1958 (1) TMI 42 - HC - Indian Laws

Summary

Issues Involved:

1. Validity of the mortgage bond.
2. Admissibility of secondary evidence.
3. Proof of execution of the mortgage bond.
4. Subsistence of the mortgage debt.
5. Legal implications of the will executed by Venkata Subba Rao.
6. Burden of proof regarding discharge of the mortgage debt.

Issue-wise Detailed Analysis:

1. Validity of the Mortgage Bond:
The plaintiff's suit was based on a mortgage bond executed on 18th April 1933. However, the plaintiff did not produce the original mortgage bond, claiming it was lost. The plaintiff's assignor, defendant No. 3, supported this claim but provided vague statements regarding the document's whereabouts. The lower court allowed secondary evidence, but the appellate court found this decision flawed due to insufficient proof of the document's loss.

2. Admissibility of Secondary Evidence:
Section 65 of the Evidence Act permits secondary evidence if the original document is lost or destroyed. The appellate court emphasized that sufficient proof of the search for the original document is necessary. The plaintiff's mere statement about the loss was deemed inadequate. The court referred to the Privy Council's stance that secondary evidence should not be accepted without exhausting all means to locate the original document.

3. Proof of Execution of the Mortgage Bond:
The court highlighted that the execution of a document required by law to be attested must be proved by calling at least one attesting witness, as per Section 68 of the Evidence Act. The plaintiff failed to call any attesting witnesses, even though some were still alive. This failure was a fatal defect, leading the court to conclude that the mortgage deed was not properly proved.

4. Subsistence of the Mortgage Debt:
The court considered the statement in the will of Venkata Subba Rao, which categorically mentioned that there were no debts owed to defendant No. 3 or others. This statement, coupled with the lack of any demand for payment by defendant No. 3 during the administration of the estate, strongly suggested that the mortgage debt was not subsisting. The court also noted the improbability of the debt's subsistence given the circumstances and relationships involved.

5. Legal Implications of the Will Executed by Venkata Subba Rao:
The will executed by Venkata Subba Rao stated that there were no debts owed by the estate. This will was admitted as genuine in another suit, and defendant No. 3 supported its validity. The court found this statement significant and indicative of the non-existence of the mortgage debt. The court also noted that the bequeathal of mortgaged properties to defendant No. 3's daughter without mentioning the encumbrance further supported the conclusion that the mortgage debt was not subsisting.

6. Burden of Proof Regarding Discharge of the Mortgage Debt:
The court clarified that the burden of proving the discharge of the mortgage debt did not shift to the defendants, as they were not parties to the original transaction and had no knowledge of it. The plaintiff, as the assignee, bore the burden of proving the execution and subsistence of the mortgage bond. The plaintiff's failure to prove the mortgage bond and the debt's subsistence led to the conclusion that the plaintiff could not obtain any relief.

Conclusion:
The appeal was allowed, and the judgment and decree of the lower court were set aside. The appellate court held that the mortgage bond was not proved, and the plaintiff, as an assignee, could not get any relief. The appellant was entitled to costs from respondents 13 to 15 both in the appellate court and the lower court.