Salah Bin Ahmed vs Abdullah Bin Ewaz Hamidan

Abdullah Bin Ewaz is the owner of the house No. 635/533 situate in Rakab Gunj, Hyderabad which is also known by the name of Hafiz Munzil. On the security of this house he borrowed O.S. Rs. 3000/- on different dates and executed mortgage deeds respectively dated 14th Amardad 1344 F. and 23rd Thir 1345 F. in favour of the lender Salah Bin Ahmed. The mortgages being of usufructuary character, there was a lease back to the mortgagor evidenced by two separate rental agreements.

On 6th Azur 1351 F., Salah Bin Ahmed instituted the suit out of which this appeal arises for recovery of the principal amount advanced as loan under both the mortgages by sale of the hypothecated property and for Rs. 720/- as arrears of rent due under a third rental agreement alleged to have been executed by the mortgagor on 24th Farwardi 1353 F replacing the two earlier rent notes.

Abdullah Bin Ewaz in his written statement admitted the execution of the mortgage deed and of the two earlier rental agreements but categorically denied that he ever passed the third one. As regards the principal debt, he pleaded repayment thereof on 25th Shahrewar 1348 F., and further alleged that nothing was due to the Plaintiff on account of rent.

In elaboration of the facts culminating in full satisfaction of the mortgage debt, he stated that he had brought and succeeded in a suit for possession and mesne profits of Hafiz Munzi on the Original Side of the High Court against one Ahmed Bin Ewaz. In execution of the decree, the judgment-debtor deposited Rs. 4900/- on account of mesne profits but remained unpaid by reason of its attachment ordered by the Nazini of Darul Qaza in another suit pending between Amena Bi and the Defendant.

On the latter application, the Nazim permitted the amount to be withdrawn on condition that he furnished security therefor. The Plaintiff, it was said, stood surety which fact enabled the Defendant to withdraw the amount and repay the mortgage debt on the date aforementioned. Tile further averment on the part of the Defendant was that as the Plaintiff had stood surety he retained the mortgage and rental deeds as ''amanat'' in evidence whereof lie wrote the document Ex. Alif (1) on 2nd Aban 1348 F.

The retention by the Plaintiff of the mortgage and rental deeds even after 15th Dai 1351 F, when the Court of Darul Qaza discharged him of his suretyship was attributed to the good and cordial relations, existing between the parties. In regard to the rental agreement of 24th Farwardi 1353 F. the defence was that it has been brought into existence to countervail the probative effect of Ex. Alif (1).

In the replication that followed, the Plaintiff denied that any sum either in payment of mortgage debt or on account of rent was ever paid to him by the Defendant on 25th Shahrewar 1348 F. He, however, admitted that on the promise of the Defendant to pay the mortgage debt, Ex. Alif (1) was written but as no payment was made the document was torn and thrown away in a twisted form. The same document in a pasted form had been produced to bolster up a false reply.

It was contended that had the mortgage debt been paid and tile liability to pay the rent had ceased on 25th Shahrewar 1348 F. the Defendant would not have executed the third rental agreement on 24th Farwardi 1303 F.; he would have effectively protested and taken proper steps when he found that the Plaintiff, while appearing as a witness on his behalf in Amena Bi''s suit, had deposed on 27th Shahrewar 1350 F., that the sum of Rs. 3000/- representing the mortgage debt had uptill then remained unpaid; he would have sent a prompt reply denying his liability for the suit amount when he was called upon by the Plaintiff''s notice of 12th Meher 1356 F. to pay the mortgage debt and the arrears of rent, lastly he would not have taken several adjournments to file his written statement when the defence consisted of the plea of repayment supported by the admission thereof in Ex. Alif (1).

These pleadings led to the framing of the following issues:

(1) Whether Rs. 3225/- were paid to the Plaintiff on 25th Shahrewar 1348 F.

(2) Whether the document filed by the Defendant i.e., Ekrarnama dated 23rd Shaban 1358 A.H. (1st of Azur 1349 F.) was inadmissible in evidence for want of registration.

(3) In cases the ekrarnama dated 23rd Shahban 1358 A.H. is held admissible in evidence what is its effect upon the suit.

(4) Whether the documents filed along with the replication are admissible in evidence.

(5) Whether the suit can be decreed for the mortgage debt and rent claimed.

(6) Whether the rental agreement dated 1st Rabi II 1336 A.H. (24th Farwardi 1353 F.) was executed by the Defendant.

(7) To what relief, if any, the Plaintiff is entitled.

The Defendant felt that the first issue was redundant in view of the fact that the Plaintiff had admitted the preparation if not the execution of Ex. Alif (1) and alleged its subsequent tearing by reason of non-payment of the money promised to be paid Therefore he applied on 22nd Khurdad 1357 F. for the omission of that issue to be replaced by an issue in terms of the Plaintiff''s allegation. The trial Judge disallowed the application by his order of 1st Amardad 1357 F. The Defendant took the matter in revision. The High Court found nothing prima facie wrong with the order of the trial Judge and dismissed the revision by its judgment of 19th Azur 1358 F.

The trial Judge in the meanwhile took up the second issue as to the inadmissibility of the document for want of registration for decision and by his order of 24th Shahrewar 1357 F., gave his ruling in favour of the Defendant. Aggrieved by that order, the Plaintiff filed an application in the High Court for revision. The High Court, however, found itself in agreement with the interpretation put by the trial Court on the impugned document and refused to interfere in the exercise of its revisional jurisdiction.

As a result of the decision of the High Court pronounced on 19th Azur 1358 F., the Defendant had to lead evidence in the first instance to prove the alleged payment of the mortgage-debt on 24 th Shahrewar 1348 F., Consequently, the Defendant appeared as a witness on his own behalf on 15th Isfandar 1358 F., and produced Syed Ahmed Tirmizi, Aiez Bin Salemain, Dr. S.S. Popeley and Da''ud Bin Mustafa. In rebuttal of the evidence adduced on behalf of the Defendant and to discharge the burden laid upon him by issues Nos. 5 and 6, the Plaintiff produced his son, Ahmed Bin Salah, Ahmed Bin Muhammad, Abbas Khan, Sharfuddin, and Nasrulla Khan.

The trial Judge did not attach much importance to the evidence adduced in proof of the alleged repayment of the mortgage debt inasmuch as in his view that fact would stand established if the Plaintiff failed in proving his version as to why Ex. Alif (1) was executed and attested by witnesses and then subsequently torn, and thrown away for failure to keep the promise to repay the full amount due under the mortgage deed. He, therefore, confined his attention exclusively to the consideration of that question and came to the conclusion that the probabilities of the case arising from the evidence were in favour of the Defendant and on that finding dismissed the suit.

The learned Judge of the lower appellate Court took into consideration the question of the alleged repayment of debt and held that were it not for Ex. Alif (1), he would have found that the Defendant had failed to discharge the onus laid upon him by the first issue in the case, but having regard to the fact that the Plaintiff had not dared to come into the witness box and Ex. Alif (1) contains a specific averment as to the receipt of the mortgage debt in the past, it can safely be postulated that the testimony of the Defendant supported by the evidence aliunde established in high probability the defence put forward in the case and the suit was liable to dismissal in concurrence with the trial Judge.

These concurrent findings on a question of fact are challenged before us by the learned advocate for the Plaintiff-Appellant in this second appeal. At the threshold of the argument, the learned advocate urged that Ex. Alif (1) was inadmissible in evidence since according to its tenor it purported to extinguish the mortgage and therefore did net fall within the exemption provided Section 10(2)(9), Hyderabad Registration Act. When he was confronted with the fact that the High Court had already, at the instance of the Appellant, decided that issue against him, he referred us to - ''Akberunnisa Begum v. Khawja Moinuddin 38 D LR 132 (A). That authority is in its turn based upon - ''Balwant Ram Chander v. Secy. of State 32 Bom 432 (B) and- ''Mt. Chauli v. Mt. Meghoo'' AIR 1945 All 208 (FB) (C).

The latter judgment is a judgment of the Full Bench of the Allahabad High Court wherein it has been laid clown that where a Division Bench hearing an appeal records its finding on some of the issues and remits its finding thereon and on return of those findings the appeal comes up for hearing before another Division Bench, the position of the second Bench is exactly the same as would have been the position of the first Bench if the appeal had come up before the same Judges again when findings on the issues were submitted by the trial Court.

The second Bench which is hearing the appeal is not bound by the findings at which the former Bench had arrived but it is entitled in its discretion, if it so desires, not to reconsider the findings. In our opinion, the context in which that authority was decided does not obtain in the present case. It would be obvious from the following passage of opinion of Allsop J., who delivered the leading judgment:

On the other hand, it cannot be said that any question has been finally determined until it leads to some action, that is, to a decree which may be executed or an order which must be carried into effect. When issues are remitted in a case of this kind, the only order which can be carried into effect is that lower Court must try the issues and submit the findings.

Any other findings which are recorded cannot be carried into effect until an ultimate decree is passed. One can well imagine circumstances in which it might be quite clear that the original findings were erroneous and it seems impossible to me that the Court, when it came to pass its decree, would be compelled to pass an erroneous decree as the result of those findings.

It might be for instance that a question of law was involved which in the meanwhile had been settled by a superior Court in such a way as to render the previous findings wrong. It may also be that the previous findings can be shown to have been based on a misconception due to some oversight or misapprehension.

I understand that the question has arisen in this appeal because certain documents were printed and placed before the first Bench although they were not on the record and this fact was overlooked by the parties to the appeal. I think it would be impossible to insist that a Court should pass a decree ultimately knowing that it was wrong.

It would thus be seen that such power would only be used in the exceptional circumstances enumerated in the above passage, otherwise no finality would ever attach to any judgment and order. In - ''George Henry Hook v. Administrator General of Bengal AIR 1921 PC 11 (D), the Privy Council, approving the dictum of Sir Barnes Peacock in - ''Ram Kirpal Shukul v. Rupkuari 6 All 269 (E) laid down that, when a question at issue between the parties to a suit is heard and finally decided, the judgment given on it is binding on the parties at all stages of the suit.

Its binding force depends not upon Section 11, CPC but upon general principles of law; if it were not binding there would be no end to the litigation. The same rule has been approved and laid down by the erstwhile Judicial Committee of Hyderabad in - ''Yellayya v. Ramayya 13 D LR 181 (F) and by the Pre- Constitution High Court of Hyderabad in - ''Rahman Khan v. Syed Ikramudclin 20 D LR 88 (G).

Be that as it may, even if we would have felt inclined to reconsider the question involved in the second issue, we would have found no occasion to differ from the interpretation put upon Ex. Alif (1) by the High Court at a previous stage of the suit.

That document by itself does not purport to be a receipt but recites only the fact that a certain amount of money had already been received in discharge of the mortgage debt and that the registered document relating to the mortgage had been retained by the mortgagee as security for the amount which he might be obliged to pay in case the mortgagor fails to refund the money withdrawn by the mortgagor in the case of - ''Amena Bi v. Abdullah Bin Ewaz'', on the guarantee of the mortgagee. It would thus appear that the document in question does not purport to extinguish the mortgage but means to keep it alive for a certain contingency. In these circumstances, the plea in regard to the inadmissibility of the document for want of registration cannot be sustained.

This would have concluded the matter had the present appeal been governed by the provisions of Section 100, Indian CPC But as the suit was instituted before the said Code was made applicable to the State of Hyderabad, the appeal would have to be decided on facts also since Section 602, Hyderabad CPC makes the Court of second appeal a Court of fact as well. Therefore, the learned advocate for the Appellant addressed an elaborate and lengthy argument on the factual aspects of the case.

The only question to be determined is how far the Appellant had succeeded in establishing his version in the replication that Ex. Alif (1) came into being on the Respondent''s assurance that he would pay the whole of the mortgage debt but it was torn and thrown away as the Respondent resiled from his assurance and made no payment as promised and that it was the same torn document which had been pasted and produced in the case. The document as it stands on the records shows the signs of having been torn and subsequently joined together with gum or paste.

Two witnesses deposed as to the present condition of the document, on behalf of the Appellant, his son Ahmed Bin Saleh testified that the document was prepared on the express assurance of the Defendant that he would make the full payment of the debt out of monies received from the High Court. When the Appellant on 1st Azur 1349 F., came to the Defendant''s house to receive the promised payment and deliver back the mortgage deed and the relevant papers he was only offered a part of the debt which the Appellant was not prepared to accept and therefore he tore the document in question and threw it away then and there.

On the other hand, the Defendant swore that he withdrew the money from the Court on 24th Shahrewar 1348F., on the Appellant''s guarantee & made a full payment of the mortgage debt on the succeeding day and Ex. Alif (1) was executed on 1st Azur 1349 F., to evidence the fact that the documents relating to mortgage were retained by the mortgagee till the full discharge of the guarantee.

The torn and subsequently rejoined condition of Ex. Alif (1) was attributed to the childish prank of the Defendant''s son, Monsin Bin Abdullah and another child Ahmed Bin Abdul Hafiz who struggled to get possession of the private file to which the document in question was attached.

These diametrically opposite versions received no corroboration from the oral testimony of the only attesting witness produced in the case. Having regard to the fact that the burden of proving the version as put forward in the replication was on the Appellant, the testimony of Ahmed Bin Salah assumes vital importance. Unfortunately, the testimony of this witness runs counter to the recitals in the document.

While the document says that the mortgage deed and other relevant papers had been retained till the executant was absolved of his liability under the guarantee given by him in the case of ''Amena Bi v. Abdullah Bin Ewaz'', the witness says that the Appellant said he had brought the mortgage deed and other papers to be returned to the mortgagor on his paying the mortgage debt in full.

Another thing to be noted is that the document bears the attestation of witnesses and Aziz Bin Salmain states that he attested the document at the Defendant''s place. If what Ahmed Bin Salah says is correct there was no occasion for the executant to call upon the witnesses to affix their signatures to evidence the due execution of the document. The whole of the testimony of Ahmed Bin Salah proceeds on the assumption that the disputed instrument was purported to be a receipt but the recital therein contradicts the witness.

Section 25, Hyderabad Evidence Act corresponding to Section 31, Indian Evidence Act on the same subject provides that admissions are not conclusive of the matters admitted. It has therefore been held in numerous cases if from the facts it could be shown that the admission was wrong, it would fail to have any effect. It is only prima facie evidence against the party making the admission and shifts the burden of proof to the other party if it is proved directly or circumstantially that it was made under mistake of law or fact.

The only circumstance which would have displaced the conclusiveness of the admission contained in Ex. Alif (1) bearing the date of 1st'' Azur 1349 F. would have been proof of the fact that the Respondent continued to pay rent thereafter till the execution of the third and the last rent note dated 24th Farwardi 1353F.

Both the Courts below have come to a definite conclusion that the execution of the last rent note has not been established. The learned advocate for the Appellant invited our attention to the evidence which according to him was .sufficient to prove the due execution thereof. The first witness is Ahmed Bin Salah who deposed that the rent note was executed at the Respondent''s house. He does not remember who was the scribe.

At the time of the execution of the rent note, there were no one present except the executant, the witness and his father. After the rent note was written out and executed, the Appellant asked the Respondent to deliver it to him after getting it attested. The witness says that the Respondent got it attested by one witness and handed it over to his lather on the succeeding day. The other witness, ''Ahmed Bin Muhammad had a different story to recount.

He said that the Respondent approached the witness and asked him to attest a rent note executed by him in favour of the Appellant. On the Respondent informing him that the rent note was with the Appellant, the witness said he went to the Appellant''s place and affixed his signature to the rent note. These discrepant and contradictory statements have been disbelieved by the trial Judge and the lower appellate Court'', and we do not think that we would be justified in differing from them.

As to the payment of rent by the Respondent after 1st of Azur 1349 F., to 24th Farwardi 1353 F., there is no reliable evidence on the record nor any has been pointed out to us by the advocate for the Appellant. When in the course of cross- examination, Ahmed Bin Salah was questioned as to whether an account was kept of the rent paid by the tenant from time to time he expressed his ignorance and said it was possible that the father might have made entries of them.

The absence of the Appellant from the witness-box thus left a great lacuna in the circumstantial evidence, the proof of which was necessary to displace the presumption arising from the recitals in Ex. Alif (1).

The learned advocate for the Appellant had to fall back upon other circumstances which related to the conduct of the Respondent. In the first place, he argued that the Respondent kept silent when he received the notice dated 12th Meher 1356 F., from the Appellant demanding immediate payment of the mortgage debt and the arrears of rent due under the rent note of 24th Farwardi 1353 F.

From this fact, he asked us to infer that had the mortgage debt been fully paid and no rent was due the Respondent would have been prompt to protest and repudiate all liability. He next referred us to Ex. 6 which is a statement of the Appellant recorded by the Nazim of Darul Qaza on 27th Shahrewar 1350 F. In that document, the Appellant appears to have said that the mortgage debt had not been paid till then.

It was argued that that statement was made while the Appellant appeared as a witness on behalf of the Respondent in a case pending in the Darul Qaza Court. The Respondent in his testimony has admitted that the Appellant appeared as a witness but stated that he did not remember whether he was present when the statement was recorded.

The advocate for the Appellant stressed that it was very unlikely that the Appellant, if he had been paid the mortgage debt, would have asserted that the liability under the mortgage deed had not been discharged. The third incompatible circumstance to which our attention was drawn was the delay on behalf of the Respondent in filing his written statement while the defence consisted of the plea of repayment on the strength of Ex. Alif (1) which was in possession of the Respondent.

No doubt, adjournments for filing the written statement were granted, but that fact by itself has no importance as other papers filed by the Respondent show that he had not by that time received certified copies from the erstwhile Judicial Committee of Hyderabad. Ignoring the last circumstance, the other two circumstances would have carried much weight as showing an unnatural reaction on the part of the Respondent, had the direct evidence led by the Appellant been flawless and devoid of lacuna.

We agree with the Courts below that it was very unfortunate that the Appellant refrained from appearing as a witness on his own behalf. By reason of his failure to take oath, the statement of the Respondent has remained unrebutted.

In these circumstances, we find it extremely difficult to take a different view of the evidence from that taken by the Courts below.

The appeal therefore fails and is hereby dismissed. Having regard to the circumstances of this case, we are of the opinion that none of the parties deserves any costs of any Court and therefore each party will bear his own costs throughout.