- (1.) THIS lis an appeal |by the defendant against the appellate judgment and decree of the learned District Judge, Alwar dated 24th October, 1950. It arises out of a suit for redemption brought by the plaintiff Sita against Mangla, Panchia and Govinda defendants. The property in dispute are 5 plots, namely 898 (area 16 biswas), 903 (area 7 biswas), 899 (area 12 biswas), 902 (area 9 biswas) and 900 (area 7 biswas) situated in Guwada Bhopawala in the Jagir of Saleta. It was alleged that in Svt. 1970-71 the plots in dispute were mortgaged with possession by the plaintiff's father Ramsahai to Raghunath, father of Mangla and Panchia, defendants Nos. 1 and 2, and Isshria, father of Govinda, defendant No. 3, for a sum of Rs. 42/- and a mortgage deed was executed by the mortgagor. It was alleged that on 31st May, 1945 the plaintiff filed an application for redemption of the plots in dispute in the revenue court, but it was dismissed summarily by the order dated 18th October, 1945, It was prayed that a decree for redemption be given to the plaintiff in respect of the plots in dispute on payment of Rs. 42/- to the defendant. THIS suit was instituted on 31st July, 1946 in the court of Munsif, Thanagazi in the then State of Alwar.
(2.) THE defendants filed their written statements denying the factum of mortgage and the execution of any mortgage-deed. It was pleaded that the owner of the property in dispute was Jagirdar Ram Singh and the plaintiff's father had no right to mortgage. Learned Munsif framed the issues which when translated into English read as follows: - (1) Whether the plaintiff was an old tenant of the property in dispute and whether his father had mortgaged it with Raghunath, father of Mangla and Panchia, and Isshria, father of Govinda defendant for a sum of Rs. 42/-? (2) Whether the Jagirdar was a necessary party to the suit? and (3) Whether the plaintiff was not entitled to sue because a suit about the same property had been decided between the parties previously by the Nazim? Learned Munsif decided all the issues against the defendants and gave a decree for redemption to the plaintiff on payment of Rs. 42/- by his judgment dated 9th May, 1950. It may be noted that the original plaintiff Sita died during the pendency of the suit and in his place Harnath, the present respondent, was substituted. The defendants went in appeal but the learned District Judge, Alwar dismissed the appeal and confirmed the decree of the first court by his judgment dated 24th October, 1950. The defendants came in second appeal to this Court which was dismissed by the judgment of this Court on 19th November, 1952. The defendants made an application for review which was granted on the ground that according to the law in force at the time the suit was filed, second appeal lay on the question of fact also and no notice was taken of this law at the time of the decision of the second appeal. Before discussing the arguments of the learned counsel for both the parties I may say that the appellant filed one application and the respondent two for the additional documentary evidence in second appeal. Having heard learned counsel I have been of opinion that no case is made out for the admission of additional evidence and consequently dismissed all the three applications by a separate order dated today. It has been argued by Sri Jain on behalf of the appellant that it was admitted by the plaintiff-respondent that a mortgage-deed was executed at the time of the alleged mortgage. Neither original mortgage-deed nor its copy as required by sec. 63 of the Evidence Act has been produced in this case. The plaintiff has sought to prove the factum of mortgage by oral evidence. None of the witnesses has stated that he had read the mortgage-deed. Consequently the witnesses could not prove the contents of the document. It was argued that the witnesses have simply said that mortgage was made in their presence by Ramsahai in favour of Raghunath and Isshria for a sum of Rs. 42/ -. This evidence was inadmissible as u/s 91 of the Evidence Act which lays down that when the terms of a contract or of a grant of any other disposition of property have been reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of the property or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Indian Evidence Act. Reliance was placed upon the following rulings : - Maung Po Din vs. Maung Po Nyein (1), Ma Mi vs. Kallander Ammal (2), Dalu vs. Juharmal (3 ). It was argued that even the lower courts have not relied upon the documentary evidence produced by the plaintiff. In the circumstances there was no legal evidence upon which it could be held that the plaintiff's father had mortgaged the property in dispute with possession to Raghunath, father of Panchia and Mangla and Isshria, father of Govinda defendant. On behalf of the respondent it was argued by Sri Rastogi that the oral evidence produced by the plaintiff, which has been believed by both the lower courts, proved that mortgage with possession of the property in dispute was made in Svt. 1970-71 by the father of the plaintiff in favour of the father of defendants Nos. 1 and 2 and the father of defendant No, 3. It was argued that sec. 91 of the Evidence Act did not bar the proving of factum of mortgage or passing of consideration. What it prohibited was the terms of a contract or of a grant or of any disposition of property. Neither the factum of mortgage nor the consideration for the mortgage can be said to be a term of the mortgage-deed to attract the provisions of sec 91. Reliance was placed upon the following rulings: Tejraj vs. Mohanlal (4), Parikhit Thapa vs. Nidhi Thapa (5), and Viraraghavulu vs. Yellamanda (6 ). The only point to be considered in this appeal is whether it has been legally proved that a usufructuary mortgage of the property in dispute was made by Ramsahai, father of the plaintiff Sita, in favour of Raghunath, father of Panchia and Mangla and Isshria, father of (Govinda defendant, for a sum of Rs. 42/- in Svt. 1970-71. It has been proved by the evidence of Manna P. W. 1, Setia P. W. 2 and Mangla P. W. 3 that Ramsahai, father of the plaintiff Sita, was in possession of the property in dispute and he mortgaged this property with possession to Isshria and Raghunath and that Rs. 42/- were paid by the mortgagees to Ramsahai on account of the mortgage. They have stated that mortgage-deed was executed on a stamp paper. Manna stated that mortgage was made in about Svt. 1972-73 and Setia stated that about 30 or 35 years back the mortgage in dispute was made. Mangla stated almost the same thing as Manna P. W. 1. Manna gave his age as 60 years. Setia as 55 and Mangla as 50 at the time of the evidence on 25th August and 10th October, 1949. They were therefore of sufficient age at the time of the mortgage in question and could very well depose to the factum of mortgage. They were cross-examined on behalf of the defendants but nothing came out in their cross-examination from which their testimony in examination-in-chief could be shaken. None of the defendants dared to come into the witness box. They could have very well said that the property in dispute was not mortgaged with their father as alleged by the plaintiff. They could also depose that they had no mortgage-deed in their possession. This was not done. Therefore there is no reason to disbelieve the evidence of the plaintiff's witnesses. The only question that has got to be seen is whether from the statements of the plaintiff's witnesses it has been legally proved that at about the time alleged by the plaintiff a mortgage was made by the plaintiff Sita's father in favour of Raghunath and Isshria and as to what was the mortgage-money. It is true that it has been admitted by the plaintiff from the very beginning that the mortgage deed was executed at the time of the mortgage. Neither the original mortgage-deed has come before the court nor has any copy of it as required, by sec. 63 of the Evidence Act been filed. Sec. 61 of the Evidence Act says that the contents of documents may be proved either by primary or by secondary evidence. Sec. 63 applies only when the contents of documents are sought to be proved. I do not think that the plaintiff's witnesses were examined to prove the contents of any document. They were simply produced to prove the factum of the mortgage and the consideration which passed for the mortgage. No advantage can therefore be derived by the appellant by the provisions of sec. 63 of the Evidence Act in this case. Learned counsel for the appellant argued that a written document having come into existence at the time of the mortgage no other evidence could be produced excepting the original document or secondary evidence admissible under the provisions of the Indian Evidence Act to prove the terms of the mortgage in question. The question to be examined is whether what the witnesses for the plaintiff have proved are the terms of the mortgage-deed. I do not think proving factum of a mortgage is the same thing as proving the terms of the mortgage nor do I think that proving the consideration for a mortgage is the same thing as proving the terms of the mortgage. Sec. 91 of the Evidence Act lays down a very salutary principle that the terms of a contract or of a grant or any other disposition of property which had been reduced to the form of a document would not be allowed to be proved except by the document itself or secondary evidence admissible under the provisions of the Indian Evidence Act because it is very unsafe to rely upon oral evidence as regards the terms of a contract or of a grant or of any other disposition of property. Unless a witness has read the document itself, it is very unsafe to rely upon his memory regarding the terms contained in a document. The terms may be very simple or they may be very complicated. Once it is allowed that the terms of a document can be proved by oral evidence, oral evidence would be admitted in a complicated case as well as in a simple case. However in the case of factum of sale or mortgage or the passing of consideration the same thing cannot be said. It was held by Madras High Court in Viraraghavulu vs. Yellamanda (6) referred to "when the existence of a sale is in question and not its terms, oral evidence is admissible. " In that case the existence of a sale itself was in question. The sale deed was registered but only a copy of it was produced in court which was held to be inadmissible and it was argued that oral evidence about the sale was inadmissible u/s 91 of the Evidence Act. It was held that oral evidence was not inadmissible to prove the existence of the sale. Reliance was placed upon a ruling in Sibulsain Mookerji vs. Bhuthath Gerchait (7) in which it was held that - "where the contents of a lease are in question it is necessary to prove them by the production of the document, but where this is not case, oral evidence of the Patta is admissible. " Reliance was also placed upon a ruling of Bombay High Court in Chhotalal Aditram vs. Bai Muhakore (8) where the factum of partition was allowed to be proved without the production of the deed. Reliance was also placed upon a ruling of Calcutta High Court in Amir Ali vs. Aykub Ali (9) in which it was held that oral evidence of rent under a tenancy was admissible although the lease was inadmissible in evidence. In a ruling of this Court in Tejraj vs. Mohanlal (4) referred to above, it was held that sec. 91 of the Evidence Act bars evidence in proof of the terms of the disposition and no more and that the fact of partition itself was not a term of the document. In Parikhit Thapa vs. Nidhi Thapah (5), cited above, there was a sale of immovable property of the value of less than Rs. 100/- and delivery of possession was given. It was held that the factum of actual delivery of possession cannot be deemed to be a term of the contract as provided for under the provisions of sec. 91 of the Evidence Act and as such the plaintiff was entitled to prove the factum of actual delivery of possession in spite of the fact that the sale deed was unregistered. Learned counsel for the appellant has relied upon a ruling in Maung Po Din vs. Maung Po Nyein (1), referred to above. It that case it was held that secondary evidence of a document is evidence of its contents by person who read the document and oral evidence as to the terms of a mortgage which have been reduced to writing is not evidence of the contents of the document". This proposition cannot be disputed. If it is necessary to prove the contents of a document they can be proved only by the original document or by secondary evidence within the meaning of sec. 63 of the Evidence Act. But from the same ruling it would be found that where the sum secured by a mortgage-deed is less than Rs 100/- and the mortgage is effected by a document it is necessary that it should be registered and where delivery of possession U made to the defendant no document is necessary and such delivery of possession if proved would constitute a valid mortgage. In the present case according to the oral evidence of the plaintiff delivery of possession was given to the mortgage and the consideration for mortgage was less than Rs. 100/ -. The law therefore, did not require to validate the transaction that a registered mortgage-deed or any deed whatsoever should be executed. It appears from the report that it was asserted in that case that the contents of the document had been proved by oral evidence and the court was perfectly justified in holding that the contents could not be so proved. They could be proved by original document or by secondary evidence within the meaning of sec. 63 of the Evidence Act. In Ma Mi vs. Kallander Amma. (2), cited above, their Lordships of the Privy Council held that "the statements of the witnesses who have not themselves read the document are not secondary evidence of the contents of the document within the meaning of S. 63 and that oral evidence of the contents must be given by some person who had seen those contents that is to say, who had read the document. " It cannot be disputed, as has been said above, that for proving the contents of a document the original document or secondary evidence is necessary and that secondary evidence should be such as is warranted by the provisions of sec. 63 of the Evidence Act. However this ruling does not say that the factum of sale or the passing of consideration cannot ; e proved except by the document itself or by secondary evidence or that the factum of sale or mortgage or passing of consideration is a term of the document within the meaning of sec. 91 of the Evidence Act. In the ruling of this Court in Dalu vs. Juharmal (3), the same view was taken that 'the statement as to the contents of a document by a witness who has not himself read the document is not secondary evidence of the contents of the document within the meaning of sec 36. " But this ruling for the reasons given above in the two other rulings relied upon by the learned counsel for the appellant does not apply to the facts of the present case. It was held by a learned Judge of this court in Ramchandra vs. Ramhans (10) that "there is no difference between a suit for possession containing a prayer for allowing the defendant such sums of money as he may be entitled to under the previous transactions, and suit for redemption on payment of the mortgage amount and that in reality a suit for redemption is nothing more than a suit for possession with the additional prayer for letting the defendant have his money due to him before he can be dispossessed of the property and if the defendant had acquired a mortgagee's rights by prescription, he is entitled to contest a simple suit for possession, and the plaintiff would not be granted a decree for possession unless on condition that he pays to the defendant the money due on transaction. " In a still unreported case (Bhola vs. Board of Revenue) Rajasthan Civil Writ Petition No. 224 of 1953 decided on 15th April, 1957) a Division Bench of this Court held that the inadmissibility of an unstamped document or an unregistered document or of secondary evidence of such documents as aforesaid does not prevent the admissibility of other evidence to prove the relationship of mortgagor and mortgagee.
(3.) I do not find any reason to exclude the evidence of the three witnesses produced by the plaintiff to prove the factum of mortgage and consideration for mortgage. Equally it can be said with respect to the date of the mortgage that it is not one of the terms of the mortgage-deed. From the evidence of these witnesses it is proved that the mortgage in question was made in about S. 1972-73. At the date of the suit 60 years had not elapsed from the date of the mortgage. No plea of limitation was also raised on behalf of the defendant. I have therefore no reason to interfere with the decrees of the lower courts for redemption of the property in suit on payment of Rs. 42/ -. The appeal is dismissed with costs to the contesting respondent. Mr. Jain has prayed for leave to appeal to Division Bench but I do not find any such question in this case which would induce me to give leave to appeal. Leave refused. .;