1. This is a plaintiff's appeal and arises out of a suit for redemption. The plaintiff alleged that his paternal grandmother, Mt. Jhamtnan Kunwar, made a mortgage in favour of the ancestors of the defendants, namely, Mindai Singh and Mangal Singh, some time between 1863 and 1869; that the mortgage was for Rs. 40, that the mortgagee is still in possession, that the plaintiff is entitled to redeem the same on payment of the amount of the mortgage money. The defendants denied that there was any such mortgage as was alleged by the plaintiff in existence. They however admitted that there was a mortgage in their favour but they said that it had been more than 60 years prior to the institution of the suit and that any suit for the redemption of that mortgage would be time barred.
2. The parties led evidence. The first Court was satisfied that the plaintiff had proved the mortgage he set up and decreed redemption. The defendants appealed and that appeal was accepted by the learned subordinate Judge and the suit was dismissed. In this Court it is contended on behalf of the plaintiff that on the facts found by the Court below the Court ought to have held that the mortgage set up by the plaintiff was established. The judgment of the learned Subordinate Judge has caused us some difficulty inasmuch as we cannot clearly gather what his intention to find was. At one place the learned Judge seems to have said that the mortgage in suit was subsisting and the acknowledgment of 1873 saved limitation. What follows this statement is rather confusing. Ultimately the learned Judge has held as we have indicated.
3. In view of the fact that the finding of fact of the learned Judge is not clear and satisfactory we have taken it up ourselves to look into the evidence. We find that in the khewat of 1865 Mt. Jhamman Kunwar is recorded as the owner of a certain property along with others. No mortgage is mentioned. Then we find an extract from a khewat which relates to a mutation order. The mortgagee there stated is Mindai Singh alone and the mortgagor is Jhamman Kunwar. Then we find there is a wajibularz of the year 1870 in which it is distinctly stated by those who signed the document that the share of Jhamman Kunwar was mortgaged for Rs. 40 in favour of Mindai Singh and Mangal Singh. This wajibularz purports to have been signed by one Shib Sahai for Mindai Singh and Mangal Singh. The document is certified copy of the original which is more than 30 years old. We are, therefore, under a Full Bench ruling of this Court, Bodha v. Suhhram Singh : AIR1925All1 of opinion that Shib Sahai was authorised by Mindai Singh and Mangal Singh to sign for them. Then comes the khewat of that vary year, 1870. It distinctly says that Jhamman Kunwar owned a 4th share in a 1 biswa 10 biswansis share and that Mindai Singh and Mangal Singh were her mortgagees.
4. Reading all the documents together we find that there was no mortgage in 1863 for none was mentioned in the khewat. Jhamman Kunwar is shown holding her own share without any encumbrance. Then follows the mutation order, then there is the acknowledgment in the wajibularz of the mortgagee and there is the khewat indicating the share mortgaged and the names of the mortgagor and the mortgagee. On this state of the evidence we hold that the mortgage must have been made some time between 1863 and 1865. It was acknowledged in clear terms in 1870 and therefore the right of redemption subsisted at the date of the suit.
5. Mr. Shabd Saran has argued that the mortgage is not proved becase the witnesses who professed to have witnessed the execution of the mortgage did not say that they had read the document. But the rule of law that is applicable to this case is Section 65 of the Indian Evidence Act. It says in Clause (b) that where the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest the written admission is admissible. This is the case here. In the wajibularz the predecessors in title of the present defendants admitted in writing the existence, condition and also the contents of the original. So there is no difficulty in the proof of the mortgage. I would allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance granting further time for redemption.
6. I fully agree, and would only add that in the Pull Bench case of Bodha v. Sukhram Singh : AIR1925All1 the question referred to the Pull Bench had assumed that the document 'had purported to be executed' by the party. In such an event, there could, of course, be no doubt that under Section 90 of the Indian Evidence Act a document purporting to be executed by a party must be presumed to have been duly executed by him, which includes the presumption as to the authority of the person signing for him. But there is also no doubt that the view of Pull Bench was that a document bearing the name of the alleged executant by the pen of another is a document purporting to have been executed by the executant to which therefore Section 90 would apply.