1. This appeal arises from a suit filed by the respondent (original plaintiff) for redemption of the property in suit. The plaintiffs case was that one Amrut Malhari Deshmukh mortgaged the property in suit to Sankru Khandu Hande in 1891 to secure a loan of Rs. 25 fixing twenty years as the period for the redemption of the mortgage. The plaintiff is the transferee of the right, title and interest of the heirs of the deceased mortgagor. The trial Court dismissed the plaintiff's suit, but on appeal the suit was decreed by the lower appellate Court.
2. Mr. A.G. Desai on behalf of the appellants has raised three points in support of this appeal. The first is that the plaintiff has failed to prove the mortgage on which his suit was based. The position with regard to this mortgage of 1891 is that the original document is not forthcoming, and the plaintiff proved this document by a certified copy. Now a mortgage-deed is, under Section 74 of the Indian Evidence Act, 1872, a public document because public records of mortgages are kept in British India; and under a 65 secondary evidence can be given when the original is a public document; and under Section 77 certified copies may be produced in proof of the contents of public documents. Therefore, there is no doubt that by producing this certified copy the plaintiff proved the contents of the mortgage-deed of 1891. But the question raised by Mr. Desai is that there is no evidence of the execution of this mortgage-deed. It will be remembered that this is a suit by a mortgagor to redeem the mortgaged property and the execution would be by the mortgagor. The question is whether by producing a certified copy of this registered document can it be said that the plaintiff has proved that the mortgage-deed was executed by the mortgagor? This is a certified copy of the original mortgage-deed which was entered in the book kept in the office of the Sub-Registrar. Therefore if the book from the Sub-Registrar's Office had been produced, the copy in that book would certainly be more than thirty years old. The Indian Evidence Act and also Section 57, Sub-clause (5), of the Indian Registration Act, make it permissible for a party, instead of producing the original public document, to prove that public document by a certified copy; and, therefore, I will assume that the copy which the plaintiff proved was a copy more than thirty years old. If the copy was more than thirty years old, can it be said that by that reason alone the execution of the document is proved? Now if a document is more than thirty years old and is produced from any custody which the Court in the particular case considers proper, Section 90 of the Indian Evidence Act permits the Court to presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Now the copy itself or the certified copy or the copy in the Sub-Registrar's Office does not purport to be in the handwriting of the executant nor does the copy purport to be signed by the executant. What the copy contains is a copy of the signature of the executant on the original document. Their Lordships of the Privy Council in Basant Singh v. Brijraj Saran Singh (1935) 37 Bom. L.R. 80. emphatically dissented from a series of cases decided in India that secondary evidence of a document which was more than thirty years old could prove the execution of the document which was lost or could not be produced in Court; and at p. 811 their Lordships say that the clear language of Section 90 requires the production to the Court of the particular document, in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under Section 65 as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine. Therefore the statutory presumption under Section 90 can be raised only with regard to the actual document produced to the Court; it cannot be raised with regard to the original document. What Mr. Coyajee wants me to do is to raise the presumption under Section 90 that the original mortgage-deed which he is not in a position to produce was executed by the mortgagor. His contention is clearly untenable in view of the clear decision of the Privy Council to which I have just referred. Mr. Coyajee contends that the Privy Council was not considering the case of a registered document. I fail to see how in principle a registered document makes any difference. All that the Indian Evidence Act does is that it permits secondary evidence to be given of a registered document because it is a public document within the meaning of Section 74, and under Section 77 it provides that certified copies may be produced in proof of the contents of the public documents. All that a certified copy does is that it authenticates the genuineness of the copy. The Court presumes that the original document had the same contents as the copy. It certainly does not prove the actual execution of the original document. I, therefore, hold that the actual execution of the mortgage-deed was not proved by the secondary-evidence that was tendered by the plaintiff in the Courts below. The rest of the judgment is not material to this report.