 1889. The judgment-debtor had
objected to his creditor's taking out execution of the decree, dated the
20th July 1880, and the ground taken was that more than the legal
period had expired between the date of the present application for execution
and the last legal occasion of such execution. It appears that the
first application for execution was made on the 13th April, 1881, while
the second application was dated the 17th February 1885, a period
therefore at nearly four years from the first application for execution.
It is alleged that the second application, that is, the one in 1885, was
time-barred and therefore such proceedings could in no wise form a



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 21 of 155)