MT RANGILI Vs. PEAREY LAL

JUDGEMENT

(1.) This is a plaintiffs appeal against an order of remand. The facts of the case have been fully set out in the judgment of the Court below and need not be repeated. The plaintiffs brought this suit for redemption of a usufructuary mortgage dated 23 May 1872 executed by Parmai, Likkha and Pemi in favour of Khub Chand and Lakshmi Das. The plaintiffs are the representatives of the mortgagors while the defendants are the representatives of the mortgagees. The suit was contested on various grounds. The trial Court held that the plaintiffs were not liable to pay anything under the mortgage as on accounting it was found that the plaintiffs were entitled to Rs. 1095-8-9. The defendants appealed from the decree of the trial Court. Before the Appellate Court the defendants relied upon a tacking bond dated 16 July 1872 under which the same property was mortgaged by the same mortgagors in favour of the same mortgagees. It was pleaded that the plaintiffs were not entitled to a decree unless and until they paid off the money due under the second mortgage. The defendants prayed for permission for the amendment of the written statement. The lower Appellate Court granted permission for amendment and remanded the suit to the trial Court with directions to try the suit in the light of the amended written statement. The plaintiffs did not appeal from this order of remand. The learned Munsif upon a consideration of evidence held that the bond of 16 July 1872 was not legally proved. He accordingly maintained the decree originally passed by him. Upon appeal the lower Appellate Court was satisfied that the document of 16 July 1872 was a valid mortgage and was binding on the plaintiffs. The case was then remanded to the trial Court for taking accounts and passing an appropriate decree. The plaintiffs have now come to this Court in appeal. Learned counsel for the appellants has challenged the order of the Court below and has raised several points in support of his contention. I now proceed to examine them in detail.

(2.) It is contended that the defendants were not entitled to rely upon a copy of the bond of 16 July 1872 as the loss of the original was not satisfactorily proved. The bond in suit was executed in favour of Khub Chand and his son Lakshmi Das. Both the mortgagees are admittedly dead. Lakshmi Das left four sons. Jagannath is one of them. It is admitted that Jagannath is the head of the family. The document in question was summoned from Jagannath who failed to produce it. In my opinion, it was a sufficient compliance with law to have summoned the document from the head of the family now representing the mortgagees. No objection to this effect appears to have been taken in the Court below and apparently it was accepted on behalf of the appellants that the respondents were entitled to rely upon a copy of the original document provided they proved the execution and passing of consideration in accordance with law. In my opinion there is no force in this objection.

(3.) The next point urged by learned Counsel is that there is no presumption of genuineness of a copy within the meaning of Section 90, Evidence Act. Under Section 90 where any document, purporting or proved to be 30 years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. This proposition of law is not disputed. It follows therefore that the burden of proving the execution of the bond of 1872 lay on the defendants. The Court below upon an examination of evidence was satisfied that the bond of 16 July 1872 was legally proved. Evidence was produced to the effect that all the attesting witnesses were dead and that two of the attesting witnesses, namely Bhojraj and Mohammad Khan, signed or thumb-marked the document as attesting witnesses. Learned counsel contends that the evidence relied upon by the Court below should be rejected because one of the attesting witnesses described by the witnesses as Mohammad Khan is really Kammu Khan or Najju Khan. There is no doubt that the copy produced in Court supports the contention of learned Counsel, but this point was never raised in the trial Court.