1. This is a very unsatisfactory case. The plaintiff sued on a mortgage. There were seven defendants, of whom four were minors, all members of a joint Hindu family. The eldest defendant professes to know his father's handwriting. The father was the mortgagor. This defendant, being examined and shown the mortgage-deed, said that the signature was his father's. As far as he was concerned, this admission, in our opinion, would, under Section 58 of the Indian Evidence Act, relieve the plaintiff of any further responsibility of proving the document. But the decision is not so clear as regards the remaining six defendants. The plaintiff in fact did intend to produce the attesting witnesses, and there was, as far as we can see, no culpable delay on his part, but on the day fixed for the hearing he said that he was ill and his witnesses were not present. Both the Courts declined to grant him any further time, and, therefore, they held that he had failed to prove the mortgage-deed. That finding, in our opinion, must be wrong against defendant No. 1 at any rate. It is to be remembered that those defendants plead that they know nothing of the mortgage transaction. They do not deny that it may have taken place, nor do they anywhere allege payment. Nevertheless both the Courts have inferred from the mere fact that the plaintiff delayed bringing his suit until almost the last day allowed him by the law of limitation that he must have been receiving interest all that time at the rate stipulated for in the deed, and on that calculation they have reached the conclusion that the debt has been fully satisfied. Both the Courts refer to two decisions of the Allahabad High Court, Bihari v. Ram Chandra I.L.R. (1911) All. 483 and Balkaran Upadhya v. Gaya Bin Kalwar I.L.R. (1914) All. 370. But without commenting upon those cases it is clear that an inference of the kind we have just mentioned is not one which can be supported by any authority. It is in effect an inference not drawn from any evidence. It could not have been drawn from any evidence because payment was not alleged and no enquiry was made upon the point. Drawing inferences of this kind from matters not in evidence before the Court is well-settled to be an error of law. We feel no difficulty, therefore, in neglecting these concurrent findings of the two Courts below which otherwise would no doubt conclude the case. The result is that at present in our opinion there has been no trial at all.
2. We feel, therefore, that we must reverse the decrees of the Courts below and remand the case for a proper trial upon the merits. Costs will abide the final result.
3. I concur.