RAMANAND UPADHIA Vs. DWARKA SINGH; BACHCHU SINGH

JUDGEMENT

(1.) The two appeals Nos. 419 and 420 are connected and arise out of a suit brought by the plaintiffs respondents for redemption of a mortgage. They stated in their plaint that the mortgage was executed by one Musammat Phulbasi on the 3rd of June, 1876, in favour of Bhairon Singh, the predecessor in interest of the defendants. The mortgage was in lieu of Rs. 300 and was with possession. Musammat Phulbasi died leaving her surviving a son called Ram Sundar. He executed a sale deed in respect of the mortgaged property in favour of the plaintiffs. The latter served a notice on the defendants asking for redemption on the 27th of April, 1915, alleging that the mortgage had been satisfied by the appropriation of the timber on the property. The defendant declined to make over possession of the mortgaged property, and on the 18th of June, 1915, the suit out of which the two appeals have arisen was instituted by them for redemption. In addition to the recovery of the property without payment, the plaintiffs asked for Rs. 215 damages for mesne profits. The defendants resisted the claim on various pleas. They denied the mortgage of the 3rd of June, 1876, as also the allegation that Ram Sundar was the son of Musammat Phulbasi. They stated that the property in suit was their own and in any case they had been in adverse possession for more than 12 years. The original mortgage-deed was not produced in the case. The plaintiffs filed a certified copy of the deed, which was admitted by the court. The court held that as the original mortgage-deed must have been made over to Bhairon Singh, the mortgagee, and must have come, after his death, in the possession of the defendants, they should have produced it, and as they had failed to produce the original document, the plaintiffs were entitled to give secondary evidence by producing a certified copy of the original deed. The court further held that the presumption under Section 90 of the Evidence Act could be raised in respect of a certified copy filed on behalf of the plaintiffs. The revenue entries from 1864 up to the present day were also filed in the case which show that the owner of the property was the husband of Musammat Phulbasi and after his death her name was entered as owner and subsequently as mortgagor, After her death the name of her son, Ram Sundar, was substituted and he was shown as the mortgagor. The names of Bhairon Singh and the defendants were shown in the revenue papers ever since 1876 as those of mortgagees. Taking the said entries into consideration and the presumption under Section 90 of the Evidence Act the learned Munsif held the mortgage of 1876 proved. The other pleas in defence were also disallowed. The allegation of the plaintiffs with regard to the satisfaction of the mortgage was disbelieved. A decree was passed in favour of the plaintiffs respondents for redemption of the property on the payment of Rs. 300. Under the said decree the plaintiffs were to bear their own costs as also the costs of the defendants. Both parties appealed to the lower court, the plaintiffs with regard to costs and the defendants with regard to the decree for redemption.

(2.) The lower appellate court dismissed the appeal of the defendants, maintaining the decree for redemption, and accepted the appeal of the plaintiffs partially, making each party to bear his own costs. The defendants preferred two appeals to this Court, namely Nos. 419 and 420. The two appeals came up before me on the 20th of January, 1919, when three objections were urged on behalf of the appellants against the decree of the lower court, namely, first that the mortgage of 1876 is not proved, secondly that the defendants have proved their adverse possession for more than 12 years prior to the institution of the suit, and thirdly that no tender having been made by the plaintiffs, their claim is not maintainable. In my judgment of the 20th of January, 1919, I have given reasons for the rejection of the 2nd, and 3rd objections. The first objection relating to the proof of the mortgage of 1876, raised a point of law about which I found a conflict of authority in this Court and therefore I referred the case to a larger Bench. The only point now before us is whether the mortgage which the plaintiffs seek to redeem has been proved according to law. The contention for the defendants appellants is that the plaintiffs have only filed a certified copy of the mortgage of the 3rd of June, 1876, and no presumption under Section 90 can be raised in respect of it. The language of the section clearly shows that the section applies only to the case of an original document and not to a certified copy. On the other hand, the argument for the plaintiffs respondents is that the use by the Legislature of the words, "when any document is produced," does not limit the operation of the section to cases in which the document is actually produced in court. Secondary evidence of an ancient document is, therefore, admissible without proof of the execution of the original when a case is made out under Section 65 of the Evidence Act. In support of his argument the learned Counsel for the respondents relies upon the following cases:Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno (1880) I.L.R., 5 Calc., 886, Ishri Prasad Singh v. Lalli Jas Kunwar (1900) I.L.R., 22 All, 294, and Ponnambalath Paraparavan v. Karoth Sankaran Nair (1907) 12 Indian Cases, 453.

(3.) The reply for the appellants is that those cases were wrongly decided and that the provisions of Section 90 were not carefully considered, Reliance is placed by the appellants on a passage in the judgment of a Bench of this Court in first appeal No. 13 of 1913, decided on the 6th of July, 1914. The passage in question is as follows: "Section 90 of the Evidence Act only applies when the document is produced and the presumptions therein mentioned are presumptions in favour of a document which is actually produced. Even then the court is not bound to presume, although it is entitled to do so if it thinks fit. There is no presumption in favour of a document, the copy of which is produced in evidence." On a reference to the facts of that case it appears that no question of presumption under Section 90 arose, inasmuch as the loss of the original mortgage-deed had been satisfactorily proved. The observations about the application of Section 90 to a certified copy were merely an expression of opinion which need not have been made as far as the decision of that case was concerned. The cases relied upon by the plaintiffs respondents were not brought to the notice of the learned Judges who decided it. I agree with Mr. Justice Wilson, in his observations in the case of Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno (1880) I.L.R., 5 Calc., 886. The language of Section 90 does not limit or confine the application of the section to cases where the original document is actually produced in court. This Court also took the same view in the case of Ishri Prasad Singh v. Lalli Jas Kunwar (19 0) I.L.R., 22 All, 294, on the construction of the section contended for by the appellants. It would open a door to fraud by enabling a mortgagee to withhold the mortgage deed and thus defeat the claim for redemption. I think that the lower courts were right in applying Section 90 to the certified copy of the mortgage of 1876 filed by the plaintiffs. There is one more point to be considered in connection with the objection of the appellants. The learned Counsel has contended that no notice for the production of the original was served upon his clients, and omission to give such a notice is fatal to the case of the plaintiffs, and that they were not entitled to give secondary evidence unless and until they had served a notice upon the defendants to produce the original. I do not think that there is any force in this contention. According to Section 66 of the Evidence Act, secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, (or to his attorney or pleader), such notice to produce it as is prescribed by law, except in the six cases mentioned in the section. One of the exceptions is: "when, from the nature of the case, the adverse partly must know that he will be required to produce it." In the present case the defendants must have known that the mortgage deed in their possession would be required in evidence in the case. They failed to produce it. The plaintiffs were, therefore, entitled to give secondary evidence of the deed without giving any notice to the defendants or their pleader, calling upon them to produce the original. I would, therefore, hold that there is no force in the appeal and that the appeal should fail. Walsh, J.