VAIDYANATHASWAMY IYER Vs. NATESA MALAVARAYAN

JUDGEMENT

(1.) The 2nd plaintiff is the appellant. The suit was brought for redemption of a mortgage effected under a document, the counterpart of which is alleged to be Ex. H, which is dated in 1824.

(2.) The main question for consideration therefore is whether Ex. H is genuine. The Court of First Instance refused to presume under Section 90 of the Evidence Act that it was a genuine document and called for proof of the same and as no reliable proof was forthcoming that Court dismissed the plaintiff's suit.

(3.) The Lower Appellate Court confirmed the decree of the Court of First Instance on substantially the same grounds. The point therefore for decision is whether the Lower Court ought to have used the discretion vested in them by Section 90 of the Evidence Act in favour of the plaintiffs.