TMI Blog1950 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... stipula- tion to pay the mortgage money within one year from the date of the bond. The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mortgagor or his succes- sor towards the mortgage dues and the plaintiff claimed the principal amount of ₹ 5,500 together with interest at the rate of 9 per cent. per annum up to the date of the suit. A number of pleas were taken by the contesting defend- ant in answer to the plaintiff's claim, most of which are not relevant for our present purpose. The substantial contentions raised by the defendant were of a three-fold character. In the first place, it was urged that the document sued upon was not a properly attested or valid- ly registered document and could not operate as a mortgage instrument in law. The second contention raised was that there was no consideration in support of the transaction, at least to the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to dis- place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(Vide Lord Atkin s observations in W.C. Macdonald v. Fred Latinmer, AI.R. 1929 P.C. 15, 18.). The gist of the numerous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas [1947] A.C. 484. at p. 486, and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court (Vide Saraveeraswami v. Talluri, A.I.R. 1919 P.C.p. 3'2). The observations are as follows: But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the principal witness on the side of the defendatnt. He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace. The draft was prepared under instructions from Bhikhi Ram, the mortgagee. and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared. After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken-by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature. After obtaining the Raja's signature, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collectorate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari. They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja. As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal. According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court that the trial Judge, when he found the defendant's story to be improbable, should have considered whether or not there were improbable features in the plaintiff's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant's case was unreliable. These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff's story as narrated by him and his servant is improbable and not worthy of belief. In our opinion, the High Court's approach to the case has not been proper and its findings are unsupportable on the materials in the record. Here was a case where the controversy related to a 'pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transac- tion. The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition. It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the plaintiff's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff's father was a party. It was qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s really inconceivable that an old-and experienced deed writer like him did not know the requirements of proper attestation. On his own evidence he had attested numerous documents and he could not recall. a single instance where he signed the document in such manner as he did in the present case. The' way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal's evidence does not appear to be satisfactory. The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over-confidence is not relevant and need not be taken seriously. Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja's Kot after the document was executed. Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted. Why Harbha- jan Lal did go over to the defendant's side is a question which may not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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