TMI Blog1958 (1) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Venkata Ratnamma executed an assignment in favour of the same Nagapotrao authoring him to collect the money due under the mortgage bond in her favour. The three villages which were subject to mortgage were brought to sale in execution of simple money decree against Raja Bommaara Naganna Naidu the original mortgagor they were purchased all the Court auction act to the mortgage by three persons. Bollapadu was purchased by one Nagayya, Appikatla by one Jaldu Venkata Subba Rao Velpore by one Nageswar Swamy for the Jaldu Venkata Subba Rao the said Nageswar Swamy being Venkat Subba Rao's clerk. Nagapotharao the assignee of the montage's re-assigned his rights in favour of the present plaintiff by means of a document the 6th, April, 1945, being Ex. A-3 in the for a consideration of ₹ 32,000/-. plaintiff has now brought this suit on the basis he assignment in his favour for the retry of the amount due under the mortgage her with interest accrued due thereon. plaintiff has prayed for a decree for a of ₹ 16,131-8-0. (b) To this suit the following persons made parties. The original mortgagor As defendant No. 1. As the original mortgagee Lanka Venkata Ratnamma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants 4 and 5 ceased to have any interest in the estate as defendant No. 12 became entitled to the properties. They were therefore, discharged. 3. The statement of defendant No. 6 the clerk of Venkata Subba Rao was only formal to say that the village of Velpore was purchased only benami in his name for Venkata Subba Rao. Defendant 8, the widow of It was also stated in the petition that there was no endorsement of any payment on the document and that alone was sufficient to hold that there was no discharge of the mortgage debt. This petition was strongly opposed by the other side. Finally after hearing the arguments of both sides we allowed the document to be filed subject to payment of costs to the other side. After this the appellant herein made an application to the Court that view of the reception of this additional evidence it was necessary to send for the will of the late Jaldu Venkata Subba Rao, for that would show that at the time of the said will the debt alleged to be due to the 3rd respondent was not subsisting. He therefore, prayed that a registered copy of the will executed by Jaldu Venkata Subba Rao might be allowed to be produced and filed in Court. It was sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the leading of a secondary evidence only where the original has been destroyed or lost. There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him. In this case a mere statement was made that it was sent to defendant 5 for the making up of accounts. Defendant 5 has come into the box and denied this allegation. Beyond a statement no evidence has been led to prove when the document was sent how long it was with him and why the document was not taken back after the work was over. If it was sent to defendant 5 then the story of its having been mislaid or lost is certainly false. No doubt permitting a party to lead secondary evidence being satisfied about the loss the original is a matter of discretion left to the trial Court and the appellate Court would not ordinarily interfere with the exercise of such discretion. That is the principle that has been laid down by the Privy Council in Srimati Rani Haripria v. Rukmani Debi, 19 Ind App 79 (PC) (A). But where the trial Court has come to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative plea of payment cannot amount to an admission of the execution of the document. Here also in our opinion the lower Court has fallen into an error in relying upon the statement in the written statement of defendant 8 as amounting to an admission of the execution of the mortgage. 7. Sec. 65 of the Evidence Act cannot be invoked where a party being in possession of the document does not produce it as in this case where the document not having been produced at all the relevant periods has been sought to be ushered in at the stage of the arguments in this court, producing it from his own possession. It would be useful in this regard to refer to the observations of the Privy Council in the case of Hira Lal v. Ganesh Pershad, 9 Ind App 64 (PC) (B). Their Lorships say. If the plaintiff had the original and did not produce it in the Court below his case was not proved because it rested almost entirely on the Ikrarnama here being to evidence of the contents of the deed of sale but to accept secondary evidence of the document which was in the plaintiff's custody without looking at the original seems to their Lordships to be an extraordinary course. A party ought not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be minor legal representatives of Venkata Subbarao. 9. A mere production of the mortagage deed is not enough to fasten any liability parties who are not the executants of the document. Even if the document had been deduced along with the plaint the plaintiff would not be relieved of the burden of proving the document as required by law to title him to a decree on the basis of the document. S. 68 of the Evidence Act says that execution of a document required by law the attested by witnesses can only be proved calling at least one attesting witness. The mortgage bond therefore, could be properly by calling an attesting witness this could be dispensed with only where the execution is admitted or has not denied. The rule enacted in S. 68 of Evidence Act is so stringent and mandatory that even in a case where the document is and secondary evidence is allowed to be the formality of an attesting witness being called has to be observed. Failure to call as witness any of the attesting witnesses where it is not established that all them are dead or were incapable of giving evidence is a fatal defect and a document is not be held to have been proved. P. W. the clerk of defendant 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no cordial relationship between the 3rd defendant and his in-laws party. Therefore, this statement in the will to the effect that there are no debts due by the estate is very significant. It is in evidence that the defendant No. 3 borrowed large sums of money from the estate and repaid them. During all this period defendant No. 3 never told the other executors that his borrowings may be adjusted towards the debt due to him under the foot of the mortgage. Defendant No. 13's reticence and his inconsistency do justify the Court drawing an inference that the debt could not be subsisting. This circumstance highly improbablises the fact of the debt under the mortgage being still subsisting. We may also advert to another important circumstance and that is that two of these very villages which were mortgaged to Nagapota Rao were given over to Nagapota Rao's daughter i.e., the grand-daughter by Jaldu Venkata Subba Rao by means of the testamentary disposition that he made. If really there was a mortgage subsisting on these villages he would have mentioned about it further he is not likely to have bequeathed an encumbered property. It is rather strange that Nagapot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
