MIRA BAI Vs. JAI SINGH

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for redemption of mortgage of a house situated in village Tantoti, District Ajmer.

(2.) THE plaintiffs' case is that their ancester Tejpal made a usufructuary mortgage of the house in question for Rs. 400 in favour of Nandlal and Naharsingh ancestors of the defendants by a registered mortgage deed dated 16. 2. 1960 and that they were entitled to redeem the same on payment of the principal sum of Rs. 400. THEy also claimed mesne profits at the rate of Rs. 10 per month from the date of suit till the delivery of possession of the house to them. THE defendants denied the alleged mortgage. THE learned Munsiff, Kekri held that the alleged mortgage was not proved, and consequently dismissed the suit. On appeal by the plaintiffs the judgment and decree by the trial court were upheld by the learned Additional Civil Judge, Ajmer. Consequently, the plaintiffs have come in second appeal to this Court

(3.) IN Karuppanna Gounder vs. Kolandaswami Gounder (7) it was held that once the case for introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under sec. 57[5] of the Registration Act, without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. It may be noted that it had been found that the executant and the attestators of the original deed were all dead and it was not possible to prove the same by direct oral evidence. It further appears that the plaintiffs had done all they could by giving notice to the defendants to produce the original but the notice had not been complied with. Learned counsel has not been able to produce a single authority where sec. 69 of the Evidence Act has been pressed into service even when no notice had been given to the party to produce the document. As the wordings of sec. 69 clearly indicate its operation is restricted to cases where a notice to produce the document has been given to the opposite party. Admittedly in the present case the defendants were not given notice to produce the document, and, therefore I am of opinion that sec. 69 cannot come to the plaintiffs' aid. Sec. 57[5] of the INdian Registration Act, 1908 simply provides that all copies given under this section shall be signed and sealed by the Registering Officer and shall be admissible for the purpose of proving the contents of the original document. This does not do away with the provisions of sec. 68 of the Evidence Act, the relevant portion of which reads as follows - "68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. "