Gauranga Mohanty vs Radhaballav Math and Another

R.N. Misra, J.—The sole Defendant is in appeal against the decree for recovery of money passed by the learned Additional Subordinate Judge of Puri.

Radhaballav Math Endowment through its Executive Officer filed Money Suit No. 369 of 1965 for recovery of Rs. 8, 160/. on the basis of two promissory notes. According to the plaint story, Defendant borrowed Rs. 2,0001- on 18-11-1962 and again borrowed Rs. 1,000/ - on 2-12-1902. Both the loans were supported by promissory notes. Mahant Radhacharan Das who had given the loans died on 19-3-1963. As there was a dispute regarding succession, the management of the Math was taken over by the Commissioner of Endowments and an Executive Officer was posted to look after the affairs of the institution. The Mahant had not made any disposition in regard to the suit loans and, therefore, the Math became entitled to recover the dues. Soon after Mahant died, a chaotic condition prevailed for some time and taking advantage of the situation the Defendant got the promissory notes torn and had thrown them away:within the Math compound. Defendant was, therefore, prosecuted and the promissory notes were exhibited in the chemical case.

Defendant in his written statement admitted the loans but claimed that they were out of personal funds of the Mahant and, therefore, the Math had no right to sue. The Mahant had left behind a chela by name Krushnachandra Das and if at all, it was he who could recover the money. It was admitted that the loans had been incurred from the Mahant Radhacharan Das but it was pleaded that three days before his death repayments had been made and the Mahant tore away the promissory

The learned Trial Judge framed six issues in all, of which Issue No. 3 was regarding Plaintiff''s locus standi to maintain the suit; Issue No. 4 was as to whether the suit was hit by the provisions of the Orissa Money-Lenders Act ana its Rules and Issue No. 5 was as to whether any amount was due from the Defendant. The learned Trial Judge found that the suit was maintainable and was not hit by the provisions of the Money-Lenders Act and its Rules and that the entire amount as claimed was due from the'' Defendant because he had failed to establish repayments,

In the memorandum of first appeal, the Defendant-Appellant added Mahant Krushna Chandra Das as Respondent No. 2 and made an application for deletion of the name of the Executive Officer on 14-5-1970. At his instance by order No. 7 dated 24-6-1970, the name of the Executive Officer representing the Endowment was deleted and Respondent No. 2 was directed to represent the Math. In the meantime, the succession to the Math has been settled by a decision of this Court in the case of Krushna Chandra alias Charan Das v. Commissioner of Endowment and Ors. 1975 (2) C.W.R. 903.

The Mahant having died without making any disposition regarding the two promissory notes even if the loans were out of personal funds, the Math becomes entitled to it. In the case of The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., , the Court has laid down:

Section 55 deals with a Mahant''s power over Pathakanikas or personal gifts. Ordinarily a Mahant has absolute power of disposal over such gifts, though if he died without making any disposition it is reckoned as the property of the Math and goes to the succeeding Mahant...

The same view has been reiterated by a Bench of this Court in the case of Mahant Srinivas Ramanuja Das v. Suryanarayan Das and Anr. I.L.R 1962 Cutt 903. In view of this position and particularly in view of the fact that now the successor Mahant has come to be appointed and he is deemed to be the Plaintiff, the question of locus standi no more remains in dispute. In the trial Court, there has been a clear finding that Plaintiff has complied with the provisions of the Money-Lenders Act. No challenge has been raised on that ground at the time of hearing.

Defendant admitted the loans and raised the defence of repayment. Burden to establish repayment admittedly lay on him. The learned Trial Judge after dealing with the oral evidence has concluded saying:

.... In view of the unsatisfactory nature of the evidence of the two d. ws. the Defendant''s plea of payment can hardly be believed. I, therefore, hold that the Defendant has failed to establish the story of the payment....

The only question that has really to be examined in the first appeal is whether the Defendant has been able to establish the plea of repayment.

Before proceeding to assess the evidence, I may dispose of a contention relating to drawing of adverse inference. In the trial Court, an application was made by the Defendant on 19-1-1968, requiring production of certain records. Therein the following documents were called for

(i) Money-lender''s account from 1950 to. 1962 of Mahant Radhacharan Das.

(ii) Money-lending licence.

(iii) The roked of income and expenses from 1959 to 1962.

(iv) A list of properties of the Math from 1959 up to 1962.

(v) A list of private properties of the Mahant Radhacharan Das.

(vi) Agricultural income tax account of late Mahant Radhacharan Das.

(vii) List of documents seized by the police on 19-3-1963 and

(viii) The power-of-attorney executed by the late Mahant Radhacharan Das in favour of Dhaneswar Mahant.

All these documents seem to have been called mainly for the purpose of proving that the loans were out of personal funds of the deceased Mahant and not from the assets of the Math. It was not the case of the Defendant that when he repaid the money as alleged by him, an entry was made in any book of account. The Defendant No. 2 as d.w.2 has stated:

I have repaid Rs. 6850/ - in cash to Mahant Radha Charan on 16-3-1963 in full satisfaction on the terms of amicable compromise towards the three loans incurred by me from him. The late Mahant voluntarily agreed to give up Rs. 23.12.0 out of his dues from me. The three hand notes were torn into pieces in my presence by the Mahant after the payment. The Mahant directed Bhajani Padhan, the servant of the Math, to throw the torn pieces at the backyard of the Math. Accordingly the torn pieces were thrown by Bhajani at the backyard.

I maintain accounts of my income and expenditure in regular course of business. The repayment of Rs. 6850/ - has been mentioned by me in my account book. The entry dated 16-3-1963 in the account book is marked Ext. A.

In paragraph 12 of his deposition, in cross-examination, he has also admitted:

I do not know as to whether he (Mahant) kept any note of the payments made by me.

It is clear, therefore, from the evidence of the Defendant himself that while he made an endorsement in his book, it is not his case that the Mahant had any endorsement made in his accounts regarding the repayment. When the issue is one of repayment and it is not the Defendant''s case that there was an entry by the

I Mahant or under orders of the Mahant by any of his agents evidencing repayment, the accounts cease to be relevant and nonproduction of accounts would not justify drawing of any adverse inference.

Undoubtedly, as claimed by Mr. Misra for the Defendant-Appellant, if relevant evidence was withheld, even if the burden of proof did not lie on the Plaintiff, the Court could draw an adverse inference on the basis that an important document in possession of the Plaintiff which would have thrown light on the facts at issue had been withheld. That was indicated to be the law in the case of Murugesam Pillai v. Gnana Sambandha AIR 1917 P.C. 6. Lord Shaw speaking for the Board observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; hut with regard to the parties to the suit it is, in their Lord ship''s opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition....

Lord Shaw''s observations have been quoted with approval by their Lordships of the Supreme Court in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, . In the facts of the case, however, in my view, Mr. Misra is not entitled to ask for drawing of adverse inference because as I have already pointed out there is no duty on a litigant to produce documents in respect of which parties are not at issue and adverse inference is drawable only where a relevant document which would throw light on a point in controversy is withheld. When the only question in controversy is as to whether there has been repayment as alleged by the Defendant and it is not the Defendant''s case that there was an entry acknowledging repayment on the other hand from the evidence of d.w.2, Defendant himself, it would appear that there was no such entry no adverse inference need be drawn at all.

The evidence in support of repayment may now be considered. Defendant has examined one Narayan Das (D.w.1) who was a previous employee of the Math under Mahant Radha Charan Das; himself as d.w.2 and an inmate of the Math from 1959 till 1963 as d.w.3.

D.w.1 has stated that three days prior to the death of Mahant Radhacharan Defendant repaid Rs. 6, 850/ - in his presence and after the repayment the Mahant got two hand-notes torn and handed over to one Bhajani Padhan, an employee of the Math, to throw the same in the backyard of the Math. This witness has further stated that the Mahant made a tipa of the dues paid by the Defendant in his handwriting and passed it on to the Defendant. The tipa has not been produced. While in the evidence-in-chief, the witness referred to two hand-notes being torn, in his cross-examination he has stated that three promissory notes were torn into pieces. The witness is not able to recollect having seen ''I..,; any other repayment.

D.w.2 is a lawyer''s clerk and according to him he had dealings with the Math for twenty years. Bhajani Padhan, an employee of the Math, had witnessed repayment and though living he has not been examined. D.w.2 has admitted that he had rushed to the Math immediately on receiving information about Mahant''s death. His presence in the Math premises soon after the death is admitted. D.w.2 being an Advocate''s clerk, when repayment was made and the promissory notes which were

valuable securities were no more to be held by the Mahant, would have in the normal course insisted upon returning the documents to him. It was open to him to keep them or to destroy them. The documents being torn by the Mahant and being asked to be thrown into the backyard seems to be a very unusual process. On the other hand, this unusual process is rather suggestive of there being truth in the Plaintiff''s stand that the documents had been removed under suspicious circumstances.

The next witness to support repayment is d.w.3. He has also stated that the police seized some torn documents from the backyard of the Math. In paragraph 5 of his cross-examination, he has dearly stated:

.... The Mahant returned the hand-notes. Bhajani, the Math servant was only present. I do not remember if Dhani Babu (p.w.1) was also present.

D.w.3''s evidence shows that the promissory notes were returned and not torn. His evidence excludes the presence of d.w.1. In the criminal case, this witness had also deposed and therein he had admitted presence of p.w. 1 and at both stages d.w.1''s name was not mentioned. It would, therefore, follow that d.w.1 was not a witness of repayment according to d.w.3.

In view of this inconsistency and the contradictory evidence, I am not prepared to reverse the finding of the trial Court that Defendant has not proved repayment. On the other hand, judged by normal human standards, Plaintiff''s case seems to be true.

The first appeal has no merit and is accordingly dismissed. Plaintiff shall have his costs in the trial Court. There would, however, be no decree for costs in this Court.