1. The facts found proved by the Courts below are as follows:
2. In 1840 the house in dispute was mortgaged by Kanayalal to Ramnarayan and his brother Chitramal. At a partition of the family property the mortgaged house fell to the share of Ramnarayan, whose widow, Pyarabai, sold it to the second defendant, Ladha, in 1868. Ladha re-sold it to the third defendant, Thakur, in 1871. The present suit is brought by Panalal, as Kanayalal's heir to redeem the mortgage.
3. The authority of Ramji v. Chinto has not, as the District Judge supposes, been weakened, and any gahan lahan clause, which there may have been in the original mortgage, would not prevent the redemption. But the Courts below have found that the mortgage was foreclosed by a decree of Court in 1852. Unfortunately, this decree is not forthcoming: and the only evidence that such a decree was ever passed consists of a reference to a copy of the decree in a judgment passed by the Sadar Amin in another suit, and a statement made by Chitramal, now dead, that the mortgage had been foreclosed. The District Judge has held that the reference by the Sadar Amin to the copy of the foreclosure decree is, under Section 63 of the Indian Evidence Act, sufficient evidence of the contents of the original decree. We should have been glad if we could have come to the same conclusion; bat it seems to us clear that a written statement of the contents of a copy of a document, the original of which the person making the statement has not seen, cannot be accepted as an equivalent of that which Section 63 of the Evidence Act renders admissible, namely, an oral account of the contents of a document given by some person who has himself seen it. As to Chitramal's statement (exhibit No. 46), it was put in by the plaintiff, as containing an admission of the mortgage; and there is no rule of evidence under which it can be made use of to establish the foreclosure. Under these circumstances we are obliged to come to the conclusion that there is no legal evidence in the case that the mortgage has ever been foreclosed.
4. But then it is said that Thakur is entitled to be regarded as a purchaser for value without notice. Now, no doubt, his conveyance gave him no notice that the title was originally one of mortgage; but it gave him notice that his vendor Ladha, had purchased from Pyarabai; and as Ladha could only show a title in himself extending over three years, Thakur was certainly bound to inquire into Pyarabai's title. Had he done this, he would have ascertained without difficulty that her title originated in a mortgage; and in that case a mere mistaken belief that the mortgage was irredeemable) would not entitle him to be treated as a purchaser for value without notice--Hansard v. Hardy 18 Vcs., 462. Had he taken up another line of defence, we might perhaps have given him an opportunity of showing that at the time of his purchase he did make inquiries, and was informed and believed that the mortgage had been foreclosed by a decree of Court. But the case made in his written statement is, not that the mortgage had been foreclosed, but that there never was any mortgage at all. The same observations apply to Ladha, the second defendant: so that Thakur cannot shelter himself behind Ladha's purchase, as having been made without notice.
5. We regret, therefore, to come to the conclusion that although in all probability the mortgage of 1840 has been foreclosed, yet, owing to the neglect of the defendants to furnish themselves with proper evidence of title, there is no legal ground on which redemption can be refused to Kanayalal's heir.
6. A suggestion has been made that the present plaintiff is not Kanayalal's heir. But he has obtained a certificate of heirship under Regulation VIII of 1827, and for the purposes of the present suit must be regarded as Kanayalal's legal representative.
7. We are informed that one or more of the plaintiff's witnesses state the amount of the mortgage to have been Rs. 300, and, in the absence of evidence to the contrary, we think that this may be accepted as the principal amount due. It must be assumed that the rents and profits of the house were to be taken as interest; and looking to the value of the house, as shown in the conveyance, there can be no doubt that the rents and profits were equivalent to a high rate of interest. The plaintiff must, therefore, be allowed to redeem on payment, within six months, of Rs. 300.
8. The parties should bear their own costs throughout.