NATHU LAL Vs. GOMTI KUAR

JUDGEMENT

(1.) THE suit out of which this appeal arises was brought on September 8, 1928, by the appellants (plaintiffs Nos. 3-5) and respondents Nos. 29 and 30 (plaintiffs Nos. 1 and 2) against respondents Nos. 1-28 (de- fendants Nos. 1-28), claiming redemption of certain properties on the allegation that the deed of sale of the said properties dated March 25, 1844, executed by one Gulab Singh (the representative, in interest of the plaintiffs) in favour of Het Ram and Tula Ram (the representatives in interest of the defendants) and an alleged agreement to transfer the said properties bearing the same date and executed by Het Ram and Tula Ram in favour of Gulab Singh formed one transaction and constituted a mortgage by conditional sale of the properties comprised in the sale-deed.

(2.) IN the plaint, plaintiffs mentioned March 26, 1844, as the date of the mortgage completed by the execution of the two documents and they filed with the plaint a certified copy of the: said sale-deed (which is marked exhibit I) bearing date March 26, 1844, and the original agreement to transfer of the same date (which is marked exhibit B). The1 defendants, who represent the original mortgagees and their alienees, filed separate written statements, in which they denied the right of the plaintiffs to redeem on various grounds.

(3.) IT may be mentioned that the agreement to release, when it was filed with the plaint, had two holes, one just above and partly eliminating the date 26th occurring at the end of the document and the other after the words, " has sold " occurring in the first line. On May 18, 1929, when arguments were being heard, respondent No.15 made an application alleging that the holes were made subsequent to the filing of the said document in Court. The Munsif enquired into the allegation and held that it was utterly baseless. On considering the effect of the torn parts of the document, he was of opinion that they were of no consequence and that the document was genuine. As the document purported to be more than thirty years old and was produced from proper custody, he admitted it, exercising the discretion vested in him under Section 90 of the Indian Evidence Act to presume that the signatures and attestations were genuine.