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Judgment
Pandrang Row, J.—This is an appeal from the decree of the Court of the Subordinate Judge of Bellary dated 28th February, 1933, in O.S.
No. 5 of 1932, a suit for recovery of possession of certain lands and for redemption of certain mortgages. There were three mortgages, one of
1917 for Rs. 800, another of 1920 for Rs. 2,850 and the third one of the same date as the first for Rs. 1,400. The lands included in the mortgages
were different. Over and above the lands included in these mortgages, two survey numbers, 53 and 71, were alleged to be in the possession of the
defendant under a certain arrangement whereby he was to be in possession for 13 years in lieu of a sum of Rs. 700 due to him. The plaintiffs
pleaded that they had discharged all the three mortgages and also the debt of Rs. 700 and they produced three receipts, Exs. A-1, A-2 and A, in
support of their allegation. These receipts amounting to Rs. 5,700 were relied upon by the Court below in support of its finding that the payments
alleged in the plaint were true though the lower Court was clearly of opinion that, but for these receipts, there was no satisfactory evidence of the
payments. The execution of these receipts was admitted by the defendant but he alleged that he executed them at the request of the plaintiffs
nominally with a view to assist the cause which was pending before the Board of Commissioners for Hindu Religious Endowments which had
threatened to remove the plaintiffs from the trusteeship of the Mylar temple unless they paid off the debts due on the mortgages and recovered
possession of the properties which had been mortgaged and which really belonged to the trust. The defendant also relied on Ex. VI, a letter, which
was said to have been executed in his favour by one of the plaintiffs three days after the date of Ex. A, the receipt for Rs. 3,000 in which it was
admitted that that receipt was executed out of confidence and nominally for the purpose of being produced before the Board. In short, the
defendant''s contention was that the receipts relied upon by the plaintiffs were executed nominally and did not evidence actual payments. It was
further contended that these receipts, and especially Exs. A and A-2, were not admissible in evidence by reason of the provisions of Sections 17
and 49 of the Registration Act.
The main point for consideration in this appeal is whether the receipts in question are admissible because the learned Subordinate Judge who
heard the oral evidence was clearly of opinion that, in the absence of the receipts, it would not be possible to find that payments had been made.
We have been taken through the oral evidence ourselves and we are also of the same opinion, namely, that the oral evidence on the side of the
plaintiffs to prove the alleged payments is worthless and cannot be made the basis of a finding in plaintiffs'' favour if it is found that the receipts are
inadmissible or that they were executed nominally.
So far as Exs. A-2 and A are concerned, they purport to put an end to the mortgage rights and therefore they do not come within the exception
embodied in Section 17(2)(xi) of the Registration Act. If follows therefore that these two receipts are compulsorily registrable u/s 17(1) of the Act.
Section 49 provides that no document required by Section 17 to be registered, shall be received as evidence of any transaction affecting any
immovable property referred to therein. These receipts can be relevant only as evidence of payments of mortgage-debts either in full or in part.
Otherwise they would be irrelevant-And if they are relevant only for proving payments of the mortgage-debts, they certainly would affect the
mortgage-debts by reducing them considerably. In these circumstances, it is impossible in our opinion, to contend that Section 49 does not stand in
the way of the plaintiffs relying on these receipts as evidence of payment of the mortgage-debts in question. These two receipts, Exs. A-2 and A
must, therefore, be excluded from the evidence and the result of this exclusion is, as indicated above, fatal to the plaintiffs'' case, for the remaining
evidence is unacceptable. It is unnecessary to go into the details to the oral evidence relating to the alleged payments because the learned
Subordinate Judge who heard the evidence himself has said in so many words that it is very unsatisfactory. Apart from this, there is Ex. VI, which,
no doubt, has been rejected by the learned trial Judge as not having been proved satisfactorily; but we are of opinion, after going through the entire
evidence that Ex. VI is a genuine document and cannot be rejected. The circumstances clearly show that Ex. A, in any case, must have been
executed nominally, and that no money could have been paid at the time. It is however unnecessary to base our decision on Ex. VI because we
have found that Exs. A-2 and A cannot be admitted in evidence and in their absence the remaining evidence about the alleged payments is quite
unsatisfactory. We therefore rind that the payments to which Exs. A-2 and A relate, namely, the alleged payment of Rs. 700 on 12th July, 1928,
and the alleged payment of Rs. 3,000 on 6th December, 1930, are not true.
Then remains the other receipt, Ex. A-1. It is not seriously contended that this is excluded by Section 49 of the Registration Act. Even apart
from it, the evidence afforded by the defendants'' own account, Ex. XI-A, and his own report, Ex. B, sent to the Hindu Religious Endowments
Board in June, 1928, shows beyond doubt that there was a sum of Rs. 2,000 paid in October, 1928, in respect of the mortgage, Ex. II. The
defendant made some attempt during the trial, to show that this payment which he could not deny, was made in respect of some other transaction,
namely, the amount which was due to him according to the composition scheme in his capacity as surety for the plaintiffs and in respect of which it
was agreed at one time that Survey Nos. 47, 48 and 49 should be in his possession for a number of years and which it was later on decided to
abandon as the person already in possession as a usufructuary mortgagee, D.W. 1, was willing to pay the Rs. 2,000 on condition of his being
allowed to continue in possession for a longer period. D.W. 1 also supported this version, namely, that the amount was paid by him to the plaintiffs
who paid it to the defendant. This story is however contradicted by the defendant''s own account and his report made to the Religious
Endowments Board, Exs. XI-A and B. There is no other evidence of the alleged liability of the plaintiffs on some other account to pay this Rs.
2,000. The matter is really put beyond doubt by the entry in the defendant''s own account. No attempt has been made to explain away this entry
which clearly shows that the sum of Rs. 2,000 which was paid in October, 1926, was in respect of one of the suit mortgages, namely, Ex. II. The
defence, so far as this payment of Rs. 2,000 is concerned, appears to be an afterthought and, so far as this payment is concerned, we accept and
confirm the finding of the learned trial Judge.
There is a memorandum of cross-objections which has no substance. Very little has been said to us about it and it is enough to dismiss it with
costs without further discussion.
It follows from what we have said that the appeal must be allowed in part and the decree of the lower Court varied in accordance with our
finding, that is to say, the plaintiffs will be entitled to recover possession of the properties mortgaged under Ex. I, on payment of Rs. 800, of the
properties mortgaged under Ex. II, on payment of Rs. 850 and of the properties mortgaged under Ex. III on payment of Rs. 1,400. Time for
redemption is fixed at six months from this date. The decree of the lower Court so far as it relates to Survey Nos. 53 and 71, is set aside and the
defendant-appellant will be entitled to recover possession thereof, by restitution, if necessary. As this appeal succeeds in part and fails in part, the
parties will bear their own costs in this appeal and in the Court below.