1. The plaintiff Sheikh Karimullah is purchaser of the alleged rights and interests of defendant No. 4 Mital. His allegation was that Mital and others had mortgaged the property to defendant No. 1 Gudar and he desired to redeem that mortgage of 9th May, 1917. Another important party defendant in the suit was defendant No. 6 Mt. Deokali.
2. In para. 10 of the plaint it is stated that defendant No. 6 Mt. Deokali was made a party though she had no concern in the property because of the allegation of the mortgagee, Gudar, that he had made over possession to her. Defendant No. 7 is a transferee from Mi. Deokali. It appears that contest lies between Mital and Mt. Deokali as to the ownership of the property. In the plaint however no relief is claimed specifically against Mt. Deokali as apart from the mortgage. In para. 12 possession is desired on redemption of mortgage.
3. A copy of the registered mortgage deed was produced and the mortgagee Gudar did not produce the original. Gudar denied the existence of any mortgage. Both the Subordinate Courts have held that the mortgage was not proved because no attesting witness was called for the purpose of proving its execution as laid down in Section 68 of the Evidence Act. It is admitted that both the attesting witnesses are alive and no attempt was made to prove that they were not subject to the process of the Court or incapable of giving evidence.
4. The argument of the learned Counsel for the plaintiff-appellant was two-fold (1) that the suit was not based on the mortgage and that therefore it was not necessary to prove the document strictly and (2) that when the mortgagee Gudar failed to produce the original document the evidence of the mortgagor Mital and of the scribe of the document was sufficient to prove the document by secondary evidence.
5. As I have already pointed out the suit is based entirely on the mortgage. The nature of the conflict between Mital and Mt. Deokali is not even indicated in the plaint. It cannot therefore be said that the suit is one for possession by the transferee of an owner against all possible persons who are keeping him out of possession. I am of opinion that the mortgage is required to be strictly proved having regard to the nature of tbe plaint.
6. The next argument was that the admission by the mortgagor of having executed the document was sufficient evidence of execution and that the existence, condition and contents of the document were proved by the production of a certified copy of the document. A certified copy is sufficient secondary evidence under Section 63 of the existence, condition and contents of the deed, but not of its execution. The ingenious argument was advanced that Section 67 and those which follow up to Section 73 deal with primary evidence and not with secondary evidence.
7. I do not think that such an argument can hold when in Section 65 there is no mention of secondary evidence being given of the execution of a document. Section 67 follows the mention of primary and secondary evidence in Sections 61 - 66 and would presumably govern both kinds of evidence. The submission was made that if the mortgagee suppressed the original document and won over the attesting witnesses it would be impossible to prove a deed of mortgage if the provisions of Section 68 were insisted upon. This difficulty however can be overcome by the application of the provisions of Section 71. If the plaintiff had summoned the two attesting witnesses and they denied execution either through collusion or absence of recollection it would have been open to the plaintiff to prove the execution by any other evidence.
8. In my opinion the two Subordinate Courts were correct in insisting upon the due observation of the provisions of Section 68 and refusing to use the mortgage deed as evidence on non-compliance by he plaintiffs of the terms thereof. I do not think that present plaint can be turned into a conflict between the plaintiff, and Mt. Deokali, so it will not be a proper course to remand the suit to the trial Court to decide the question of possession by right of title.
9. I dismiss this appeal with costs which shall include here fees on the higher scale.