BEHARI LAL Vs. MAKHDUM BAKHSH

JUDGEMENT

(1.) This was a suit upon a mortgage made by one Najaf Khan in favour of an ancestor of the plaintiffs in May 1868. The first set of defendants are the heirs of Najaf Khan. The second set are purchasers, after the mortgage, of various portions of the mortgaged property. The mortgage purports to have been made in consideration of a sum of Rs. 92 due on a prior mortgage of 1867 and two sums said to have been paid just before and just after the execution of the deed. The Courts below have held that the payment of these two sums has not been proved but that the mortgage holds good for the sum of Rs. 92, and interest thereon.

(2.) The evidence that the last mentioned sum was due upon a prior mortgage consists of a recital in the deed in suit and the production by the heirs of the mortgagor of the earlier deed which does not bear any endorsement showing that it has been paid off.

(3.) In second appeal, it is contended that the recital in the deed is not admissible in evidence against the defendants. The defendants-appellants rely upon the decision of this Court in Manohar Singh v. Sumirta Kuar 17 A. 428; A.W.N. (1895) 93 and the decisions of the Calcutta High Court in Brajeshware v. Budhanuddi 6 C. 268 at p. 269; 7 C.L.R. 6; Ghurphenni v. Parmeshwar Dayal 5 C.L.J. 653; Bisheshwar Dayal v. Harbans Sahay 6 C.L.J. 659; 3 M.L.T. 38 and Rahim Jan Ribi v. Iman Jan 17 C.L.J. 173; 15 Ind. Cas. 698.