Patna High Court
Musammat Naraini Koer And Ors. vs Gena Missir And Ors. on 29 January, 1929
Equivalent citations: 120IND. CAS.291, AIR 1929 PATNA 324
JUDGMENT Das, J.
1. This was a suit to enforce a mortgage bond dated the 17th of May, 1913, executed by the father of the defendants first party. The suit was resisted on various grounds and the Courts below have concurrently come to the conclusion that there was no legal necessity in respect of the transaction of the 17th of May, 1913.
2. It appears that the father of the defendants first party took a zerpeshgi on the 20th of May, 1905, which was subject to a prior zerpeshgi in favour of Messrs. Jacob and Solomon dated the 10th of June, 1904. It is the plaintiffs' case that the father of the defendants borrowed Rs. 1,400 from them on the 17th of May, 1913, in order to discharge the zerpeshgi of Messrs. Jacob and Solomon and for family necessity. It appears that in the document it is not stated how much was necessary to pay off Messrs. Jacob and Solomon; but I find that it is admitted by one of the witnesses examined on behalf of the defendants that it was represented by the defendants' father that Rs. 1,200 would be necessary to discharge Jacob and Solomon's zerpeshgi. But as a matter of fact the prior mortgage was not redeemed and it has been found that the defendants never obtained possession of the properties covered by the zerpeshgi of the 20th of May, 1905. It is in this view that the Courts below have concurrently found that there was no legal necessity to support the transaction,
3. It appears, however, that both in the Court of first instance as also in the Appellate Court the plaintiffs tendered documents to prove that the father of the defendants deposited Rs. 975 to the credit of Messrs. Jacob and Solomon and that subsequently the whole of this money was with-drawan by the present defendants. In the Court of first instance the plaintiffs tendered some of these documents after the arguments were heard and the learned Subordinate Judge rejected the documents. In the lower Appellate Court those documents as also certain others were tendered and the learned District Judge took the view that it would not be proper for him to allow what was in fact a review unless it was possible to hold that the Original Court ought to have done so. In my opinion this is taking a very technical view of the matter. The only function of a Court of facts is to do complete justice between the parties and in my opinion the Court should not have rejected the documents as to the genuineness of which there could be no possible room for doubt, on such technical grounds as have been assigned by him. We have in this Court marked these documents as exhibits. There is no doubt whatever that the present defendants did withdraw the sum of Rs. 975 which was paid into Court to the credit of Messrs. Jacob and Solomon. There is no reason whatever why the plaintiffs should not have a mortgage decree against the defendants for the sum of Rs. 975.
4. I would, therefore, allow the appeal, set aside the judgments and the decrees passed by the Court below and give the plaintiffs a mortgage decree for Rs. 975 with interest at the bond rate until six months from the date hereof and thereafter at six per cent. per annum until realization. The defendants will have six months from date hereof to redeem the mortgage. The plaintiffs will be entitled to proportionate costs throughout.
Fazl Ali, J.
5. I agree.