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1954 Supreme(Gau) 24
Manipur High Court
BRIJ NARAIN, J.
Soraisem Kamini Singh
Versus
Chongtham Iboyaima Singh
Civil Appeal Case No. 38 of 1953
Decided On : 17-05-1954
N. Ibotombi Singh, for Appellant; B.B. Sen, for Respondent.
An admission is not conclusive proof of the matters admitted but it may operate as an estoppel under the provisions of the Evidence Act.
Headnote:
MORTGAGE - PAYMENT OF PRINCIPAL AND INTEREST - ADMISSION OF PAYMENT - INTERPRETATION OF DOCUMENT - EVIDENCE ACT, SS. 17, 18, 20, 21, 31, 95, 97.
Fact of the Case:
Plaintiff filed a mortgage suit against the defendant for recovery of Rs. 5678-as. 10-ps. 8 along with costs and pendente lite and future interest, etc. The defendant contended that Rs. 2000/- had been paid within 5 months of the execution of the mortgage deed in question and Rs. 2120/- were paid to the plaintiff on 28-7-1949 and only Rs. 600/- remained due on the defendant on account of interest and the plaintiff gave the writing Ex. D/A on this occasion.
Finding of the Court:
The court found that the writing Ex. D/A was admissible in evidence and that it did not establish that the entire principal mortgage money had been paid up. The court also found that the defendant had not produced any reliable evidence to support his contention that he had paid the entire principal mortgage money.
Issues: 1. Whether the writing Ex. D/A was admissible in evidence. 2. Whether the writing Ex. D/A established that the entire principal mortgage money had been paid up.
Ratio Decidendi: 1. The court held that the writing Ex. D/A was admissible in evidence as it was not required to be registered under S. 17 of the Indian Registration Act. 2. The court held that the writing Ex. D/A did not establish that the entire principal mortgage money had been paid up as it merely showed that Rs. 600/- had become due on the defendant as interest for six months up to 28-7-1949.
Final Decision: The court allowed the appeal in part and decreed the suit for Rs. 5078-Rs. 10- ps. 8 only along with interest pendente lite at one per cent, per mensem and future interest at 6 per cent per annum.
2. The important facts of the case are uncontroverted and it has not been challenged that Chongthara Iboyaima Singh of Khwai Wahengbam Leikai, defendant borrowed Rs. 4000/- from Soraisem Kamini Singh of Segalambi, Takhellambam Leikai, plaintiff on 28-1-1949 at 3 per cent. per mensem, vide Ex. P/A and a double-storied (shop) building situated in No. 145/36 Imphal Town Fund, was mortgaged in this deed. The plaintiff alleged that nothing had been paid towards the principal or interest and so the suit which has given rise to this appeal, was instituted on 25-1-1951 for recovery of Rs. 5678-as. 10-ps. 8 along with costs and pendente lite and future interest, etc.
3. The defence was that Rs. 2000/- had been paid within 5 months of the execution of the mortgage deed in question and Rs. 2120/- were paid to the plaintiff on 28-7-1949 and only Rs. 600/- remained due on the defendant on account of interest and the plaintiff gave the writing Ex. D/A on this occasion. The learned District Judge accepted the defendants contention and decreed the suit for Rs. 600/- only and so the plaintiff has come to this Court in appeal.
4. Soraisem Kamini Singh, plaintiff, admitted in his cross-examination that he had written out Ex. D/A but later on he denied this fact. The learned District Judge inferred from this denial that the entire case put forward by the defendant was correct. It has been contended by the learned counsel for the appellant that the writing Ex. D/A was inadmissible in evidence as it should have been registered. This argument does not find support from S. 17, Indian Registration Act, nor from any ruling of any High Court.
In - Digambar Das v. Harendra Naraian, 14 Cal WN 617 (A) it has been laid down that the creditor may accept an amount tendered in part payment if the debtor does not make it a condition that the tender is to be in discharge of the whole. It was held in - Ram Kirpal v. Baleswar Choudhury, AIR 1941 Pat 246 (B) that it was open to the mortgagor to rely on evidence other than the endorsements on the mortgage bond such as a receipt signed by the mortgagee or his agent even though the mortgage deed contained a stipulation that the only evidence which the parties could rely upon in support of any payments made in satisfaction of the mortgage debt would be payments endorsed on the mortgage deed itself. As such there is no justification for holding that any writing about any part payment towards the satisfaction of a mortgage debt must be registered and so I think the writing Ex. D/A which was admitted by the plaintiff, was properly accepted in evidence in this case vide also - Amar Singh v. Mt. Ram Dei, AIR 1925 All 802 (C); - Satyabadi Behara v. Mt. Hirabati, 34 Cal 223 (D); - Jagat Tarini Dasi v. Naba Gopal, 34 Cal 305 (E); - Valayuda Naicker v. Hyder Hussan Khan Sahib, 33 Mad 100 (F).
5. The next question which is also very material for the decision of this case is whether Ex. D/A establishes or not that the entire principal mortgage money has been paid up. The document Ex. D/A runs as follows :
"The amount of Rs. 600/- taken by Sri Chongtham Iboyaima Singh is the interest for six months up to 28-7-1949".
The plaintiff has admitted in cross-examination that he gave a deed (Ex. D/A) to the defendant saying that Rs. 600/-being interest up-to-date was received by him. The learned District Judge after taking into consideration these two admissions and after observing that the demeanour of the plaintiff was very suspicious came to the conclusion that Rs. 4120/- had been paid up and only Rs. 600/- remained due on the defendant.
6. The
