Surgadass vs Wahidunnessa And Ors. on 19 February, 1879

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Calcutta High Court
Surgadass vs Wahidunnessa And Ors. on 19 February, 1879
Equivalent citations: (1880) ILR 5 Cal 39
Author: Garth
Bench: R Garth, Prinsep


Garth, C.J.

1. We think that there is no ground for this appeal, and that the Court below has come to a just conclusion. The first and main point raised by the appellant is, that there is no sufficient evidence to make Mir Haider Ali, the ancestor of the defendants, liable upon the bond in question. Now the first witness called by the plaintiff was a mookhtar in the employ of Mir Hadi Hossein, the uncle of Mir Haider, who lived close by him, and was in the habit of transacting his business, and borrowing money for him by means of bonds. This witness says, that he received from Mir Haider’s karpurdaz, Ali Akbar, a blank paper signed and sealed by Mir Haider, and stamped with a bond stamp sufficient to cover Rs. 16,000; and that, by the instructions of Mir Hadi Hossein, he drew up the bond in question upon this paper for Rs. 16,000, having no doubts of the correctness of the transaction. It then appears clear from the evidence, that Rs. 16,000 was duly paid by the plaintiffs to Ali Akbar, Mir Haider’s karpurdaz, upon the faith and security of this bond. It is now argued by the appellants, that there is no sufficient evidence that Mir Haider did really seal and sign the stamped paper. But the first witness had drawn up several deeds previously, which were sealed and signed by Mir Haider. He speaks positively to the genuineness of the seal and signature upon this particular bond, and not a question is put to him upon this point on cross-examination. Moreover, it is proved that the bond was afterwards duly registered, so that if any fraud had been practised on Mir Haider, either by his karpurdaz or by his uncle, he could almost certainly have known of it. Then it also appears, from the cross-examination of the first witness, that Mir Haider, when he was afterwards at Mecca, was in communication with Mir Jaffer Ali, one of his own appointed mookhtars, upon the subject of this very bond; that he wrote to him to make a settlement with regard to it; and that measures were taken to carry out his directions: whereas surely, if the bond had been a fraud upon him and unauthorized, he would have repudiated, instead of dealing with it as a valid instrument. There is no evidence whatever on the part of the defendants to contradict or throw suspicion upon the plaintiff’s case; and really the only point which the defendants have seriously attempted to make is, that Mir Haider ought not to be bound by a document of which, so far as appears, he did not know the contents. But we have already observed, in the course of the argument, that in the case of a bill-of-exchange or promissory note, an endorsement made before the instrument is drawn, renders the endorser liable for any amount warranted by the stamp, which may afterwards be filled up upon the face of the bill–(See Byles on Bills, 6th edition, p. 127.) In Russel v. Langstaffe (2 Douglas, 514), where several promissory notes had been endorsed by the defendant on blank forms without any amount being mentioned, Lord Mansfield says: “Nothing is so clear as that an endorsement on a blank note is a letter of credit for an indefinite sum. It does not lie in the defendant’s mouth to say that the endorsements were not regular.” But then it is argued, that the principle which would be applicable in the case of a bill or note, would not apply to such an instrument as we have before us, which is not a mere money bond, but also a pledge by way of mortgage of immoveable property for securing the money borrowed. But no authority has been adduced to satisfy us that there is any good ground for this distinction. If a gentleman in the position of Mir Haider chooses to entrust to his own man of business a blank paper duly stamped as a bond, and signed and sealed by himself, in order that the instrument may be duly drawn up, and money raised upon it for his benefit, and if the instrument is afterwards drawn up, and money obtained upon it from persons who have no reason to doubt the bona fides of the transaction, we surely must take it, in the absence of any evidence to the contrary, that the bond was drawn in accordance with the obligor’s wishes and instructions. It would, indeed, be hard upon the plaintiff, who has advanced his money under such circumstances upon the faith of the genuineness of the instrument, to be told, that although the obligee undoubtedly intended the money to be raised by means of a bond, that did not authorize Mir Hadi Hossein to pledge the obligee’s immoveable property. The probability is, that unless the immoveable property had been pledged, the money could not have been obtained. We think, therefore, that the Court below has rightly found the bond to be genuine and duly authorized; and we also think that it has awarded a reasonable sum by way of interest. The interest payable under the bond itself was 15 per cent.; and the interest which the Judge has given to the plaintiff from the time when the bond became payable is 12 per cent. which, he says, is the customary rate in that part of the country.

2. The appeal must, therefore, be dismissed with costs.

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