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TMI Blog1921 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 certain 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. The defendants traversed the statements in the plaint and pleaded that the alleged deed was not genuine or for consideration; that no right accrued from it to the vendees; that they did not pay any consideration money to Ehsan Ali Khan and refused to complete; that, accordingly, Ehsan Ali Khan cancelled the deed and retained his interest; that he in fact dealt with it subsequently by farther charges in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, was given to prove this contention 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. 5. In these circumstances the Subordinate Judge accepted the evidence that the deed was lost, and allowed the copy from the register to be admitted as evidence. The plaintiffs then put it in, and further produced two witnesses who swore that they had seen the deed signed and ₹ 200 paid over. These witnesses were the servants of one Imtiaz Ali, a gentleman of position, and an uncle of the plaintiff, Sakhawat Ali. And it appeared in evidence that Imtiaz Ali had negotiated the sale probably with a view to the benefit of his nephew. His servants, therefore, might very naturally have had knowledge of the transaction. There were three witnesses to the deed, but it was proved that they were all dead. It was not disputed that the copy produced at the trial was a correct copy from the register and that the deed had apparently been registered with all due formalities, though there was no indication upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They went so far as to determine that the ₹ 200 had not been paid to the mortgagor; and they seem to have thought that the mortgagor could be considered in adverse possession, and that, therefore, the defendants aould rely on the Statutes of Limitations after twelve years, and that the heirs of Ehsan Ali Khan ought to have been made parties to the suit. They further said that a surrender of rights by the return of a sale-deed was not uncommon in that country, and that a sale might become inoperative by surrender or the failure of the parties to enforce it. 9. It will be seen from this that the two matters of the admissibility of secondary evidence of the deed, and what ought to be deemed to be the truth of the original transaction, run into one another. 10. It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not proved. 12. As to the alleged subsequent dealings by Ehsan Ali Khan with the property, they could not, if regarded as declarations in his own favour, be received in evidence on behalf of those claiming under him, any more than they could be received if he were himself the defendant. They could not be regarded as acts of ownership so as to prove adverse possession, because he never was in possession, the possession remaining in the mortgagee. 13. As regards the duty to make Ehsan Ali Khan's heirs parties, subject to one contention raised at the Bar on behalf of the respondents, their Lordships have no hesitation in saying there was no such duty. The plaintiffs sought to redeem; they had to make out their title to redeem, and they gave prima facie evidence. It was for the defendants to rebut it and call in answer evidence, if there was any, in rebuttal. Moreover, the defendants had dispensed the plaintiffs from any necessity, if there ever had been any, to make Ehsan Ali Khan's heirs parties, because they themselves pleaded that all their rights had been transferred for ₹ 10. 14. The one circumstance to be considered was that suggested at the Bar, that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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