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1954 DIGILAW 24 (GAU)

Soraisem Kamini Singh v. Chongtham Iboyaima Singh

1954-05-17

BRIJ NARAIN

body1954
JUDGMENT :- This is a first appeal against the judgment of the learned District Judge of Manipur in a mortgage suit. The facts of the case lie within a short compass and the whole controversy so far as this appeal is concerned centres round the short point as to whether or not the appellants mortgage dues had been paid up before the institution of this suit on 28-7-1949 by means of the writing Ex. D/A. 2. The important facts of the case are uncontroverted and it has not been challenged that Chongthara Iboyaima Singh of Khwai Wahengbam Leikai, defendant borrowed Rs. 4000/- from Soraisem Kamini Singh of Segalambi, Takhellambam Leikai, plaintiff on 28-1-1949 at 3 per cent. per mensem, vide Ex. P/A and a double-storied (shop) building situated in No. 145/36 Imphal Town Fund, was mortgaged in this deed. The plaintiff alleged that nothing had been paid towards the principal or interest and so the suit which has given rise to this appeal, was instituted on 25-1-1951 for recovery of Rs. 5678-as. 10-ps. 8 along with costs and pendente lite and future interest, etc. 3. The defence was that Rs. 2000/- had been paid within 5 months of the execution of the mortgage deed in question and Rs. 2120/- were paid to the plaintiff on 28-7-1949 and only Rs. 600/- remained due on the defendant on account of interest and the plaintiff gave the writing Ex. D/A on this occasion. The learned District Judge accepted the defendants contention and decreed the suit for Rs. 600/- only and so the plaintiff has come to this Court in appeal. 4. Soraisem Kamini Singh, plaintiff, admitted in his cross-examination that he had written out Ex. D/A but later on he denied this fact. The learned District Judge inferred from this denial that the entire case put forward by the defendant was correct. It has been contended by the learned counsel for the appellant that the writing Ex. D/A was inadmissible in evidence as it should have been registered. This argument does not find support from S. 17, Indian Registration Act, nor from any ruling of any High Court. It has been contended by the learned counsel for the appellant that the writing Ex. D/A was inadmissible in evidence as it should have been registered. This argument does not find support from S. 17, Indian Registration Act, nor from any ruling of any High Court. In - Digambar Das v. Harendra Naraian, 14 Cal WN 617 (A) it has been laid down that the creditor may accept an amount tendered in part payment if the debtor does not make it a condition that the tender is to be in discharge of the whole. It was held in - Ram Kirpal v. Baleswar Choudhury, AIR 1941 Pat 246 (B) that it was open to the mortgagor to rely on evidence other than the endorsements on the mortgage bond such as a receipt signed by the mortgagee or his agent even though the mortgage deed contained a stipulation that the only evidence which the parties could rely upon in support of any payments made in satisfaction of the mortgage debt would be payments endorsed on the mortgage deed itself. As such there is no justification for holding that any writing about any part payment towards the satisfaction of a mortgage debt must be registered and so I think the writing Ex. D/A which was admitted by the plaintiff, was properly accepted in evidence in this case vide also - Amar Singh v. Mt. Ram Dei, AIR 1925 All 802 (C); - Satyabadi Behara v. Mt. Hirabati, 34 Cal 223 (D); - Jagat Tarini Dasi v. Naba Gopal, 34 Cal 305 (E); - Valayuda Naicker v. Hyder Hussan Khan Sahib, 33 Mad 100 (F). 5. The next question which is also very material for the decision of this case is whether Ex. D/A establishes or not that the entire principal mortgage money has been paid up. The document Ex. D/A runs as follows : "The amount of Rs. 600/- taken by Sri Chongtham Iboyaima Singh is the interest for six months up to 28-7-1949". The plaintiff has admitted in cross-examination that he gave a deed (Ex. D/A) to the defendant saying that Rs. 600/-being interest up-to-date was received by him. The learned District Judge after taking into consideration these two admissions and after observing that the demeanour of the plaintiff was very suspicious came to the conclusion that Rs. 4120/- had been paid up and only Rs. D/A) to the defendant saying that Rs. 600/-being interest up-to-date was received by him. The learned District Judge after taking into consideration these two admissions and after observing that the demeanour of the plaintiff was very suspicious came to the conclusion that Rs. 4120/- had been paid up and only Rs. 600/- remained due on the defendant. 6. The defendant examined himself and he produced Thowdam Bolaram Singh witness. The defendant admittedly did not take any receipt on the first occasion when Rs. 2000/- are alleged to have been paid by him within 5 months of the execution of the mortgage deed and on the second occasion also when the defendant paid up the entire principal mortgage money and Rs. 120/- as interest, the defendant did not get these facts mentioned in Ex. D/A. Thowdam Bolaram has stated that Rs. 2120/- were paid 15 days after the first payment but the defendants statement shows that the first payment was made on 28-5-1949 and the second on 28-7-1949. The defendant had not named Thowdam Bolaram as his witness before whom the alleged payments were made and as this witness is a co-worker of the defendant in a contract business, he cannot be deemed to be impartial. Thowdam Bolaram says that he had asked the plaintiff as to why was not the deed destroyed as the loan was being repaid, but the defendant did not make any such statement. Thowdam Bolaram does not state that the payments made before him were regarding the dues of the mortgage deed in suit and as he did not see the plaintiff writing out Ex. D/A nor did he hear any talk about its execution, it seems very difficult to accept his statement at its face value. As such it becomes very difficult to hold that statements of these witnesses go to substantiate the defendants contention. 7. D/A nor did he hear any talk about its execution, it seems very difficult to accept his statement at its face value. As such it becomes very difficult to hold that statements of these witnesses go to substantiate the defendants contention. 7. Section 17 of the Indian Evidence Act defines an admission as follows : "An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Sections 18 to 20 mention that statements made by a party to the proceeding and other persons, under circumstances mentioned therein are admissible while S. 21 lays down that admissions are relevant and may be proved as against the person who makes them or his representative in interest. Section 31, Evidence Act, clearly lays down that admissions are not conclusive proof, of the matters admitted but they may operate as estoppels under the provisions hereinafter contained. 8. If the contents of Ex. D/A are carefully examined it becomes clear, if plain grammatical meaning is given to the words used, that this document merely shows that Rs. 600/- had become due on the defendant as interest for six months up to 28-7-1949 and it does not show that any sum had been paid. Even if it had been mentioned that something had been paid, the plaintiff could under Ss. 31, 95 to 97, Evidence Act, contend that the admission was not conclusive and some money had been paid about any other deed. Thus there seems to be no justification for holding that Ex. D/A proves that the sum of Rs. 4120/- had been paid up by the defendant. Every admission should be given plain, literal and fair meaning and its scope should not be widened or restricted on the basis of suspicions or surmises, but in this case a finding has been given to the effect that Rs. 4120/- had been paid through Ex. D/A, on mere suspicions and surmises which is not justified. 9. The admission of the plaintiff during the course of cross-examination, no doubt, clearly shows that Rs. 600/- had been paid to him towards interest when he wrote out Ex. D/A and so it can be safely held that this sum was actually paid. No other point has been pressed before me. 10. 9. The admission of the plaintiff during the course of cross-examination, no doubt, clearly shows that Rs. 600/- had been paid to him towards interest when he wrote out Ex. D/A and so it can be safely held that this sum was actually paid. No other point has been pressed before me. 10. The plaintiff is, therefore, entitled to a decree for Rs. 5078-Rs. 10- ps. 8 only along with interest pendente lite at one per cent, per mensem and future interest at 6 per cent per annum. The rest of the claim stands dismissed. The parties will get and pay costs according to their success and failure. The appeal is, therefore, allowed to the extent indicated above. 11. A preliminary decree under O. 34, R. 4, Civil P.C., be prepared with six months period for payment. Appeal partly allowed.