PUSARAM Vs. MANMAL

JUDGEMENT

(1.) THIS is a special appeal against the judgment and decree of a learned Single Judge of this Court.

(2.) THE appellants are defendants mortgagees. A suit for redemption was brought by plaintiffs respondents. THEir case was that a certain shop had been mortgaged by one Pratapmal and his sons with Roop Ram and Kaniram on Kartik Badi 13, St. 1917, for a sum of Rs. 451/ -. THE plaintiffs claimed to be successors-in-interest of the mortgagors along with certain others who were made pro forma defendants. THEy sued for redemption of the shop from defendants 1 to 5 who were successors-in-interest of the mortgagees. THE suit had a chequered history, but it is enough to say that eventually the mortgage was held to be proved, and the trial court ordered redemption. THEre was an appeal by the defendants mortgagees, which was dismissed, and thereafter, there was a second appeal to this Court, which was also dismissed by the learned Single Judge.

(3.) THE learned Single Judge held that on this cross-examination the first two modes of getting acquainted with the hand-writing of a person were excluded, for Chhaganmal could not have been Hirachand writing, nor could he have received letters from him in reply to his own letters. But he was of the view that the mere fact that Hirachand died 19 years before Chhaganmal's birth was not sufficient to exclude the third possibility, namely, that in the ordinary course of business documents purporting to be written by Hirachand might have been habitually submitted to the witness. We have given this matter our anxious consideration, and have come to the conclusion (hat in the circumstances of this case even the third method of acquaintance with the handwriting must be held to be excluded. We have the evidence that Hirachand died 19 years before the birth of Chhaganmal. Obviously Chhaganmal would have nothing to do with the account books of the family till he attained the age of discretion say till about the age 18 to 21 years. THErefore, Chhaganmal would have no opportunity of having anything to do with any documents written by Hirachand till about 37 or 40 years after his death. Can it be said under these circumstances that documents written by Hirachand must have been habitually submitted to Chhaganmal in the ordinary course of business 37 years after Chhganmal's death. To our mind the answer to this question must be in the negative in the circumstances of this case. We are not unaware of case of record-keepers giving evidence because they came across certain signatures in the course of their duty as record-keepers. This is not a case of a record-keeper, and it does not stand to reason that 37 years after Hirachand's death any documents written by him would be habitually submitted to Chhaganmal. This possibility is completely ruled out when we find 'that the account book in question was discovered accidentally, and that other account books were not available, and had been taken away by the Baqayat Department sometime before 1920, and were never returned to this family. THE chances, therefore, of the writing of Hirachand having been submitted to Chhaganmal in the ordinary course of business are in the circumstances nil. We therefore, cannot agree with the learned Single Judge that on the cross-examination in this case the third possibility had not been ruled out. We are of opinion that the third method of Chhagan-mal's acquaintance with the writing of Hirachand is also ruled out by the cross-examination that is available on the record. In this view of the matter, we must hold that the document is not proved, and as that document is not proved the terms of the mortgage are not available, and the mortgage set up by the plaintiffs cannot be said to have been proved.