JUDGMENT
1. This second appeal arises out of a suit brought by the plaintiff-respondents on the basis of a mortgage bond executed on 23rd June 1914. The plaintiffs are the daughter's sons of the mortgagee. The defendants, when the suit was filed included the two mortgagors and their sons. During, the pendency of the:suit one of the mortgagors died. The mortgage bond was for Rs. 300 and this amount was recited in the deed as money for the price of a bullock previously purchased (because interest is calculated) and for the settlement of a running bahi khata account in respect of patty items of food.
2. The plaintiffs in para. 5 of their plaint based the liability of the sons of the actual mortgagors on the allegation that the debt was contracted for lawful necessity of the family and that the family had been benefited by the debt. It is important to notice that the liability of the sons of the mortgagors was not based on any allegation that the money was required to meet the antecedent debts of their respective fathers.
3. The trial Court found that legal necessity was not proved. The reasoning on which it came to this finding is as follows: It quoted two decisions of their Lordships of the Privy Council, Brij Lal v. Inda Kunvar A.I.R. 1914 P.C. 38 and Banga Chandra v. Jagat Kishore A.I.R. 1916 P.C. 110 as laying down that recitals in deeds could ordinarily only be evidence as between the parties to the conveyance or those who claimed under them, although, when a transaction was so ancient as to make it impossible for the parties to the suit to produce evidence to prove necessity, a recital as to necessity might be treated as of evidential value when consistent with the probability and circumstances of the case. The trial Court proceeded to consider the evidence apart from the recital and came to the conclusion that the evidence of Wazir Ahmad, an attesting witness, did not add any thing to the recital and that the evidence of Ishaq Lal was rendered unreliable by the fact that he was a pairokar of the plaintiffs and had not explained sufficiently his presence when the mortgage was executed. It further noted that, although in the bond there was a reference to the bahi khata accounts and to the page of the plaintiffs' bahi khata, those accounts had not been produced and there was no satisfactory reason given for their non-production. Lastly it held that the plaintiffs had delayed in bringing their suit on the mortgage and consequently were responsible for the difficulty of proving that the money was borrowed for legal necessity.
4. In appeal the Subordinate Judge help that the recital as to the debts was supported by the evidence of the marginal witness and might therefore be believed. He held that the mortgagors Bahadur and Jal Singh would not have recorded the necessity of the debts against their own interest and that of their family. He commented on the fact that Bahadur, the surviving mortgagor and the defendant, had not come into the witness-box. He excused the non-production of the bahi khata by saying that it was expecting too much from the grandsons of the mortgagee that they would have retained their grandfather's bahi khata for a period going back to 13 or 15 years. Lastly he was much impressed by the mention in the bond of the exact page of the bahi khata alleged to show the balance due on the running account for petty items of food. For these grounds he set aside the finding of the trial Court and found that the bond was executed for legal necessity.
5. We are not impressed by the reasons of the lower appellate Court for holding that there was evidence apart from the recital justifying the conclusion that the bond was executed for legal necessity and we would go as far as saying that there was no reasonable evidence apart from the recital (which we shall Consider later) for holding legal necessity proved. The marginal witness Wazir Ahmad merely stated that Bahadur and Jal Singh had admitted to him that the money was due. We are not denying the fact that the recital did admit the money to be due.. Consequently Wazir Ahmad in his evidence adds nothing to the recital. As regards the suggestion that the mortgagors would not have been so foolish as to admit a debt against their own or their family's Interests, it is clear that, on the case of the defendants' sons, these brothers were using the family property to get money for themselves. Ex hypothesi therefore there would be nothing foolish in their making out that the money was required for the family necessity. It would only be by so doing that they could procure the loan from the mortgagee. As regards the failure of Bahadur, the defendant mortgagor, to come into the witness-box and deny the consideration, the lower Court was in error in confusing Bahadur's case with that of the sons. Bahadur was clearly bound by his admission in the deed, but on the supposition that the sons are not bound by the recital in the deed, the failure of Bahadur to come into the witness-box and give evidence which would be of no value, considering his own recital, cannot be held to affect the position of the sons in contesting the bond. The fact that in the bond the precise page of the mortgagee's bahi khats being entered does not appear to us to support the truth of the recital. If the mortgagors were attempting to mortgage the family property for their own personal advantage, it must in the circumstances of this case have been with the connivance of the mortgagee. Consequently the mortgagee might very well enter a page of his bahi khata in order to make the recital look more reliable. If the bahi khata had been forthcoming then no doubt the effect of the entry in the bahi khata, corresponding with the entry referred to in the deed would have been of some value, but in the absence of the production of the bahi khata, it appears to us to have been of no value. The lower appellate Court has itself stated that the loss of the bahi khata was not satisfactorily proved. When it states that the grandsons could not be expected to have retained their grandfather's bahi khatas relating to a period of 13 or 15 years ago, we would remark that, even if this were so, which we think open to doubt, the fact remains that by not retaining the bahi khata the grandsons have deprived themselves of the power of proving something, the burden of proof of which was on themselves. Whether the preservation of the bahi khatas was to be expected of them or not, the fact remains that they cannot take advantage of the bahi khatas which they have not produced. The lower appellate Court in fact is allowing the mention of the page of the bahi khata in the bond to operate as secondary evidence of the entry in the bahi khata which is not permissible.
6. We would further add that the real importance of the entry in the bahi khata would be to prove that the debt was an antecedent debt but the liability of the sons on this bond was never based in the plaint or in the pleadings or in the arguments in either Court on the liability of the sons to pay an antecedent debt and we are not prepared to consider the case from that point of view now. We would also add that the liability of sons might possibly have been based on a third ground, namely, that one of the mortgagors must have been the manager and the other the sole adult coparcener in the family, and that, in view of the fact of the only other adult coparcener in the family being a party to the deed, he must be deemed to have admitted on behalf of the coparceners other than the manager that the debt was for legal necessity; but this argument again was not advanced in either of the lower appellate Courts and we are not therefore disposed to consider it.
7. There remains then the question whether the recital in the deed was sufficient evidence in the particular circumstances of this case to prove that the bond was executed for family necessity. In Privy Council case Brij Lal v. Inda Kunvar A.I.R. 1914 P.C. 38 see p. 193 of 36 All. referred to above, their Lordships of the Privy Council stated:
Recitals in mortgages or deeds of sale with regard to existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Board that to substantiate the allegation there must be some evidence aliunde.
8. Again in Banga Chandra v. Jagat Kishore A.I.R. 1916 P.C. 110, at the foot of p. 195 (of 44 Cal.), it is stated:
under ordinary circumstances and apart from statute, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them.
9. Now it is difficult to see how the latter remark is reconcilable with the statement in the former ruling that recitals are evidence against the sons. Reading the two together it appears to us that what was laid down by their Lordships amounted to this.
10. The recital by a father in a deed to the effect that the deed is executed for family necessity is an admission by him as manager of the Hindu family, but is of little value as it may have been a false recital made by him for his own purposes. Such recitals however, although unreliable, can in certain circumstances assume value. One case is whether they are recitals, which amount to a representation of the need of the family. In such a case it would not matter whether the money was really needed for the family provided that the representation was sufficient for the lender to act upon.
11. Another circumstance is where, owing to length of time it is impossible to produce other evidence, in which case the evidence assumes an importance which it would not in other circumstances possess. In the present case there was no question of the mortgagee being entitled to act on representation. He knew for what purpose the money was used and he was bound to prove that purpose. He could not fall back on any allegation that the mortgagor represented to him that it was necessity. This was not a case where no other evidence could have been produced. There was the evidence which could hare been furnished by bahi khata if retained by the grandsons. On their own evidence these bahi khatus were in existence in about 1923 although they stated that they had been stolen then-a fact held not to be proved by both the lower Courts. It was also open to them to examine Bahadur, the surviving mortgagor. We do not find that the facts existing in the case of Banga Chandra v. Jagat Kishore A.I.R. 1916 P.C. 110 are at all similar to the present case and that decision cannot help the plaintiffs.
12. For the above reasons we consider that the decision of the trial Court was correct and that in setting aside the decision the lower appellate Court invoked certain consideration which were not relevant and certain facts which did not in fact prove the recital to be true and could be used as aliunde evidence in support of the recital. We are therefore entitled to set aside the finding of the lower appellate Court, even if it were to be considered a finding of fact, as a finding not based on admissible or reasonable evidence.
13. For the above reasons we accept this appeal and set aside the decree of the lower appellate Court and restore that of the trial Court with costs to the appellants both in this Court and the lower appellate Court. There is a cross-objection by the plaintiff-respondents as to the rate of interest. It maintains that they should have got the contractual rate of interest, but this interest was, obviously of the nature of a penalty as held by both the lower Courts. The lower appellate Court was therefore justified in fixing what it considered a fair amount of interest. We dismiss the cross-objection with costs.