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Bombay High Court
Balaji Raoji Kolhe vs Gangadhar Ramkrishna on 28 January, 1908
Equivalent citations: (1908) 10 BOMLR 276
Author: Chandavaekar
Bench: Chandavarkar, Knight


Chandavaekar, J.

1. We are unable to agree with the two Courts below in holding that the deed on which the appellant sued is a lease and not, what it expressly purports to be a mortgage. The description of it by the parties as a mortgage deed is, indeed, not conclusive; but the terms of it leave no doubt that the land specified in it was intended to be a security for the payment of Rs. 187 paid to the executant by the party in whose favour the deed was executed. The deed says.–“when you receive the proceeds, according to what is stated above,” (i.e. by cultivation of the property during twenty-one years), “the said amount of rupees borrowed from you is to be (considered) as paid up.” That plainly means that the land was to be regarded as security for the debt. Then it proceeds : “nothing is then to be due from us”-that is, the amount of Rs. 187 was treated as a debt, which, if satisfied out of the proceeds of the land, was to be treated as liquidated. So also the deed says further on :-” Your Rupees are paid up when you get the proceeds without obstruction for twelve years.” If there is obstruction, and no proceeds are realized, the executant undertakes to make up the loss. All these conditions are inconsistent with any intention to treat the sum of Rs. 187 as a mere rent paid in advance for the period of twenty-one years.

2. The District Judge has indeed found upon the hypothesis that the deed is a mortgage, that the transactions of 1877-78 did not operate to extinguish the equity of redemption, because, he observes, ” the proceeding was wholly collusive and probably engineered by the defendant’s father through his relations and friends.” We are, however, unable to accept this finding as one of fact conclusive in law in the absence of any reasons given by the District Judge and in the face of the Subordinate Judge’s careful discussion of the evidence, in the course of which he has pointed out that the plaintiff alleged no fraud in the plaint but made a mere vague allegation of it in a purshis.

3. It is an elementary rule of law that where fraud is set up, particulars of it must be given and it must be based upon a specification of the facts relied upon as constituting fraud. No such particulars being given in the plaint, the Subordinate Judge ought to have required the plaintiff to amend his plaint by specifying the fraud alleged; and, in case of failure by him to amend, the Subordinate Judge ought to have refused to enter into the question. Instead of that the Subordinate Judge allowed an issue to be raised covering the case of fraud. Procedure of this kind is very much to be deprecated, because it encourages loose pleadings and false; cases We desire to impress upon Subordinate Judges the supreme importance and necessity of insisting that a case of fraud shall not be the subject of mere vague allegation in the plaint or written statement; but that it shall be supported, by particulars; and that if that condition is not complied with, the party relying on a case of fraud, shall not be allowed to raise the case in the form of an issue. It is generally advisable, indeed, when framing an issue on the point of fraud, to set forth in the issue itself a brief statement of the fraud alleged, or at least to refer to the passage in the pleadings where it is specified. If this be made an invariable practice, the door will be closed to vague and indiscriminate allegations such as that which we find in the present case. We are constrained to make these remarks because we observe that a lax practice in this respect has grown in the mofussil Courts much to to the detriment to justice and honest pleading.

4. In the present case, though the allegation as to fraud was vague, both parties went to hearing on an issue raised on the question ; and it is too late now for us to hold that the plaintiff ought not to have been allowed to rely upon that case. The; Subordinate Judge found on that issue against the plaintiff on the ground that there was no evidence of fraud but it is not clear whether by that he meant that there was no evidence, satisfactory to his mind or no evidence, at all. The District Judge, as we have already remarked, has found on the question in favour of the plaintiff without giving any reasons or any discussion of the evidence and without apparently taking into consideration what the Subordinate Judge has pointed out, viz. the fact that the plaintiff’s case as to fraud is of a vague character. The question is one into which, the District Judge should enter” with thoroughness. As his decision is based upon the preliminary question-whether the deed sued on is a lease or a mortgage- and as we differ from him on that question, we reverse the decree and remand the appeal for disposal according to law with reference to the foregoing observations. Costs shall abide the result.

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