George Lowndes, J.
1. The question for determination in this appeal is whether the appellants are entitled to redeem a aeries of usufructuary mortgages upon cretain property, which is described as a separated one anna patti in a moiety of Mouza Rajapur in the Shahabad District, The other pattia are referred to incidentally in the case, but they are no part of the subject-matter of the appeal. The mortgages in question were executed on different dates between July 13, 1883, and October 23, 1914, by various members of a joint family now represented by the 6th and 7th appellants, Ram Prasad and Radha Prasad, in favour of the managing members of the respondents' family. A question was raised at the trial of the suit as to one Sita, another member of the mortgagors' family, who was said to have disappeared and was not joined as a party, but this has no bearing on the matter at issue in the present appeal. The mortgages all provided for redemption on the full moon day of Jeth in any year on repayment of the principal moneys without interest. The respondents were in possession at the date of suit. The first five appellants claimed as transferees of the equity of redemption from the 6th and 7th appellants under two permanent leases dated respectively June 19, 1921, and November 26,1921, which were put in evidence and proved.
2. In the suit as originally framed the mortgagors were joined as co-defendants, with the first three respondents as representing the mortgagees, on the allegation that they (the mortgagors) had refuued to join in suing, but they were subsequently made co-plaintiffs with the other appellants on their own application. The remaining respondents are minor members of the family of the mortgagees and were subsequently added as defendants.
3. The suit was decreed by the first Court, but this decree was reversed on appeal and the suit was dismissed. The respondents have not appeared before the Board, and the appeal has been heard ex parte, but the facts have been placed before their Lordships very fully by counsel for the appellants, and the judgments of both Courts have been discussed at length.
4. The original plaintiffs (appellants 1-5) alleged that on June 19, 1921, they tendered the full amount due on all the mortgages to the first three respondents, but that their tender was refused. They accordingly on the next day, which was apparently the full moon day of Jeth in that year, deposited the money amounting to Rs. 12,643 in the Araah Court, as they were entitled to do under the provisions of Section 83 of the Transfer of Property Act, (IV of 1882), by a chalan, which is on the record of the suit. The section provides that the Court shall thereupon cause notice of the deposit to be served on the mortgagees, who can then come in and receive the money. Section 84 provides that interest on the principal moneys shall cease from the date of the deposit, and the plaintiffs accordingly claimed mesne profits from June 19,1921. The ascertainment of the these profits was left over by the decree of trial Court for subsequent inquiry, and no question as to the amount arises in this appeal which is solely concerned with the right to redeem.
5. The suit was instituted on March 3,1922, in the Court of the Subordinate Judge of Arrah, The plaint set out the mortgages, the plaintiffs' title under the leases above referred to, the tender and deposit, and alleged that notice of the deposit had been duly served on the mortgagee defendants. Summonses were served, and March 29 was fixed for the filing of the defendants' written statement and the settlement of issues. The mortgagee defendants then appeared and applied for time and were given till April 26 to file their defence. On that day they again applied for time, but were allowed till the next day only, when a written statement, dated April 26, was put in. By it these defendants, among other pleas, denied the validity of the plaintiffs' leases and consequently their right to redeem. They denied that notice of the deposit had been served on them, denied the adequacy of the deposit, and by paragraph 11 claimed an additional sum of Rs, 1300, which, they said they had expended in resisting the claims of tenants during certain survey proceedings, and with respect to which they said, the mortgagors had 'contracted that they would execute a rehan (mortgage) bond for the same...or would pay the same along with the rehan money.'
6. On May 15, 1922, the mortgagor defendants applied to be made co-plaintiffs, an application which it was obvious must succeed and would make redemption inevitable, and this it is suggested is the key to the somewhat remarkable course of events that almost immediately followed.
7. The case came on next before the Subordinate Judge on June 8, when issues were settled strictly on the basis of the written statement already filed. On June 13, account books of the mortgagees were produced, presumably with a view to proving the expenditure alleged. On June 26, the mortgagee defendants applied to file four documents which are referred to as Ex. A, Al, A2 and A3. Of these, Ex, A is of the greatest importance in the case. It purports to be a contract, signed by the sixth appellant Earn Prasad on behalf of his uncle and brothers, representing the family of the mortgagors, and dated November, 14,1917, by which in consideration of the mortgagees fighting out the survey proceedings with the tenants, the mortgagors, in effect, agreed to transfer the whole of their interest in the mortgaged property to the respondents. There is some difficulty in the construction of this document, but its main purport is sufficiently set out as above. It is said to have been executed in the presence of the appellants 1-5 and with their full knowledge, and to be an effectual answer to their suit. The main question in this appeal is whether it is genuine.
8. The other documents, Al, A2, A3, were similar agreements in favour of the respondents, purporting to have been executed by the owners of three of the other pattis in Rajapur, which were also under mortgage to the respondents. Later, a fifth document, A4, came to light emanating from the owner of the remaining patti, and of similar purport. [After discussing in detail the evidence in the case the judgment proceeded : ]
9. The result of this detailed examination of the evidence, so far from dispelling the suspicion which the episode of the written statement aroused, has almost necessarily confirmed it, and their Lordships are unable to hold that Ex. A is proved. This is in reality the only defence to the suit, and its failure leaves the appellants entitled to the relief they claim.
10. The respondents abandoned the claim for recoupment of the costs incurred in their litigation with the tenants, and having failed upon the substituted defence, they cannot fall back upon this claim, nor have they offered any evidence in support of it.
11. Their Lordships now turn to the judgment of the High Court. It was delivered by Das J., his colleague, Allanson J., merely concurring.
12. The argument adopted by the learned Judge is that, having regard to the litigation undertaken by the respondent with the tenants of the mortgagors, there must have been some arrangement as to the costs to be incurred : that the agreement set up by the respondents (i e., Ex, A), and the story told by them, is 'inherently probable ': that there is no reason to disbelieve the witnesses who depose to it: and that there is nothing suspicious about what their Lordships have called the episode of the written statement,
13. Upon their Lordships' own examination of the facts, they are unable to accept this line of reasoning. The respondents were mortgagees in possession, and would be entitled under Section 72 of the Transfer of Property Act, 1882, to add to the principal of their mortgages any money properly expended by them in supporting the title of their' mortgagors. It can hardly be said, therefore, that any express agreement was necessary. As to the 'inherent probability' of the respondents' story and the credibility of their witnesses, their Lordships have little to add to the observations they have already made. The learned Judge has disregarded all the considerations which have weighed with their Lordships. In dealing with the judgment of the Subordinate Judge, he evidently attaches no importance to the fact that the witnesses were examined in his presence: he regards Eatul Thakur, Ramdahin Kai, and Sheo Narain, as witnesses of credibility, and their evidence as ample corroboration of Gungadhari: Sheo Prasad Pande is ' a witness of undoubted position and respectability ': the unfortunate episode of the written statement was due to the Subordinate Judge's unreasonable refusal of the respondents' request for further time: the grant of only a day to file their defence was unparalleled in his experience. It apparently escaped the notice of the learned Judge that the respondents had already, on their own request, been given a month's time for this purpose after the date fixed for the first hearing (see as to this Order VIII, Rule 1, of the First Schedule to the Code of Civil Procedure). He believes the story told by Gungadhari as to the circumstances under which the written statement was filed: he makes no reference at all to the alleged production of the A series of documents on March 19, or to the Subordinate Judge's deductions from the penmanship of the original: he sees no reason why Harnandan Singh or even Jug Narain should have been called.
14. Their Lordships have no desire to pursue further their criticisms of this judgment. They will only say that it is, in their opinion, unconvincing and unsatisfactory. They must, however, refer to one incident. The question of the thumb-impression of Musammat Bataso was apparently regarded as of importance, and the respondents seem to have applied before the hearing in the Appellate Court began to be allowed to give evidence of its genuineness. The learned Judges acceded to this application and adjourned the hearing to give the respondents an opportunity of producing a genuine thumb-impression of the lady, and tendering expert evidence of comparison. When, after considerable delay, another thumb impression was produced, it was found that Ex. A4 had been tampered with while in the custody of the Court, and the thumb-impression which had been on it was torn off. It is evident that Das J, suspected that this had been done by the appellants, though no evidence of any kind with regard to the incident was before him.
15. In their Lordships' opinion, this additional evidence ought not to have been admitted. If the respondents desired to give evidence as to the thumb impression, they had ample opportunity to do so in the trial Court. ,The provisions of Section 107 of the Civil Procedure Code, as elucidated by Order XLI, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal.
16. Turning to the provisions of Rule 27, Clause (1)(a), has no application in the present case. Under (1)(b) it is only where the appellate Court 'requires' it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ' when on examining the evidence as it stands, some inherent lacuua or defect becomes apparent'. This is laid down in the most positive terms by Lord Robertson in Kessowji ISSUR v. Great Indian Peninsula Railway (1907) L.R. 31 IndAp 115 9 Bom. L.R. 671 He was dealing with the worda of Section 568 of the Code of 1882, but they are substantially the same as those of Order XLI, Rule 27, of the present Code. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that, so far as the record discloses, none of these conditions. was complied with in the present case.
17. Reference has been made in this connection to certain observations contained in the judgment delivered by Mr. Ameer All in Indrajit Pratap Sahi v. Amar Singh (1923) L.R. 50 IndAp 153 25 Bom. L.R. 1259 The question in that case was as to the power of the Board to admit additional documents which the High Court had rejected, and this power is not in any way restricted or governed by the provisions of the Code. If any incidental remarks appearing in this judgment have occasioned any doubt as to the meaning of the rules above referred to, or the conditions under which the discretion of the appellate Court is to be exercised, their Lordships desire to emphasise their view that the correct practice in the matter is as they have now defined it in accordance with the plain words of the Code.
18. They will only add that the power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case. It could hardly, their Lordships think, be suggested in the present case, that the mere proof of the genuineness of the thumb-impression on Ex. A4 could be in any way decisive of the genuineness of Ex. A.
19. For the reasons given, their Lordships have come to the clear conclusion that the decision of the trial Court was right, and they will humbly advise His Majesty that this appeal should be allowed, and that the decree of the High Court should be set aside, and that of the Subordinate Judge restored. The respondents must bear the costs of the appeal in the High Court and before this Board.