Case: Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh And Others

2. The suit, out of which the appeal arises, was commenced by the pltf., whose successor the present applt. is, to recover a rum of Rs.11,935 by enforcement of and simple mtge, bond. The mtge. deed is dated 8-3-1926 and was executed by Raja Patteshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original pltf. Ramdeo, [to secure a loan of Rs. 5500 advanced by the mtgee. on hypothecation of certain immovable properties appertaining to the estate of the mtgor. The loan carried interest at the rate of 9 per cent. per annual and there was a stipulation to pay the mtge. money within one year from the date of the bound. The mtgor. and the mtgee. were bath dead at the time when the suit was instituted, and the pltf. in the action was Ramdeo Sahu, the son and heir of the mtgee., while the principal deft., was the eldest son of the mtgor. who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mtgor, or his successor towards the mtge. dues and the pltf. claimed the principal amount of Rs. 5500 together with interest at the rate of 9 per cent, per annum up to the date of the suit.3. A number of pleas were taken by the non testing deft. in answer to the pltfs. claim, most of which are not relevant for our present purpose, the substantial contentions raised by the deft. were of a three-fold character. In the first place, it was urged that the document sued upon was not a properly attested or validly registered document and could not operate as a mtge, instrument in law. The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2000, which was represented by Items 3 and 4 of the consideration clause in the document. The third and the last material defence related to a claim for relief under the U. P. Agriculturists relief Act.The trial Judge held in favour of the deft. on the last point mentioned above and negatived his other pleas. The result was that he made it preliminary decree for sale in favour of the pltf, for recovery of the principal sum of Rs. 5500 with interest at certain rates as are sanctioned by the U. P. Agriculturists Relief Act ; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.Against this decision, the deft. took an appeal to the H. C. of Allahabad which was heard by it D. B, consisting of Verma and York JJ. The learned Judges reversed the judgment of the trial Judge and dismissed the pltfs, suit on one ground only viz, that the bond was not attested in the manner required by law and consequently could not rank as a mtge, bond ; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the pltf.6. It is against this judgment that the pltf. has come up on appeal to this Ct.,

Reasoning: 13. The learned Judges of the H. C. in dealing with the appeal do observe at the beginning of their discussions that on a question of fact the appellate Ct. should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses ; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defts. witnesses. It is observed by the H. C. that the trial judge, when he found the defts story to be improbable, should have considered whether or not there were improbable features in the pltf.s case also, and whether the evidence of the pltf. and his servant Buddhu Lal merited credence at all. The learned Judges at the H. C. then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the deft.s case was unreliable. These reasons are held to be inconclusive and unsound and the H.C. further found that the pltf.s story as narrated by him and his servant, is improbable and not worthy of belief.In our opinion, the H. C.s approach to the case has not been proper and its findings are unsupportable on the materials in the record.We think that this argument rests on an extremely flimsy basis which does not bear examination. It may be that the Baja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti the document was executed at his palace and not in the house of the mtgee. and if as the pltf. says, the terms were already settled between Bhikhi Ram and the Raja and the only the thing left, was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mtgor. personally ; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transaction. The suggestion of Mr. Banerjee that the new story was invented after the pltff. had seen Harbhajan Lal giving evidence against him in the witness box, is not worthy of serious consideration having regard to the fact that the pltf. himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.It seems to us also that the presence of Harbhajan Lal and Buddhu Lal at the sitting when the mtge. transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the pltfs. father and he figured either as a scribe or as an attesting witness in various documents to which the pltfs. father was a party. It was quite natural for the pltf. in such circumstances to take Harbhajan Lal along with him to the Rajas palace on the day that the mtge. bond was executed and we see no reason to disbelieve the pltf.s statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the H. C. that in the mofussil districts in U. P. the Patwari is the person generally employed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by thehave exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the pltfs father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also, if Jawala Prasad Patwari had not been present on the spot, the pltf. would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the pltf.s father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the pltf. consented to the document being scribed by Jawala Prasad Patwari.Jawala Prasad Patwari is apparently a man under the control of the deft. and cannot be trusted. Why Harbhajan Lal did go over to the defts side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co-villager of Harbhajan. We think it unnecessary to speculate upon these matters, for, in our opinion, Harbhajan Lal stands condemned by his own statement in Ct.Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the H. C. has reversed it on totally inadequate grounds.