Manohar Singh v. Sumirta Kuar

Knox and Burkitt, JJ.:— The sole point which arises for decision in this second appeal is whether the Courts below have erred in law in throwing the burden of proof of actual payment of the mortgage-money on appellant, who was plaintiff.

[430] There is no doubt that if the burden of proof was rightly laid, the findings of fact arrived at by the lower appellate Court are sufficient for the determination of the appeal and cannot be disputed. The respondent was in possession of the property in dispute, having purchased the same under a sale following a decree of a Bent Court dated the 16th of January 1888, the date of the sale being the 20th of August 1891. The appellant sought to recover possession of the same property on a registered deed of mortgage by conditional sale over the same property purporting to have been executed in his favour on the 19th of August 1886. The respondent virtually put the appellant to proof of the document under which he claimed, and what is contended before us is that, upon the mere production by the appellant of the deed of mortgage which had been thus questioned, and on the fact that deed of mortgage contained an endorsement certificate by the Registrar in the usual manner under the Indian Registration Act, s. 59, the burden of proof had then and there shifted on to the shoulders of the respondent. Precisely the same question was considered in Brajeshware Peshakar v. Budhanuddi. We fully concur in the law laid down by the Chief Justice at pages 277 and 278, where he says that in his opinion in that case the effect of the recital as well as the decision of the Privy Council in Chowdhry Deby Persad v. Chowdry Dowlut Singh has been misunderstood. A recital in a deed or other instrument is no doubt in some cases conclusive, and in all cases evidence, as against the parties who make it, and it is of more or less weight or more or less conclusive against them according to circumstances. It is a statement deliberately made by those parties, which, like any other statement, is always evidence against the persons who make it. But it is no more evidence as against third persons than any other statement would be.” To the same effect is s. 60 of Act No. III of 1877 which does not provide that a certificate signed by a Registering Officer shall be considered conclusive proof, but simply provides that it may be admissible for the purpose of proving that the facts mentioned in the endorsement referred to in s. 59 have [431] occurred as therein mentioned. It requires more than this, especially where, as in the present case, the surrounding circumstances were suspicious and not explained.

We dismiss the appeal with costs.

Appeal dismissed.