MUNSHI EHTISHAM ALI Vs. JAMNA PRASAD

JUDGEMENT

(1.) EHSAN Ali Khan, being in possession of a bazaar cailed Ehsanganj, mortgaged it to Sheo Prasad by a mortgage, dated the 9th November 1873, and further encumbered it with charges in favour of the mortgagee, the total amounting to Rs. 2,073. The mortgage was a usufructuary one, and the mortgagee was put in possession of the bazaar. Along with the bazaar certain other properties were also mortgaged. On the 13th December 1882, Ehsan Ali Khan is said by the plaintiff, who is the present appellant, to have sold the property, subject to the mortgage and charges, to the appellant's predecessors entitle for Rs. 3,000; it being calculated that Rs. 2,800 would be the amount of the encumbrances with interest and costs and Rs. 200 the value of the equity of redemption. Therefore, only Rs. 200, as the plaintiff alleges, was paid to Ehsan Ali Khan. The devolution of the property thus sold, if it was in fast sold, from the original vendees to the appellant is not in dispute.

(2.) ON the 16th October 1911, the plaintiff (the present appellant), with another co-plaintiff whose interest he has since acquired, instituted this suit, claiming under the alleged deed of sale and the subsequent devolution to be representatives of the original mortgagor, against the respondents who are the representatives of Sheo Prasad, the original mortgagee; asserting their title to redeem and alleging that upon the true taking of the accounts the mortgage charges had been fully paid off, that sertain terms as to interest and compound interest were penal or illegal, and that, in truth, money was due to them. from the representatives of the mortgagee. They prayed for possession, for a decree for the surplus amounts and for other relief.

(3.) DURING the trial the plaintiffs stated that the original sale deed was lost but; that it had been registered; and they offered as secondary evidence a copy certified by the Registrar; and the first matter to be deter. mined is whether the copy could be admitted as secondary evidence. The plaintiffs, for the purpose of proving the loss, called the son of Ewaz Ali Khan, who deposed that he, on behalf of himself and his brother, noli their share of the property to the second plaintiff, the present appellant; that he was asked to hand the sale-deed over; that he had seen it among his father's papers; that he searched for it and could not find it. They also sailed another witness who had acted as agent in the matter, who said that he- had asked the son for the deed ; that he understood that he searched for it, but he said he could not find it. Neither of these witnesses; was cross-examined. But the case made by the defendants in their written statement , was insisted upon, namely, that the deed had not been kept by the vendees, but had been i handed back to Ehsan Ali Khan because the transaction had become abortive. No evidence, however, was given to prove this cntention as a substantive fact except evidence to show that, as pleaded, Ehsan Ali Khan had subsequently to the alleged transaction dealt with the property as if he had not sold it and in the manner pleaded in the defendants' written statement.