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Fateh Chand Vs. Anup Singh and ors. and Jai Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1920)ILR42All575
AppellantFateh Chand
RespondentAnup Singh and ors. and Jai Dayal and ors.
Excerpt:
mortgage - suit for redemption--limitation--acknowledgment of mortgagor's title recorded in settlement papers--inferences derivable from such acknowledgment--burden of proof. - - this wajib-ul-arz was signed by ganga ram and by the successors in title of ram dayal, so that the entries in the khatauni to be found in the settlement record of 1833 and in the wajib-ul-arz of 1863 clearly prove the existence of a mortgage of the disputed property wish all the details alleged by the plaintiff in this case. all these circumstances raise a very strong presumption in favour of the existence of a subsisting mortgage. however, i am satisfied that the learned subordinate judge in this case has not looked at the matter from this point of view. in the main, however, the question is, and it has been.....pramada charan banerji, j.1. this appeal arises out of a suit for redemption of a mortgage alleged to have been made some time between 1833 and 1839 by albela and lachman in favour of ganga ram and ram dayal. it is stated that the property which is the subject matter of the suit was the subject of the mortgage, that the amount of the mortgage was rs. 561-4-0 and that the mortgage was redeemable upon payment of the mortgage money in the month of jeth of any year. the plaintiff is the purchaser of the equity of redemption from the successors in title of the original alleged mortgagors. the principal defendants,, who are the representatives of the mortgagees, deny the fact of the mortgage and deny that the claim is within limitation. undoubtedly it is for the plaintiff who comes into court.....
Judgment:

Pramada Charan Banerji, J.

1. This appeal arises out of a suit for redemption of a mortgage alleged to have been made some time between 1833 and 1839 by Albela and Lachman in favour of Ganga Ram and Ram Dayal. It is stated that the property which is the subject matter of the suit was the subject of the mortgage, that the amount of the mortgage was Rs. 561-4-0 and that the mortgage was redeemable upon payment of the mortgage money in the month of Jeth of any year. The plaintiff is the purchaser of the equity of redemption from the successors in title of the original alleged mortgagors. The principal defendants,, who are the representatives of the mortgagees, deny the fact of the mortgage and deny that the claim is within limitation. Undoubtedly it is for the plaintiff who comes into court for possession of property by redemption of a mortgage to prove two things: first, that a mortgage answering substantially to the description of the mortgage alleged in the plaint was created, and, secondly, that the mortgage was a subsisting mortgage when the suit was brought, i.e., that the plaintiff's claim was not time-barred. The fact of the mortgage as alleged by the plaintiff has been found by the court below and there is ample evidence on the record to show that a mortgage of the property now in suit was made by the two alleged mortgagors in favour of Ganga Earn and Ram Dayal for a sum of Rs. 561-4-0. In the khatauni which is to be found on the settlement record of 1833 and which is referred to by the court below as the khatauni of 1839, there is a specification of this particular mortgage. It is stated to be a mortgage made by Albela and Lachman in favour of Ganga Ram and Ram Dayitl. The property is mentioned, the amount of the mortgage is mentioned, and it is further mentioned that the mortgage is redeemable upon payment of the mortgage money in the month of Jeth of any year. A settlement took place in 1863, and in that settlement a wajib-ul-arz was prepared in which all mortgages in the village were specified. At the heading of the list of these mortgages it is stated in the wajib ul-arz that these mortgages could be redeemed upon payment of the principal amount in the month of Jeth of any year, Among these mortgages is the mortgage now in question. The property mortgaged is specified. The names of the mortgagors and the mortgagees are also mentioned and the amount of the mortgage is mentioned also. This wajib-ul-arz was signed by Ganga Ram and by the successors in title of Ram Dayal, so that the entries in the khatauni to be found in the settlement record of 1833 and in the wajib-ul-arz of 1863 clearly prove the existence of a mortgage of the disputed property wish all the details alleged by the plaintiff in this case. The only thing that is wanting in both these documents is the initial date of the mortgage. In my opinion the fact of the plaintiff having been unable to prove the date of the mortgage is not sufficient to justify our holding that the mortgage has not been proved. The date of the mortgage was not material except for the purposes of the question of limitation, to which I shall have to refer later. In the Full Bench case of Parmanand Misr v. Sahib Ali (1889) I.L.R. 11 All. 438 the learned Chief Justice at the conclusion of his judgment stated that what was necessary to be shown was ' a definable or distinguishable mortgage.' In the present case a definable or distinguishable mortgage has been fully proved, and the more inability of the plaintiff to prove the exact date of the mortgage is not a valid reason for holding that the fact of the mortgage sought to be redeemed has not been established. The learned Subordinate Judge has found that a mortgage of the property in dispute was made by the alleged mortgagors in favour of the alleged mortgagees for a sum of Rs. 561-4, and this finding, which is justified by the evidence to which I have referred, is binding on us in this appeal.

2. The next question is--' Has it been established that in 1863 when this mortgage was acknowledged by the mortgagees it was a, subsisting mortgage. It is true that in the acknowledgment itself there is no specific allegation that the mortgage was a subsisbing mortgage, but it may be remembered that in the wajib-ul-arz a specification was made of all the mortgages which existed in the village, and which must be. taken to have been deemed to be mortgages which were subsisting at the date of the preparation of the wajib-ul-arz. In that document, as I have already stated, a specification is given of a number of mortgages with the addition of a clause to the effect that the mortgages could be redeemed on payment of the amount of the mortgages in the month of Jeth of any year. Among these mortgages was the mortgage now in dispute, and this mortgage was acknowledged by the mortgagees to be a mortgage which was in existence. Of course it was for the plaintiff who came into court to prove that that acknowledgment was one which had been made before the expiry of the period of limitation, otherwise the acknowledgment could not be availed of for the purpose of saving the operation of limitation. In my opinion the question is one of the amount of proof which has been given of the existence of a subsisting mortgage in 1863. I do not think that any hard and fast rule can be laid down as to what should be the quantity of evidence to be adduced in each case. But where in respect of a mortgage, the creation of which was established, the mortgagees acknowledged that the mortgage existed, that acknowledgment is in my opinion prima facie evidence that it was a mortgage which subsisted at the time when the acknowledgment was made and was not a mortgage which had become extinct by lapse of time. As observed by Mr. Justice Pearson in his judgment in the Full Bench case of Daia Chand v. Sarfraz (1875) I.L.R. 1 All. 117: 'It is not reasonable to suppose that anyone would allow himself to be described as the mortgagee of a property of which the mortgage had ceased to be redeemable at law and the names of the owners thereof had been lost to knowledge by lapse of time.' In my opinion, where a mortgagee has acknowledged a mortgage, that acknowledgment is prima facie evidence that there is a subsisting mortgage which he acknowledges. If the mortgage had become extinguished by reason of lapse of time there was no occasion for him to acknowledge such a mortgage; the mortgage had, to all intents and purposes, ceased to exist and there was nothing which had to be acknowledged. This case is very similar to that of Kamla Devi v. Gur Dayal (1919) 17 A.L.R. 830. Before the enactment of Act XIV of 1859 there was no period of limitation for a suit for redemption of a mortgage. By that enactment a limitation of sixty years was prescribed for a suit for redemption and a grace of two years was given to all mortgagors who wished to redeem their mortgages after the passing of the Act. This period of grace expired in 1862, so that) if a suit had been brought to redeem a mortgage, whether the mortgage had been made in 1833 or at a much earlier period, the suit would not have been time-barred. It was after the passing of the Act that the settlement of 1863 took place and it was at this time that in the present case the mortgagees admitted the existence of the mortgage. When they made that acknowledgment they must have deemed the mortgage to have been in existence as a subsisting mortgage which could be redeemed by the mortgagor, Of course this acknowledgment cannot be more than prima facie evidence of the existence of a subsisting mortgage and is not conclusive. It may be rebutted by proving that the mortgage was made at a date from which, if limitation were computed, sixty years had elapsed before the acknowledgment was made. There is no such evidence in the present case; on the contrary, in every subsequent settlement this property has been recorded as the property of the mortgagor and as being in the possession of the mortgagees as such. In the year 1321 Fasli a partition took place at the instance of Anup Singh, defendant, and a separate mahal was formed. This land was not included in Anup Singh's mahal and Anup Singh did not claim that it should be made a part of his mahal. It was included in the mahal of the non-applicants for partition, among whom were the successors in title of the original mortgagors. All these circumstances raise a very strong presumption in favour of the existence of a subsisting mortgage. Reference was made to the ruling of the Privy Council in Fatimat-ul-nissa Begum v. Sundar Das (1900) I.L.R. 27 Calc. 1004. In that case the date of the mortgage was known. It was also known that the acknowledgment which had been made was an acknowledgment after the expiry of sixty years from the date of the mortgage, so that that acknowledgment could not be relied upon as saving the operation of limitation and was not in fact so relied upon before their Lordships. What was contended before their Lordships was that by reason of the mortgagees having granted a lease to the mortgagors and described themselves as mortgagees, they were estopped from denying the existence of the mortgage as a subsisting mortgage. This contention was repelled by their Lordships and they proceeded to hold that the mere fact of the mortgagees regarding themselves as mortgagees, although the period of limitation for redemption of the mortgage had expired, could not affect their rights which had matured into the rights of absolute owners. Such is not the case here. In this case, it is true, we have no evidence as to the exact date on which the mortgage was made. It is quite possible that in 1863 sixty years had not expired from the date of the original mortgage, and it seems to me to be improbable that had the mortgage been made some time prior to 1803, it would have been treated in 1863 as an existing mortgage. We have, however, no evidence on the point. In that year, as I have said above, the mortgagees acknowledged the existence of a mortgage, and in my opinion that acknowledgment is prima facie evidence of the existence of a subsisting mortgage. This is the view which the court below took, and I think that court was fully justified in holding that view. I would dismiss the appeal with costs.

Piggott, J.

3. I have carefully considered the judgment which has just been delivered by Mr. Justice Banerji. I am in agreement with so much of it that it is only after considerable hesitation that I have arrived at the conclusion that I am bound to dissent from the order which he proposes to pass on this appeal. I may say at once that I agree with him that the plaintiff in this case has proved his mortgage sufficiently to satisfy all reasonable requirements on that point. There is in any case a finding of fact that the mortgage is. proved and that finding undoubtedly rests upon evidence. The entry made in what has sometimes been spoken of as the settlement record of 18S9 (it must be remembered that in many of these old settlement papers an entry to the effect that the paper in question appertains to a ' settlement record of 1833 ' means nothing more than that it was made in the course of a settlement prepared under the Regulations of 1833), was made at a time when there was no period of limitation prescribed by law for the redemption of a mortgage. It is, therefore, evidence that certain specified land was held by certain named persons as the mortgagees of certain other named persons, and that the latter were entitled to redeem the mortgage at any time on payment of a specified sum. Under these circumstances I do not think it was incumbent on the plaintiff, except for purposes of limitation, to prove that this mortgage had been contracted in a particular year.

4. We now come to the crucial question of the acknowledgment to be found in the settlement record of 1863. There was undoubtedly an acknowledgment sufficient in law to save limitation, provided it was made at a time when the liability acknowledged was still subsisting. The question is, then, whether it has or has not been proved that the mortgage in suit, whatever its precise date, was at any rate contracted within sixty years of this acknowledgment of the year 1863. Admittedly there is no direct evidence on the point. The question is one of inferring one fact as presumably true because of certain other established facts. If the lower appellate court had looked at the matter, plainly and unmistakably, from this point of view and had recorded a clear finding that from such and such established facts it drew the inference that the' mortgage must have been contracted within sixty years of its acknowledgment in the settlement record of 1863, I should have felt more difficulty about the case than I actually do. A clear finding of fact by a court of first appeal can only be interfered with in second appeal on the ground that it proceeds upon some erroneous' view of law, or that is rests upon no legal evidence. I should have felt considerable difficulty about holding that a finding of fact such, as that above suggested would in this case have rested upon no legal evidence; obviously, in face of the judgment which has just been delivered, it would have been exceedingly difficult to say this. However, I am satisfied that the learned Subordinate Judge in this case has not looked at the matter from this point of view. He has assumed that, for practical purposes, it was sufficient for the plaintiff to prove that there was in existence in the year 1839 a mortgage which was at that date redeemable, and that an acknowledgment of liability has been proved which acknowledgment was made within sixty years of the year 1839. That this is not a correct statement of the law is obvious enough from the mere terms of the Indian Limitation Act, No. XIV of 1859. The Legislature in that year for the first time, imposed a sixty years' period of limitation for redemption suits. It did not proceed on the assumption that those sixty years would begin to run with the pissing of the Statute, as it would have done if it had considered it sufficient to note that every mortgage then in existence was redeemable on the date on which the Statute came into force. All it did was to allow mortgagors, whose right of. redemption would otherwise have been abruptly cut oft the moment the Statute came into force, a short period of grace within which to make the necessary arrangements and to bring a suit for redemption if they were able to do so. The mere fact, therefore, that there was a redeemable mortgage in the year 1839 does not suffice to make out the plaintiff's case, unless the court) is prepared to infer that the said mortgage must have been contracted some time within sixty years of its acknowledgment in the settlement record of 1863. It is here that in my opinion a question of principle is involved and I have felt driven to dissent from the judgment which has just been delivered because of the importance I attach to this question of principle. The inference that the mortgage must have been contracted within sixty years of the preparation of the settlement record of 1863 is sought to be based mainly on the terms of the acknowledgment itself. Something has been said about the subsequent conduct of the mortgagees, and to this I must refer briefly later on. In the main, however, the question is, and it has been very clearly stated by Mr. Justice Banerji in his judgment, whether or not the settlement record of the year 1863, read in connection with the fact that it was signed as a correct entry by the then mortgagees, justifies an inference that the mortgage .was not at the date of that acknowledgment over sixty years old. We are really dealing with a question of circumstantial evidence, inferring one fact from another, applying the principles laid down in Section 114 of the Indian Evidence Act. My main reason for being unable to concur with the judgment delivered by the senior member of this Bench is that I dissent quite definitely from the dictum which he has quoted from the judgment of one of the members of the Full Bench which decided the case of Daia Chand v. Sarfraz (1875) I.L.R. 1 All. 117. I am unable to accept as of general validity the proposition that it is not reasonable to suppose that a man would describle himself as mortgagee of a property under a mortgage which had ceased to be redeemable at law. I do not think that proposition can be founded upon any wide experience of the ordinary principles of human nature and conduct as prevailing amongst the smaller land-holders in this country. A glaring instance to the contrary is on record for all time in the Privy Council case to which reference has been made, that of Fatimat-ul-nissa Begum v. Sundar Das (1900) I.L.R. 27 Calc. 1004. We there have a mortgagee continuing for years and years to describe himself as mortgagee of certain property, and even describing himself as such in a covenant of lease which he enters into with his own mortgagor, many years after the right of redemption had become statute-barred. In one sense it is possibly correct to say that a man does not ordinarily acknowledge a liability which he knows to have become statute-barred; but the possibility of such an acknowledgment was clearly contemplated by the Legislature when drawing up the relevant clause of the Indian Limitation Act. It required to be laid down that in order to save limitation an acknowledgment must be made before the period of limitation in respect of the liability so acknowledged had expired; and in so doing the Legislature clearly contemplated the possibility of acknowledgments being made of statute-barred debts. If the courts are in a general way to act upon the sort of principle involved in the words which I have quoted from the judgment of Mr. Justice Pearson, the result will be that an acknowledgment made within sixty years of the limitation period prescribed for the institution of any suit for redemption will have to be treated as ordinarily sufficient to save limitation, unless and until the party bound by that acknowledgment is able to prove affirmatively that it was made beyond limitation. I do not think this is a sound principle, or was intended by the Legislature.

5. I now come to consider more definitely the particular acknowledgment in question in this case, which is to be found in the settlement record. An entry in a settlement record is presumably in itself a correct statement of the facts therein recited. We have that in the present case, and we also have the acknowledgment of the correctness of the entry by the signatures of the then mortgagees. So far the case looks well for the plaintiff; but I do not think it is a strong case when one comes to consider the terms of the entry in view of the circumstances under which it was made. In the year 1863 the Limitation Act of 1859 was a comparatively recent statute. The special period of grace allowed thereby had only lately expired. The settlement officer in these circumstances set himself to inquire what lands in the village were in the possession of mortgagees and on what terms, If he had intended to prepare only a list of mortgages redeemable at the time when the list was drawn up, I think there would have been some inquiry into the dates of the various mortgages and the admissions of the parties on the point would have been recorded. I do not feel myself able to infer from those documents that the question whether-or not any mortgage entered in this list was at that moment sixty years old was present at all to the mind of the settlement officer, What he drew up was a list of lands which had passed into possession of the persona then holding them by way of a contract of mortgage, and he recorded the essential terms of that contract, i.e., the names of the mortgagors and the mortgagees, the amount of the mortgage, the terms of the agreement between the contracting parties as to the method of redemption. I do not believe that he intended to record an admission that each and every one of these mortgages was necessarily redeemable, in view of the recently passed Statute on the subject, on the date 'on which he drew up that list. His silence on the point, the absence of any inquiry as to the date of any of the morgages, seem to me almost conclusive. I am of opinion, therefore, that the admission of the mortgagees in this particular instance is no more than an admission that their possession in the year 1863 had its origin in a contract of mortgage, to which certain persons had been parties and of which the covenanted mortgage debt was a certain specified sum.

6. For these reasons I do not feel able to draw from the entry in question the inference which has commended itself to Mr. Justice Banerji.

7. As regards the subsequent conduct of the mortgagee, it leaves me cold. Entries of this sort, are ordinarily continued from settlement to settlement. The settlement officer sets himself to inquire who are the present holders of the mortgagee rights and on whom the proprietary rights, i.e., the equity of redemption, has since devolved. He would in all probability consider it entirely outside his function to enter upon an inquiry as to whether or not any one ' of these mortgages had become statute-barred. The case already referred to from 27 Calcutta, page 1004, may be mentioned once more as an instance in which such entries were continued for many years after the right of redemption had in fact become barred. So far as my experience goes I know literally of no case in which a mortgagee has raised, either before the settlement officer at settlement, or before the revenue authorities by way of application for correction of records, the point that his mortgagee possession has now ripened into full proprietary possession for want of redemption within the prescribed period of sixty years. So far as the ordinary Revenue Courts are concerned, I am confident that they would refuse to entertain such an application or to make any kind of inquiry into it. They would refer the person making it to the Civil Court, and I cannot say that in my experience I have even come across a case in which a mortgagee, under the circumstances suggested, has taken the initiative and filed a suit for a declaration to the effect that) he has acquired full proprietary rights. In the partition to which reference has been made, the co-sharer, who was also the principal mortgagee, or perhaps the sole mortgagee, of the lands in question in this case was seeking to have his rateable share in the proprietary right of the mahal separated from the rest and made into a separate mahal. The mortgage which we are considering was not a mortgage of a fractional share in the mahal. It was a mortgage of specified plots. I find it very difficult to conceive of an application for partition so drawn up as to ask the partition court to form into a separate mahal lands representing the applicant's fractional share in the proprietary rights of the mahal as a whole and at the same time to take out of the mahal of the non-applicants for partition certain specified plots and. add them to the mahal of the applicant, on the ground (1) that they were in possession of the applicant-, and (2) that he had become by virtue of prescription the owner of those specified plots over and above his rateable .share in the proprietary rights of the mahal as a whole, I am not prepared to say that such an application would be impossible under the Local Revenue Act, although I conceive it would raise serious difficulties regarding the apportionment of revenue between the two mahals, but it is sufficient for my present purpose to say that I think it very unlikely that the applicant for partition would have thought of coming before the partition court with such a claim and that his failure to do so does not seem to me a piece of conduct on his part which in any way - suggests an admission that the mortgage in question was still redeemable.

8. For these reasons I must record my opinion that this appeal ought to be allowed, the order of remand set aside and the decree of the first court dismissing the plaintiff's suit restored with costs throughout.

Walsh, J.

9. In my judgment this is a plain case. The question of law arises in an appeal from a remand order. The plaintiffs sued for the redemption of a mortgage the date of which neither they nor any body else knows. They alleged that it was made between the years 1833 and 1839. It was, therefore, prima facie statute-barred. In order to overcome this difficulty they further alleged that the mortgagees .had given an acknowledgment, both in 1839 and in 1863, within Section 19 of the Act of Limitation, which took the case out of the mischief of the Statute. The case on the acknowledgment of 1839 broke down. An acknowledgment was given by the mortgagees in 1853. The question is whether there is any evidence that that acknowledgment was given within sixty years of the date of the mortgage or whether it was otherwise sufficient in law. The Munsif held that the plaintiffs had failed to prove the mortgage relied upon and had failed to prove a valid acknowledgment. The lower appellate court disagreed with him and remanded the case for other issues to be determined. The question is whether that order is right. The lower court decided, to quote its own language, that ' there is no oral or documentary evidence worth the name to prove the exact or approximate date of the mortgage. There is no doubt the mortgage was in existence in 1839, but there is no evidence that it was executed between the years 1833 and 1839.' It has not found as a fact that the mortgage was executed within sixty years of 1863. It could hardly with propriety have done so, having held that there was no evidence to support such a finding. It has merely held that the acknowledgment Was given within sixty years of 1839 when the mortgage was subsisting and that- such an acknowledgment was sufficient. This is a conclusion of law and in my opinion is untenable, and therefore the appeal ought to be allowed. All the evidence in the case is equally consistent with a mortgage which was sixty years old and also with a mortgage which was not sixty years old in 1863. The principle involved was settled in 1889 in Parmanand Misr v. Sahib Ali (1889) I.L.R. 11 All. 438, when a Full Bench decided that in a case for redemption which presupposes the lawful possession of the defendant, the plaintiff must show in his plaint and prove at the trial that he had a subsisting title at the date of the suit. In that case the plaintiffs alleged a mortgage deed which they did not produce and of which they were unable to give the date. It was held that there was no prima facie evidence that the mortgage had been made in 1826, which date alone would have brought it within sixty years of the suit. Similarly in this case there is no prima facie evidence that the mortgage alleged by the plaintiffs was made between 1833 and 1839 or within sixty years of the acknowledgment relied upon. That Full Bench case has been followed in several others, and in my opinion is binding upon this Court. It is at any rate too late to depart from it even if one were disposed to do so, which I am not. The same principle was applied to a case of an acknowledgment in Khiali Ram v. Taik Ram (1916) I.L.R. 88 All. 540, by my brother Piggott and Mr. Justice Lindsay. I can find nothing in the cases cited to us on behalf of the respondents which is inconsistent with the principle thus affirmed. If it is said that, the Full Bench case reported in I.L.R., 11 Allahabad, did not deal with a question of acknowledgment, the answer seems to me to be this When the plaintiff sues for redemption it does not matter for the purpose of limitation whether he relies upon the original mortgage contract or upon an acknowledgment which has given him a fresh lease of life. In either ease he has to show that his claim is not barred by inclusion of time. The dicta in Dip Singh v. Girand Singh (1903) I.L.R. 26 All. 313, also relied upon by the respondents, merely stated on whom, in the special circumstances of that particular case, the burden of proof lay. The more recent case relied upon of Kamla Devi v. Our Dayal (1919) 17 A.L.J. 330, not reported in the authorized reports, is in my opinion a finding of fact which lays down no principle. The lower courts had held that the acknowledgments were not shown to have been made within sixty years of the date of the mortgage. The High Court by a two-judge Bench consisting of the then Chief Justice and my brother Banerji overruled the courts below and said, to quote the exact terms of the judgment: 'Under the circumstances we ought to hold that the acknowledgments were given before the expiration of sixty years from the date of the bond.' I agree with my brother Piggott that the express language of Section 19 of the Limitation Act contemplates the possibility of an acknowledgment of liability given after the expiration of the statutory period and shows by its terms that a plaintiff before he can succeed upon an acknowledgment at all must establish that it was made before the expiration of the' statutory period. In this case it is not suggested that he has established that fact by any direct evidence. In my opinion no inference can be drawn from the acknowledgment, however fully it may have admitted liability, so far as the actual date of the original mortgage is concerned., It ought not to be presumed that people of the agricultural class in 1863 could not have done otherwise than know the terms of the recent Statute of Limitation of 1859. As is pointed by their Lordships of the Privy Council, in a somewhat similar case to this, reported in I.L.R., 27 Calcutta, page 1012, people may admit liability even though a Statute has actually barred it, but such an admission is ineffectual in law by the express terms of the Statute which we have to apply. The only inference which I feel at liberty to draw from the argument of the case before us, and I have no hesitation in drawing it, is, that so far from this mortgage having been made, as the plaintiff consistently alleged, between 1833 and 1839, it was almost certainly ' made, as appears from the settlement records, anterior to 1833. I cannot resist the feeling that to uphold the decision of the court below would be to introduce uncertainty and vacillation as to the evidence requisite for making an accurate guess of a date which is not proved in evidence and would leave the decision of these cases largely a matter of chance. I would further observe that inferences as to the probable conduct of people in matters of business in the year 1863 are not particularly easy to draw by those who are living under the conditions of 1920, and there is always a danger of inferring that the only -probable conduct of an individual is the course which you yourself would have taken.

10. In my judgment the appeal ought to be allowed and the suit dismissed with costs.

11. By the Court.--In accordance with the decision of the majority of the Bench the order of the Court is that this appeal be allowed the order of the court below be set aside and the decree of the court of first instance be restored with costs in all courts.


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