Charles Fawcett, Kt., A.C.J.
1. Both the lower Courts have held that by certain evidence the plaintiff has established that there was a mortgage of the plaint property in 1866 by the ancestors of the plaintiff's vendor to the uncle of the defendant for Rs. 375. The evidence is circumstantial, viz., recitals in deeds referring to the property as having been so mortgaged, and extracts from account books which mention the fact of the mortgage, as well as a transaction by which a half share in the mortgage was transferred to the defendant's father for Rs. 187-8 0. Both the lower Courts have held this evidence to be very satisfactory, but a complication arises because there is no document in evidence creating 1928 this mortgage, nor any secondary evidence of such a document of the kind mentioned in Section 63 of the Indian Evidence Act. The plaint does not definitely state that there was any written mortgage, but there are assertions of the plaintiff or his pleader, which are referred to in paragraph 7 of the trial Court's judgment, that there was a written mortgage. The plaintiff also called two witnesses who have stated that the defendant showed them the mortgage deed, which was written on a page in a book of the defendant. The Subordinate Judge, however, disbelieved this evidence, and held that the mortgage was established not by any evidence of that kind but by the other evidence that 1 have mentioned. The Assistant Judge in appeal held that it was only a conjecture that there was an instrument of mortgage recorded in defendant's account-book, that the defendant denied it, and that the Court did not feel satisfied as to the truth of the averment.
2. This point is of considerable importance, because if there did exist an unregistered document of the kind alleged, then, the question arises, whether any other evidence such as that relied upon by the two lower Courts is admissible for the purpose of establishing the alleged mortgage, having regard to the provisions of Section 49 of the Indian Registration Act and Section 91 of the Indian Evidence Act. This question has been very carefully discussed in the judgments of both the lower Courts, and is also raised by the appeal, which has been very fully argued before us by Mr. Amin for the appellant. The trial Judge held that if such a document existed and was unregistered, then under Section 13 of Act XVI of 1864, which was the Indian Registration Act in force at the date of the alleged mortgage, the document was one which required compulsory registration and would be inadmissible in evidence. That is a statement which has not been disputed before us, On the other hand, he held, following the view taken by a majority of the Court in Appanna v. Venkata-sami I.L.R (1923) Mad. 203 that the circumstantial evidence of the alleged mortgage was admissible to show the character of the defendant's ; possession, and that proving the mortgage in this way could not be regarded as evading the provisions of Section 49 of the Indian Registration Act. Even evidence as to the amount of the mortgage would be admissible in order to prove the extent or the quantum of interest which the defendant had in the plaint property. The Assistant Judge in appeal took the Fame view. Mr. Amin contends that the judgment of Spencer J. in Appanna Venkatasami should be preferred to the judgment of the other two judges in that case, and has taken us through a considerable number of authorities. Mr. Thakor in reply has first of all contended that it is unnecessary to go into the question whether the evidence is admissible or not, because it is not in fact established the at there ever was an unregistered document, the existence of which forms the basis of the contention that the evidence relied upon is absolutely inadmissible. Secondly, he contends that the view taken by the two lower Courts is correct.
3. Dealing with the first point, there would, in my opinion, be no difficulty in disposing of it but for the fact that the plaintiff undoubtedly did allege the existence of a written document in a book of the defendant and did adduce evidence to substantiate that assertion. Apart from that, there certainly is no evidence to show the existence of such a document, and the alleged mortgage was entered into at a time when a, document was not essential to create a mortgage; as has been pointed out by the Assistant Judge, the mortgage could have been effected by oral agreement and transfer of possession to the mortgagee. Therefore the finding of the lower appellate Court that the mortgage is not proved to have been in writing would, apart from the plaintiff's assertion to the contrary that I have mentioned, be a sufficient ground for this Court holding that neither Section 91 of the Indian Evidence Act nor Section 49 of the Indian Registration Act would apply, because the terms of the contract had not been reduced to the form of a document, and secondly, because, at the time of the alleged mortgage an oral agreement with transfer of possession sufficed to create a mortgage, so that it would not fall under the words in Section 91 about cases where the matter is required by law to be reduced to the form of a document. Section 49 of the Indian Registration Act would also not apply, because there was in fact no document tendered in evidence which ought to have been, but was not in fact, registered; and it would be perfectly open to the plaintiff to prove the existence of the mortgage aliunde, It has, no doubt, been held, that a plaintiff suing to recover possession of land by redemption of an alleged mortgage must make a specific averment of the particular mortgage he alleges. It does not suffice to say that there was a mortgage, but there must be some description of the terms of the mortgage sufficient to identify it and enable the defendant to meet the plaintiff's case. That, for instance, has been laid down by West J. in Ramchandra dpaji v. Balaji Bhaurav I.L.R (1884) Bom. 137 following Sevvaji Vijaya Raghunadha Valoji Kristnan Gopalar v. Chinna Nayana Chetti (1864) 10 M.I.A. 151. On the other hand, if the plaintiff gives sufficient details of the alleged mortgage, as has been done in the present case, this Court has held that slight prima facie proof that a mortgage has been originally made would serve to shift the entire burden of proof on the defendant in cases of this character, namely, an alleged mortgage which the plaintiff sues to redeem. This has been laid down in Balaji Narji v. Babu Devli (1868) 5 B.H.C.R. 159; but, as pointed out in Bala v. Bhiva I.L.R (1902) Bom. 271, s.c. Bom. L.R. 85(p. 278), 'this does not mean that the moment the plaintiff adduces any slight evidence, the burden is shifted. As with all evidence, the Court must appreciate it, and the burden is shifted only when the Court regards the evidence as trustworthy where it is a question of its trustworthiness,' Those conditions are satisfied in the present case, both the Courts having found that the evidence relied upon was very satisfactory. And, therefore, apart from this assertion about there being a written document, the decree allowing the plaintiff to redeem is one that could not be questioned in second appeal.
4. The main question, therefore, is whether the plaintiff's assertion on this point prevents this Court from accepting the finding of the lower appellate Court that it is not proved that there ever was an unregistered instrument of mortgage such as forms the basis of the contention that the evidence relied upon is inadmissible. Now, of course, the general rule is that it is necessary that 'the determinations in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made 'as laid down by the Privy Council in Rshenchunder Singh v. Shamachu Bhutto (1866) 11 M.I.A. 7, at. P. 20. But there are exceptions to that general rule, of which the underlying principle is mainly for the protection of a defendant, so that he should not be taken by surprise. That is well illustrated by the remarks of their Lordships in Malraju Lakehmi Venkayyamma How Bahadur v. VenJcatadri Appa Bow Bahadur (1920) 23 Bom. L.R. 713. There they say (p. 716):-
The argument now advanced is contradictory of the case thug made, and involves a line of attack that the defendants had no opportunity to meet while the litigation was in the lower Courts, where appropriate evidence could have been adduced.
Similarly, in Pushavati Alalch Narayan v. Secretary of State for India : (1926)28BOMLR865 their Lordships remark (p. 870): 'A litigant who has all along maintained a position in support of one, and in this case the more important, branch of his suit cannot be permitted, when he fails upon this branch, to withdraw from the position and assert the contrary, more especially when he thereby places his opponent at a great disadvantage.' In such cases of course variance from the original pleadings should not be allowed. But I do not think that the present if?, a case of that kind. The plaint itself does not allege a written mortgage, and the issues about the point of registration were raised only at a late stage of the trial, after the plaintiff had adduced most of his evidence. The main attack of the plaintiff is that there was a mortgage of a specified date and of a specified amount. The amount that he asserted was, no doubt, changed by an amendment of the plaint in view of evidence produced by a third party which suggested a different amount. But all along the defendant knew exactly the case about a mortgage that he had to meet, and the plaintiff's assertion that there was a written instrument did not of itself put the defendant to any disadvantage in opposing the plaintiff's attack. In fact it put him in a stronger position, because if such a document existed it would presumably be in the defendant's possession, and he could have produced it and shown clearly that it was an unregistered instrument. That would, at any rate, be destructive of the plaintiff's case that there was a valid mortgage on the land. It was, however, for him to say, supposing that he had possession of such a document, whether he should produce it or whether he should depend upon a hope of plaintiff's failure to prove his case. But in either alternative it does not seem to us that he is put at a disadvantage by the plaintiff in the trial Court alleging a written mortgage, and then his counsel in appeal being allowed to argue that in fact there was no such written instrument. The defendant's counsel, similarly, now finds it convenient to allege that there was such a written instrument, although at the trial the defendant denied it Therefore, both the parties are very much on the same footing. I am of opinion that this is a case where we can properly accept the finding of the lower Courts that it is not proved that there was an unregistered instrument of mortgage evidencing this particular transaction, in spite of the assertion of the plaintiff to the contrary at the trial.
5. In this view of the case, the second question does not really arise. But it has been very fully argued, and though it need not be definitely decided, I may briefly give the conclusion I have come to. I prefer the view taken by Spencer J. in Appanna v. Venkatasami (1923) I.L.R. 47 Mad. 203 to that of the majority of the Court. I think that the former view accords with decisions of this Court, such as Bai Gulabbai v. Shri Datgarji : (1907)9BOMLR393 where Chaodavarkar J. said that while a document of which registration is compulsory under the Indian Registration Act may be used as evidence for any collateral purpose, that meant any purpose other than that of creating or extinguishing a right to immoveable property. I may also refer to the view taken in Chhotalal Adit-ram v. Bai Mahakore (1917) I.L.R. 41 Bom. 466 s.c. Bom. L.R. 322 that the fact of partition may be proved by oral evidence, although the deed embodying the terms of partition cannot be proved for want of registration, That implies that the terms, for instance, of an alleged mortgage could not be properly proved by evidence of a kind not falling under Sections 63 and 91 of the Indian Evidence Act, merely on the ground that the Court was ascertaining the quantum of interest that remained with a person in possession of the land. It seems to mo that this is getting round the provisions of Section 49 of the Indian Registration Act in an illegitimate manner. But for the reasons I have already given, this question does not really arise. I would dismiss the appeal with costs.
6. I concur in the judgment just delivered: by my Lord the Chief Justice.