1. This appeal by Defendants 1 to 3, who were defendants 1st party in the Court below, is directed against judgment and decree passed by the Additional Subordinate Judge in title mortgage suit No. 11/52 of 1956/58.
2. The aforesaid suit was instituted on the 6th July, 1956, by the plaintiffs, who are respondents 1 to 13 in this appeal, for recovery of Rs. 33,322/8/- annas as principal and interest for the period prior to the institution of the suit and for interest pendente Ute till realisation from the defendants 1st party by enforcing the two mortgage bonds, namely, Ext. 7 dated the 22nd August, 1944, and Ext. 7/a dated the 4th February, 1946. According to the case of the plaintiffs, the Firm Lalchand Bhagat Ambika Ram, plaintiff No, 1, was a registered firm, registered under the Indian Partnership Act in 1952. Before that it was a joint Hindu family firms, whereas Beni Madhav Prasad, Plaintiff No. 2, and Jagarnath Prasad, who was original plaintiff No. 7, were partners of the firm. Plaintiffs 2 to 6 were members of the joint Hindu Family of which plaintiff No, 2 was the Karta. Plaintiff Nos. 7 to 13 were members of another Joint Family of which plaintiff No. 7 was the Karta during his lifetime. He, however, died daring the pendency of the suit. Thereupon Shri Krishna Prasad, plaintiff No. 8, became its Karta. The business of the firm used to be conducted and managed by P. Ws. 7 and 8. The defendants first party, namely, the appellants, were members of the Hindu joint family governed by Mitakshra School of Hindu law. Defendant No. 1 was the Karta of the said joint family. whereas defendant No. 2 was his son and was aged only 5 years on the date of institution of the suit. Defendant No. 3 was the illegitimate son of defendant No. 1 and he was also aged 8 years when the suit was instituted. Defendants 4 to 6, who are defendant's second party, -- respondents 14 to 16 in this appeal. were also members of another joint family of which defendant No. 4 was the Karta. Defendants 5 and 6 sons of defendant No. 4, were aged about 7 and 4 years respectively at the time of institution of the suit. According to the plaintiff, defendants 1 and 4 being step brothers were joint at one rime but about 20 years before the institution of the suit there was separation between them and all the properties were partitioned. In the said partition the properties situated at Sahibganj, which included suit properties, fell in the share of defendant No. 1, whereas the properties lying in the district of Malcla (West Bengal) were allotted to defandant No. 4. On the 22nd August, 1944 defendant No. 1 borrowed Rs. 12,000/- from the plaintiffs on security of the simple mortgage bond dated the 22nd August, 1944 (Ext. 7). in respect of the properties mentioned in Schedule B of the plaint, with a view to pay off the previous dues of Messrs Girdhnrilal Dharamchand, to rebuild his house, and to meet his own marriage expenses. Defendant No. 1 had executed Ext. 7 in the name of plaintiff No. 8. Subsequently, on the 4th February, 1946, defendant No. 1 took further loan of Rs. 6,000/ from the plaintiffs on executing anoiher mortgage bond dated the 4th February, 1946 (Ext. 7/a) in the name of Jagarnath Prasad. plaintiff No. 7, in respect of the properties mentioned in Schedule B/1 of the plaint in order to meet family necessities and for business. In the two mortgage bonds defendant No. 1 had agreed to any interest at the rate of ten annas per mensem, corresponding to 7 1/2 per cent, per annum. The due date of payment mentioned in the two mortgage bonds was the 31st August, 1949. The defendants first party did not pay any amount either towards the principal or the interest covered under the two mortgage bonds in spite of demands made by the plaintiffs, which necessitated institution of the suit. The plaintiff mentioned the accounts of their claim in Schedule A of the plaint. The plaintiffs impleaded defendants 2nd party in the suit with a view to avoid future litigation, although, according to the plaintiffs, since after the aforesaid partition, they had no interest whatsoever in the properties under mortgage. In spite of that, defendant No. 4, one of the members of the defendants second party, was falsely laying claim over the .share in the suit properties. Therefore, as an abundant precaution the plaintiffs impleaded defendants 2nd party in the suit.
3. In the suit three sets of written statements were filed. One was on behalf of defendant No. 1, the second was filed by the guardian-ad-litem on behalf of minor defendants 2 and 3 and the third one was on behalf of defendants 4 to 6, namely, second party. To a large extent their defence was common. They denied the validity of the execution and attestation of the two mortgage bonds. They also pleaded that no consideration, as mentioned in the bonds, was paid to defendant No. 1. While admitting that the defendants second party had separated from defendants 1st parly, they asserted that the defendants second party had eight annas share in the Sahibganj properties., including the suit properties, which were in joint possession of the defendants 1st and second parties. The common defence further was that the suit as framed was not maintainable, as the plaintiffs Were not registered as money lenders under the Bihar Money Lenders (Regulation of Transactions) Act, 1939 (Bihar Act VII of 1939), hereinafter referred to as 'the Act'. The specific defence of defendants 4 to 6 was that defendant No. 1 was the man of reckless character, who wanted to manufacture evidence for the purpose of depriving defendant No. 4 of his legitimate share of eight annas in the Sahibganj Properties. The two mortgage bonds, which defendant No. 1 had executed in favour of the plaintiffs, were merely paper transactions, and they were designed to deprive defendant No. 4 of his legitimate share in the suit properties. According to defendants 4 to 6, therefore, they had paramount title to the extent of eight annas in the alleged mortgaged properties. They further Contended that the plaintiffs had no cause of action whatsoever against them and since they were neither mortgagors nor persons claiming through the mortgagors, were unnecessary parties to the suit. The guardian-ad-litem of minor defendants 2 and 3 also pleaded that defendant No. I was a man of bad character and adicted to wine and women. The money, alleged to have been borrowed on the basis of the aforesaid two mortgage bonds, executed by defendant No. 1, was spent for immoral purpose and as such the minor defendants were not in any way liable for the payment of the mortgage money. The necessities for borrowing money, as stated by defendant No. 1, were imaginary. In fact, there Was no necessity for borrowing the said amount.
4. On the pleadings of the parties the following issues were framed:
1. Were the mortgage bonds in suit validly and legally executed and attested; and were they for consideration?
2. Whether the defendants Nos. 4, 5 and 6 have paramount title over half of the mortgaged properties?
3. Do the mortgage bonds in suit any way affect the right, title and interest of the defendant Nos. 4, 5 and 6, if any, in the mortgaged properties?
4. Is the suit hit by the provisions of Sections 4 and 5 of the Bihar Money Lenders Act?
5. Whether the mortgage bonds in suit were executed for legal necessity or whether these were executed for immoral debts?
6. Are the minor defendants bound to pay the dues of the plaintiffs?
7. Is the suit bad for misjoinder of parlies?
8. To what relief or reliefs, if any, are the plaintiffs entitled?
5. On behalf of the parties various documents filed as well as witnesses were examined. After considering the evidence on the record the learned Additional Subordinate Judge decided all the issues against the defendants 1st and 2nd parties.
6. Mr. B.P. Rajgarhia, learned counsel appearing on behalf of the appellants, has assailed all the landings given by the trial Court and contended that on the evidence on the record those findings could not be sustained. First of all he placed before us the findings of the Court below regarding issue No. 4. He drew our attention to paragraph 14 of the judgmem where the learned Judge, relying on the evidence of P. Ws. 14 and 15, found that the plaintiff were casual money lenders. In other words, they were not professional money lenders. Reference was made also to paragraph 15 of the judgment wherein it was held that the firm Lakhand Rhagat Ambika Ram, plaintiff No. 1, was a registered money lender, under the provisions of Section 4 of the Act on the 18th January, 1940. The mortgage bonds were executed in the names of the two partners, namely, P. Ws. 7 and 8, who were managing partners of the firm, who had entered into transactions on behalf of their firm, which was a registered money lender. Mr. Rajgarhia conceded that on the pleadings of the parties Section 5 of the Act was not relevant. Section 5 prescribes inter alia 9 per cent, per annum as the maximum rate of interest in the case of secured loans. In the instant case stipulated rate of interest in the two mortgage bonds was only 7 1/2 per cent. Therefore, the provision contained in Section 5 of the Act was no bar to the suit. He, however, emphasised that Section 4 of the Act was definitely a bar to the suit instituted by the plaintiffs. He referred to Section 4 which reads as:
"No Court shall entertain a suit by a money lender for the recovery of a loan advanced by him after the commencement of this Act unless such money-lender was registered under the Bihar Money Lenders Act, 1938, at the time when such loan was advanced:
Provided that such a suit shall be entertainable if the loan to which the suit relates was advanced by the money-lender at any time before the expiration of six months after the date of the commencement of this Act and if he is granted a certificate of registration under Section 5 of the Bihar Money Lenders Act, 1938, at any time before the expiration of the said six months."
According to him, two alternative findings, which the learned Subordinate Judge has given, while disposing of issue No. 4, namely, (i) that the plaintiffs were casual money lenders, and (ii) that the joint family firm had money lending licence, as required under Section 4 of the Act, were bad and not in accordance with law, nor those findings were supported by the evidence on the record. While recording the finding regarding casual character of the two loans, the learned Subordinate Judge, learned counsel submitted, committed error in holding that the onus was on the defendants to establish that the plaintiffs were professional money lenders. In this connection he drew our attention to a portion of the judgment in paragraph 14 where the learned Subordinate Judge observed:
"......... Neither defendant No. 1 (D. W.
10) nor defendant No. 4 (D. W. 14) or any of the witnesses examined on behalf of the defendants 1st and 2nd parties stated a word even that the plaintiffs were professional money lenders ........."
7. In order to find support to his contention Mr. Rajgarhia relied on a decision in K.S. Nanji and Co. v. Jatashankar Dossa, (AIR 1961 SC 1474), where their Lordships at page 1478 held :
"......... Under the Evidence Act there is an essential distinction between the phrase burden of proof as a matter of law and pleading and as a matter of adducing evidence. Under Section 101 of the Evidence Act, the Burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other......"
Relying on the above observation learned counsel urged that in the present case the burden of proof was in the former sense and the burden was constant on the plaintiffs throughout the trial. He also pointed on that the above principle of law enunciated oy their Lordships was also relied upon by the Full Bench of this Court in Smt. Fula Devi v. Manglu Maharaj, (AIR 1969 Pat 294) (FB), where their Lordships, while dealing with the provisions contained in Section 4 of the Act, held that in view of the bar under the first paragraph of Section 4 of the Act, the onus to prove as a matter of law that the suit for recovery of loan was entertainable under Section 4 without registration was on the plaintiff.
8. In my opinion, the above observation of the learned Subordinate Judge was in the latter sense, that is, the phrase 'burden of proof as a matter of adducing evidence, as it will be found from the discussion which he made in paragraph 14 of the judgment There, as mentioned earlier, he relied on the evidence of P. Ws. 14 and 15. The former stated in cross-examination "the plaintiffs deal in grains. They do not carry on money lending business generally but they advanced loan to some friendly persons......" Whereas the latter (P. W. 15) stated in examination-in-chief: "There was no regular money lending business carried on by that firm. This firm some times used to advance loans only to friends and acquaintances and not to all and sundry." In that context the learned Subordinate Judge observed that the defendants 1st and 2nd parties did not adduce evidence; nor examined any witness to neutralize the evidence of P. Ws. 14 and 15 or to show that the plaintiffs were professional money lenders. Even in the aforesaid case of Smt. Fula Devi, on which reliance has been placed by Mr. Bajgarhia, their Lordships observed at page 299 that it might be that even some slight evidence adduced by the plaintiff would shift burden on the defendant to prove that the suit was not maintainable by the Court but that burden on the defendant was a burden 'as a matter of adducing evidence'.
9. Mr. 'Rajagarhia then urged that the learned Subordinate Judge ought not to have relied on the evidence of P. Ws. 14 & 15 or he ought to have allowed the plaintiffs to lead evidence on the casual character of the loan, since it was not pleaded by the plaintiffs in their plaint. In absence of such a pleading no duty was cast upon the defendants to lead evidence in order to neutralize the evidence adduced by the plaintiffs regarding casual character of the loan. On the contrary it was incumbent upon the plaintiffs to have specifically pleaded regarding casual character of the loan, as required under Order VII, Rule 1 (f) of the Code of Civil Procedure. In order to substantiate this point he farther relied upon the observation of their Lordships in paragraph 7 at page 299 of the judgment in AIR (969 Pat 294 (FB) (supra) where their Lordships held that it was incumbent upon the plaintiff to have pleaded no in the plaint to establish that the wit was entertainable in spite of Section 4 of the Act. Mr. Rajgarhia further pointed out that in the absence of the issue also regarding casual character of the loan the learned Subordinate fudge ought not to have allowed the plaintiffs to lead evidence on the point.
10. On the other hand, Mr. J.C. Sinha, learned counsel appearing on behalf of the plaintiff-respondents, submitted that in the instant case the defendants have cross-examined P. Ws. 14 and 15 on the point of casual character. Therefore, they were fully aware about that. They were not taken by surprise. They could have adduced evidence to neutralize that part of the evidence of the plaintiffs but they did not choose to do so nor they filed any application in the trial Court stating therein that the point was not pleaded in the pleadings by the plaintiffs; therefore, they should not be allowed to lead evidence on that point, as the defendants were taken by surprise. In order to substantiate his submission he relied on a judgment of the Supreme Court in Nagubai Ammal v. B. Shama Rao, (AIR 1956 SC 593) where it was observed that evidence let in on issues on which the parties actually went to trial should not be made* the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule, their Lordships observed, had no application to a case where parties went to trial with knowledge that a particular question was in issue, though no specific issue had been framed thereon, and adduced evidence relating thereto. Absence of the specific pleading on the question was a mere irregularity which resulted in no prejudice to the defendants. Reference was also made to Kunju Kesavan v. M.M. Philip, (AIR 1964 SC 164). In that case their Lordships were considering regarding prejudice caused to the plaintiff in absence of certain pleadings in the written statement of the defendants. Their Lordships in paragraph 17 at page 169 observed that the plaintiff was not taken by surprise. He was also cross-examined. The plaintiff did not seek the permission of the Court to lead evidence on that point nor did he object to the reception of the evidence. The parties went to trial fully understanding the fact. The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision. In this connection further reliance was placed on Bhagwati Prasad v. Chandramaul, (AIR 1966 SC 735) where their Lordships in paragraph 10 at page 738 observed :
"...... If a plea is not specifically made and yet it is covered by any issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they "lead evidence about it"? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
11. Mr. Rajgarhia. however, contended that their Lordships of the Supreme Court in the cases referred to above were dealing with the cases where both parties actually went to trial. In other words, both parties examined and led evidence on the point. In the present case, although evidence was led on behalf of the plaintiffs, defendants did not lead evidence to counter-act the evidence of P. Ws. 14 and 15. because, according to Mr. Rajgarhia, the learned Subordinate Judge had erred in taking into consideration the evidence of P. Ws. 14 and 15 in the absence of specific pleading in the plaint by the plaintiffs that they were not professional money lenders. In that circumstance the evidence of P. Ws. 14 and 15 that the two loans were casual in character had no value in the eye of law. The said evidence ought to have been completely ignored. In that situation it was not necessary for the defendants to lead evidence in order to neutralise the evidence of P. Ws. 14 and 15.
12. Mr. Rajgarhia further distinguished the principles laid down by the Supreme Court on the ground that in those cases their Lordships were not dealing with the provisions contained under the Bihar Money Lenders Act. According to him, the observation made by their Lordships of this Court in the Full Bench decision in Smt. Fula Devi's case, specifically dealing with the provisions contained under the Bihar Money Lenders Act, was more appropriate. He drew our attention to a certain portion of the observation of their Lordships in the above case in paragraph 6, which is to this effect:
"So far as the first paragraphs of Section 4 of Bihar Act VII of 1939 is concerned, the impediment is on the Courts in ascertaining suits by money-lenders for recovery of loan? advanced by them unless such moneylenders are registered under the Bihar Money Lenders Act, 1938, when the to any were advanced. The expressions 'money-lender' and 'loan' are both defined in Section 2 of the Act. and although these express ion have been given particular connotation by judicial decisions, unless a plaintiff pleads in his plaint facts which would make the suit prima facie entertainable by the Court, it can hardly be said that the plaintiff has discharged the duty put upon him by Order VII. Rule 1 (f) of the Code of Civil Procedure........."
13. In my judgment, the above observations of their Lordships lend support to the, contention of Mr. Rajgarhia that there ought to have been specific pleading in the plaint that the plaintiffs were not professional money lenders and the two loans were casually advanced to defendant No. 1.
14. Mr. Rajgarhia also drew our attention to Ext. 7/a, mortgage bond dated the 4-2-1946, wherein the column 'creditor' Jagarnath Prasad's (plaintiff No, 7) occupation was described as 'money lender', Learned counsel contended that that would amount to an admission by the plaintiff himself that he was a professional money lender. Therefore, it could not be held that he was a casual money lender. In my opinion, that cannot be considered as an admission; nor can it be considered as a proof. Moreover, even if it is taken as an admission, that is not binding upon him. It was Dwarka Prasad (defendant No. 1) being mortgagor, who got the document prepared and executed. Simply because in the column of the creditor, the description of Jagarnath Prasad was mentioned as money lender, it could not be held that he was a professional money lender. Further, a person by occupation may be a money lender, but that does not stand as a bar to him in advancing money as an accommodation loan to his acquaintance.
15. Learned counsel then submitted that Ext. 7 was executed on the 22nd August, 1944, whereas Ext. 7/a was executed on the 4th February, 1946. That also indicates that the plaintiffs were not casual money lenders;
on the other hand, they were frequently advancing loans. Therefore, it could not be held that they were casual money lenders. in my view there is no merit in this contention. Reference may be made to Sano Kashinath v. Patitto Sabuto, (AIR 1942 Pat 348) where Harries, C. J. and Manohar Lall, J. observed that an element of continuity and habit was essential to constitute the exercise of a profession or business. A man did not Become a money-lender merely because he might upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans.
There must be a business of money-lending, and the word 'business' imports the notion of system, repetition and continuity. The line of demarcation cannot be defined with closeness or indicated by any specific formula. Each case must depend upon its own peculiar features. If investments by way of loan are made as a matter of regular business such investments constitute engagement in money-lending business. The fact that a person carried out isolated transactions of a particular kind did not mean that he carried on business of such a kind. A person might from time to time lend money to his friends or to persons close to him. If he made a habit of it for profit, then such lending might well become a business, but if the transactions were few and isolated, then the lending might well not be business. Whether the lending over a period of years would amount to carrying on business or not must depend on the particular facts of each case. Where the instances of lending were few and spread over a long period of time and further when it was found that there was some particular reason why each loan should have been made, then such would strongly suggest that the lender was not carrying on the business of money-lending. In Smt. Savitri Devi v. Smt. Beni Devi, (AIR 1968 Pat 222); Ramratna Singh and Shambhu Prasad Singh, JJ., also relied on the above observation of their Lordships. In Sanwarmal Agarwalla v. Benoy Krishna Mukherjee, (AIR 1970 Pat 167) my learned senior Brother, Anwar Ahmad and M.P. Verma, JJ, held that the provisions of Section 4 of the Act did not apply where money lending was casual and their Lordships followed the test of professional money-lender as laid down in AIR 1942 Pat 384 (Supra).
16. However, on a careful consideration I am unable to accept the finding of the Court below that the two loans advanced were casual in the absence of specific pleading by the plaintiffs, in their plaint.
17. Now I propose to consider the alternative finding of the learned Additional Subordinate Judge that the plaintiff-firm was registered tinder the Money Lenders Act, and, therefore, the suit was not barred. Mr. Rajgarhia has challenged this finding as well He drew our attention to paragraph 1 of the plaint wherein it was pleaded that the plaintiff firm Lalchand Bhagat Ambika Ram was a registered firm, plaintiffs 2 and 7 were partners thereof, of which plaintiffs 2 to 6 were members of the joint Hindu family with plaintiff No. 2 as Karta and the plaintiffs 7 to 12 were members of a joint Hindu family with plaintiff No. 7 as Karta and after his death plaintiff No. 8 had become Karta and the partnership business was conducted and managed by plaintiffs 7 and 8. He also referred to paragraph 5 of the plaint wherein it was stated regarding execution of the mortgage bond dated the 22nd August, 1944 (Ext 7) by defendant No. 1 in the name of plaintiff No. 8. Similarly, in paragraph No. 7 it was stated regarding execution of the bond dated the 4th February, 1946, (Ext. 7/a) by defendant No. 1 in the name of plaintiff No. 7. On behalf of the plaintiffs learned counsel pointed out that Exts. 6/a, 6/h, 6/c and 26 were filed in order to establish that the plaintiff-firm had money lending licence. Ext. 6/a is the money lending certificate granted to the firm Lalchand Bhagat Ambika Ram on the 16th April, 1957, under Section 5 of the Money Lenders Act. 1938 (Bihar Act III of 1938). Ext. 6/b was also granted to the same firm on the 16th April, 1952, whereas Ext. 6/c was granted on the 1st April, 1946 to the same firm. Learned counsel contended, that those certificates were not relevant for the purpose of holding that the firm had licence for advancing the two loans on the 22nd August, 1944. and the 4th February, 1946, covered by Exts. 7 and 7/a, respectively, as the certificates relate to the period subsequent to the two loans. Learned counsel submitted that the crucial time for holding money lending licence is the time when the loan for the recovery of which the suit is brought, was advanced.
18. In order to substantiate his contention he relied on a Bench decision of this Court in Baleshwar Prasad v. Lal Bahadur Prasad, (AIR 1972 Pat 87) where also cases of Mahasukh Ram v. Sheo Prasad, (1965 BLJR 247) and Jiwanlal Achariya v. Rameshwarlal Agarwalla, (AIR 1967 SC 1118) were relied. In my opinion, this submission of learned counsel is well founded. But, in the present case the learned Subordinate Judge has chiefly relied on Ext. 26 for his finding that the firm had money lending licence at the relevant time, that is, before the two loans in dispute were advanced, Ext. 26 is a true copy of the entry in the money lenders' register of Rajmahal Sub-Registry Office. In column No. 3 meant for name, parentage etc. of the money lender, the name of Shri Krishna Prasad, (plaintiff No. 8) son of Mahendra Prasad, Vaisya, firm Lalchand Bhagat Ambika Ram of Sahebganj ............ is entered. In column No. 5 meant for 'date of previous registration, if any, with serial number of the entry in the register, serial No. 80 and date 18-1-1940 are mentioned. Relying on this entry the learned Subordinate Judge found that the firm had licence prior to the advancing of the two loans in question. Mr. Rajgarhia firstly contended that the said entry, which is not original, is not admissible in evidence, and, therefore, the trial Court ought not to have relied on it. On the other hand, Mr. Sinha contended that it was a public document, and, therefore, the certified copy was admissible in absence of the original. He drew our attention to the provision contained in Clause (ii) of Sub-section (i) of Section 74 of the Evidence Act, which reads as:
"The following documents are public documents:--
(1) documents forming the acts or records of the nets-
(iii) of official bodies and tribunal."
He also referred to Section 76 of the Evidence Act, which provides how certified copies can be prepared and obtained. It will be useful to quote the said section in extenso :
"Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of "such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies."
Explanation-- Any officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."
According to the above provisions at the foot of Ext. 26 a certificate is appended by Girija Nand Prasad, Extra-clerk for Sub-Registrar dated 3-12-1957, the English version of which reads:
"As per application Nos. 171 to 173 copy prepared and after getting it signed and sealed it was made over to Sri Krishna Prasad, Sd. Girija Nand Prasad, Extra-Clerk, for Sub-Registrar, 3-12-1957"
Apart from the provisions contained under the Evidence Act, Mr. Sinha also referred to Section 4 of the Bihar Money-Lenders Act, 1938. which provides that (1) every Sub-Registrar shall maintain a register, moneylenders in such form and containing such particulars as may be prescribed. (2) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872. The above provision in the Act itself, leaves no manner of doubt that the register maintained in the office of the Sub-Registrar shall be deemed to be a public document. Learned counsel also pointed out, by reference to the Schedule attached to Section 18 of the Bihar Money Lenders Act.
1939. which shows that Section 4 along with some other sections of 1938 Act was not repealed by 1939 Act. In the schedule in the column No. 4 'Extent of repeal', is mentioned "In Section 2. clauses (b), (c), (e) (k) and (n); Chapter III, and Sections 22 and 26' whereas Chapter V of 1938 Act was wholly repealed. In my opinion, the submission of Mr. Sinha is well founded. Ext. 26 was admissible in evidence.
19. Mr. Rajgarhia then urged that from Ext. 26 it is apparent that the licence was not in the name of the firm but it was in the name of Shri Krishna Prasad (plaintiff No. 8). Mention of the firm in the said column was merely to describe plaintiff No. 8. Therefore, he submitted that the learned Subordinate Judge has erred in holding that the licence was in the name of the firm and the money was advanced in the name of individual partners of the firm. He submitted that if the licence was in the name of the firm, as held by the learned Subordinate Judge, the loan ought to have been advanced in the name of the firm through its partners and not in the name of the partners of the firm. In order to substantiate his contention he relied on a Bench decision of this Court in Kamalbas Pandey v. Daroga Dubey, (1962 BLJR 37) where it was held that the registration certificate granted to a Partnership firm cannot be availed by any partner of the firm in respect of his individual business of money lending. In my opinion, the learned Subordinate Judge has failed to highlight the evidence adduced by P. W. 15, who had clearly stated in his evidence that plaintiff No. 1 was registered under the Indian Partnership Act for the first time in 1952, and that before that it was a joint family firm. In that view of the matter, in my opinion, the observation made by their Lordships in the case of Kamalbas Pandey is not applicable in the instant case. That apart, on the basis of Ext. 26, in my opinion, it would be safer to hold that on the 18th January, 1940, the licence was granted to plaintiff No. 8 in his individual capacity and the same was not granted to the firm. Therefore, the plaintiff No. 8, on the basis of the said money lending certificate, had advanced loan to defendant No. 1 on the 22nd August, 1944, under the mortgage bond (Ext. 7), but, in my opinion, there is no basis for holding about the other loan, which was advanced on the 4th February, 1946, by plaintiff No. 7 to defendant No. 1 under mortgage bond (Ext. 7/a). Reference may be made to Section 6 of the Money Lenders Act, 1938, which provides that a registration certificate granted under Section 5 shall, unless sooner cancelled under Section 19 be in force only for five years 'from the date on which it is granied. Therefore, the certificate, which was granted on the 18th January, 1940, as it would be found from Ext. 26, would not be effective for more than five years. In that view of the matter, the finding of the learned Subordinate Judge regarding other bond (Ext. 7/a) cannot be sustained.
20. It will be convenient to deal with the finding of the learned Subordinate- Judge under issue No. 1. Under this issue two questions were involved, namely, (i) whether the mortgage bonds (Exts. 7 and 7/a) were attested and executed and (ii) whether consideration thereunder had passed. Learned Subordinate Judge found that both the bonds were duly executed and attested and that defendant No. 1 had received full consideration money of the two bonds. Mr. Rajgarhia has not seriously challenged the attestation and execution of the two bonds nor could he have done so in view of the solid evidence on the point. The learned Subordinate Judge has dealt with the matter of attestation and execution in paragraph 17 of the judgment. Abdul Rauf (P. W. 2) is one of the attesting witnesses of Ext. 7. The other attesting witness is Harihar Missir whereas Surya Narain Sinha (P. W. 3) was one of the attesting witnesses in Ext. 7/a. He stated that they find attested the two deeds in presence of the executant, defendant No. 1 Gopal Prasad Singh (P. W. 15), who was the manager of the plaintiffs, also testified that defendant No. 1 had executed the two deeds in his presence. Defendant No. 1, who examined himself as D. W. 10, stated that he did not know the contents of the two bonds though he admitted that he had put his signature on the mortgage bonds on being asked by plaintiff Nos. 7 and 8. His evidence the learned Subordinate Judge has rightly disbelieved. I find no reason, therefore, to differ from the findings of the learned Judge that the mortgage bonds were duly attested and executed by defendant No. 1.
21. Mr. Rajgarhia, however, contended that no consideration had passed under the two bonds and so the finding in this connection cannot be sustained with regard to the necessity for raising the loan under Ext. 7 the executant, defendant No. 1 mentioned therein as follows :
"Whereas it is necessary for me the executant to pay back the money to the creditor, Girdhari Lal Dharam Chand and to perform marriage and to build a house. But it is difficult and impossible to arrange the money by other means except by taking loan for the necessities. Hence, I, the executant, in sound state of my body and mind and in enjoyment of my proper senses, took a loan of Rs. 12,000/- (twelve thousand) in cash......"
Whereas in the other bond dated the 4th February, 1946 (Ext. 7/a) the executant stated:
"I have not so far paid to you a single pice even towards either the principal or the interest of the amount borrowed previously by me from you under a registered rehani mortgage bond executed by me on 22-8-1944 I having stood in great need of money for meeting my family expenses and for carrying on business I have again borrowed this day from you a lump sum amount of Rs. 6,000/-Rupees six thousand ......"
Learned counsel for the appellants submitted that those mortgage bonds were merely paper transactions. In fact, no consideration had passed. He referred to Ext. 1/a, which is the receipt dated the 5-9-1944, issued by defendant No. 1 in respect of the mortgage bond (Ext. 7). The receipt shows only cash payment of Rs. 9,000/- and the remaining Rs. 3,000/-, as earmarked for redeeming the mortgage bond of Girdharilal Dharam Chand. Mr. Rajgarhia pointed out that there is not mentioned as such in the mortgage bond (Ext. 7). On the contrary, it is stated therein by defendant No. 1 that he took the entire Rs. 12,000/-on the 22nd August, 1944. In my opinion, this submission of learned counsel is not acceptable. Defendant No. 1, who examined himself as D. W. 10, admitted that Ext. 1/a bore his signature and therefore he is bound by the recital made therein. Mr. Rajgarhia emphasised that under Ext. 7 dated the 22nd August, 1944, when it was mentioned that the entire Rs. 12,000/- was taken by defendant No. 1, what was the necessity for granting fresh receipt dated the 5th September, 1944 (Ext. 1/a) for the same transaction. In my opinion, this submission is not tenable. It was required because it was necessary to clarify that Rs. 9,000/- was received by defendant No. 1 in cash whereas the remaining Rs. 3,000/- was kepi as earmarked for redeeming the usufructuary mortgage bond of Girdharilal Dharam Chand. It may be recalled that Ext. 7 also indicates that the money was required for redeeming the aforesaid bond. P. W. 15 further stated that he, plaintiff No. 7 and defendant No. 1 had gone with the said sum of Rs. 3.000/- to the firm Girdharilal Dharamchand for paying the same to the said firm. He made over the entire amount of Rs. 3,000/- to Shankar Lal. Munib of the Firm, in presence of the proprietor. Accounling was done and it was frund that Rs. 1867/5/3 pies was due in respect of the loan advanced by that firm to defendant No. 1 under the usufructuary mortgage bond dated the 15th September, 1941 (Ext. G/1). The balance amount of Rs. 1132/10/9 pies out of Rs. 3,000. referred to above, was returned to defendant No. 1 by the firm then and there in presence of P. W. 15 and others, and an endorsement (Ext. 3/h) to this effect was made on the bond (Ext. G/1). Mr. Rajgarhia pointed out that the endorsement (Ext. 3/h) is dated 13-8-1944 whereas the mortgage bond (Ext. 7) itself is dated 22-8-1944. In that view of the matter, according to him, Ext. 3/h was not reliable, since it could not have come into existence prior to the date of the execution of Ext. 7. I have seen the original of Ext. G/1 while writing the date of the said mortgage bond In Mahajani from the date was given as 15-9-1941. The month '9' is written in the same way in Mahajani as the month '9' is written in the endorsement (Ext. 3/h) while giving the date. Therefore, it would be wrong to read the endorsement as dated 13-8-1944. It is in fact 13-9-1944 written in Mahajani form.
22. The learned Subordinate Judge has given various other additional grounds for holding that in fact consideration had passed in paragraphs 18 to 21 of the judgment. In my view, he has given cogent grounds. It would be unnecessary to reiterate them here. Out of the money, which defendant No. 1 had received, he had constructed a double storied building on plot No. 149 bearing original holding No. 22 in Sahibganj Municipality, which was testified by P. VVs. 6, 11, 13 and 15. Ext. 15 is the petition dated the 17th August, 1944, and Ext. 16 is the plan, filed by defendant No. I to the Sahibganj Municipality for obtaining sanction for constructing a double storied building, which was constructed in 1045. Evidence was led on behalf of the plaintiffs to show that the name of Kishni Devi, first wife of defendant No. 1, who was dead all then, was engraved on the kalgi of the first floor of the building (vide P. W. 15). D. Ws. 2, 4, 6, 10 (defendant No. 1) and 14 (defendant No. 4) were examined on behalf of defendants iirst and second parties to prove that the double storied building was coming since a long lime. D. W. 6, however, stated in cross-examination that defendant No. 1 got erected a double storied budding at Sahibgunj 12 to 13 years prior to his giving deposition, whereas D. W. 9 admitted in cross-examination that the upper storey was constructed 14 or 15 years before he deposed. The learned Subordinate Judge after considering the evidence on the record held that the building was constructed by defendant No. 1 after execution of the mortgage bond (Ext. 7).
23. In my opinion, there is no scope for making any comment regarding non-passing of the consideration of Rs. 6,000/- in mortgage bond dated the 4th February, 1946, (Ext. 7/a). The necessity for raising further loan is already mentioned in the bond the Relevant portion of which I have already quot-
ed earlier. Further, the receipt dated the 5th February, 1946, (Ext. 1) acknowledging the receipt of the payment of Rs. 6,000/- in a lump is to be found, which clearly corroborates the passing of the consideration by the mortgage bond (Ext. 7/a). This fact is also testified by the oral evidence of P. W. 15. After due consideration I do not find any merit in the contention of the learned counsel for the appellants. There is absolutely no reason to disturb the finding of the learned Subordinate Judge regarding passing of the consideration under the two bonds.
24. Now I turn to consider the finding of the trial Court regarding issues Nos. 2, 3 and 7 together, since they were considered together by the trial Court. Under these issues the trial Court found that the story of partition put forward by the plaintiffs was correct. After the said partition the entire mortgaged properties in suit were allotted to defendant No. 1 alone, who all along was coming in exclusive possession thereof. It was defendant No. 1 alone who had constructed the double storied building on plot No. 149 on executing the mortgage bond (Ext. 7). Defendants second party, namely, defendants 4 to 6, had no concern whatsoever with the suit properties after partition Therefore, defendants 4 to 6 had no paramount title over any portion of the mortgaged properties in the suit. It also found that there was no misjoinder of parties because for sometime in the past defendant No. 4 was laying false claim and in order to avoid future litigation it was necessary to implead the defendants second party in the suit as an abundant precaution. In my opinion, the appellants, who are defendants first party, cannot make any grievance regarding the findings of the trial Court on those issues. It was defendants second party, who were really aggrieved by the findings on those issues, but they have not come in appeal before this Court and, therefore, they were made respondents in this appeal. Their counsel, Mr. Sidheshwar Singh neither supported nor opposed the contentions raised on behalf of the appellants. Therefore, there is no merit in the contention of the learned counsel for the appellants regarding paramount title of defendants 4 to 6.
25. Now I advert to the finding of the learned Subordinate Judge on issues Nos.
5 and 6. It may be recalled that defendants 5 and 6 were minor sons of defendant No. 4. It has already been held that defendants 4 to 6 had no paramount title and interest in the suit properties. Therefore, there is no question of minor defendants 5 and 6 paying up any dues under the two mortgage bonds (Exts.
7 and 7/a) ind the learned Subordinate Judge has rightly held so. Under these two issues the only question, which fell for consideration, was whether the two minor defendants, namely, defendants 2 and 3, were :n any way liable for the loans taken by defendant No. 1 Defendant No. 2, it may be recalled, was the minor son of defendant No. 1, aged 5 years on the date of institution of the suit, that is, on the 6th July, 1956, whereas defendant No. 3, who was the minor, illegitimate son of defendant No. 1, was aged 8 years on that date. Obviously, therefore, they were not born when the two mortgage bonds (Exts. 7 and 7/a) were executed by defendant No. 1. No doubt, a written statement was filed on behalf of the minor defendants 2 and 3 to the effect that defendant No. 1 was a drunkard and of immoral habits and was keeping a concubine. Therefore, the mortgage bonds were not binding on them nor were they for illegal necessities. 1 have already discussed the evidence of P. W. 15, who stated that defendant No. 1 had executed the two mortgage bonds for house-hold necessities, for marriage, construction of the house and for redeeming the previous mortgage. P. W. 15 had also stated that defendants 2 and 3 were not born when those mortgage bonds were executed. The fact with regard to the age of defendants 2 and 3 and their birth prior to the execution of the two bonds have not been controverted either in the written statement or by any other cogent evidence, by the defendants. Therefore, in my opinion, the learned Subordinate Judge rightly found that those two minor defendants 2 and 3 were born after execution of the two mortgage bonds. Defendant No. 1 was the sole owner of the properties in suit then and he could have disposed them of in any manner he liked and the two minors, namely, defendants 2 and 3, could not have assailed those mortgage bonds either on the ground of immoral purpose and for want of legal necessities.
26. Under issue No. 8, the learned Subordinate Judge, considering -/10/- annas per cent per mensem, corresponding to 71 per cent, per annum, as stipulated in the two mortgage bonds, found that the rate of interest was reasonable and the plaintiffs were entitled to full interest claimed over the principal sum of Rs. 18,000/- for the period prior to the suit. They were, therefore, entitled to full decree in the suit. He ordered the suit to be decreed on contest against the defendants with costs and pleader's fee at the minimum contested scale. He also directed interest pendente lite and future till realisation to be allowed to the plaintiffs over the decretal amount as against defendants first party at the rate of 6 per cent, per annum, but the total amount of interest, inclusive of the interest, for the period prior to the suit, in no way should exceed the principal amount of the two mortgage bonds, namely, Rs. 18,000/-. Defendants first party were directed to pay the decretal amount with costs within three months from the date of the order and in default of payment of the same within the period specified, the plaintiffs would be entitled to apply for final decree for the sale of the mortgaged properties or a sufficient part thereof and the sale proceeds thereof would be applied towards the satisfaction of the plaintiffs dues mentioned in the prelimi-
nary decree together with such amount as may accrue to the plaintiffs subsequently as interests and costs, and the balance, if any, would be paid to the defendants first party. In view of my finding that the suit of the plaintiffs was entertainable only to the extent of Rs. 12,000/- covered by the mortgage bond (Ext. 7), the finding with regard to the plaintiffs" claim or Rs. 6,000/- covered by the mortgage bond (Ext. 7/a) is not in accordance with law and has got to be set aside. The finding of the learned Judge under issue No. 8 should be confined only to the claim covered by the mortgage bond, Ext. 7.
27. Mr. Rajgarhia lastly contended that since there were two mortgage bonds contained in Exts. 7 and 7/a, the plaintiffs ought to have filed two different suits. In my opinion, there is no merit in this contention of the learned counsel. Reference may be made to the provisions contained in Section 67-A of the Transfer of Property Act, 1882, which provides:
"A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound on all the mortgages in respect of which the mortgage-money has become due."
In the present case defendant No. 1 is the sole mortgagor who had executed both the mortgage bonds, so much so, that the second mortgage bond, namely, Ext. 7/a, refers to the earlier mortgage bond (Ext 7). In the second mortgage bond there is further recital that the mortgagor could not pay any amount either towards principal or interest regarding the earlier mortgage bond as contemplated. Since he required further money, he was compelled to execute another mortgage bond for meeting family expenses and for carrying on business. The same question of law was involved in both the mortgage bonds. The defendants have also led same sort of evidence as regards both of them. However, since I have allowed claim I have allowed claim only on the basis of the mortgage bond (Ext. 7), the discussion in this regard has become more or less academic.
28. In conclusion, I have accepted all the findings of the learned Subordinate Judge, except his finding that the plaintiffs were casual money lenders, and the alternative finding under issue No. 4, wherein he had held that the firm had money lending licence as well to advance the two loans covered by Exts. 7 and 7/a. I have, as noted earlier, differed from this finding of his. 1 have held that instead of the firm, plaintiff No. 8, as it appeared from Ext. 26, had money lending licence in his individual capacity, which was effective only for five years beginning from the 18th January, 1940. There was no evidence on the record to hold that the plaintiff No. 7 had money lending licence at the relevant time to advance loan under Ext 7/a on the 4th February, 1946. Therefore, I have held that the plaintiffs could succeed only with regard to the loan advanced by plaintiff No 8 under Ext. 7. In consequence, I also differ from the finding of the learned Subordinate Judge under issue No. 8, wherein I have held that the plaintiffs were entitled to the decree only with regard to their claim Under Ext. 7. The judgment and the decree of the Court below are, therefore, modified accordingly, and the appeal is allowed in part. In the circumstances the, parties shall bear their own costs of this Court.
Anwar Ahmad, J.