Mohammad Ismail, J.
1. This is a plaintiffs' appeal against an order of remand. The facts of the case have been fully set out in the judgment of the Court below and need not be repeated. The plaintiffs brought this suit for redemption of a usufructuary mortgage dated 23rd May 1872 executed by Parmai, Likkha and Pemi in favour of Khub Chand and Lakshmi Das. The plaintiffs are the representatives of the mortgagors while the defendants are the representatives of the mortgagees. The suit was contested on various grounds. The trial Court held that the plaintiffs were not liable to pay anything under the mortgage as on accounting it was found that the plaintiffs were entitled to Rs. 1095-8-9. The defendants appealed from the decree of the trial Court. Before the Appellate Court the defendants relied upon a tacking bond dated 16th July 1872 under which the same property was mortgaged by the same mortgagors in favour of the same mortgagees. It was pleaded that the plaintiffs were not entitled to a decree unless and until they paid off the money due under the second mortgage. The defendants prayed for permission for the amendment of the written statement. The lower Appellate Court granted permission for amendment and remanded the suit to the trial Court with directions to try the suit in the light of the amended written statement. The plaintiffs did not appeal from this order of remand. The learned Munsif upon a consideration of evidence held that the bond of 16th July 1872 was not legally proved. He accordingly maintained the decree originally passed by him. Upon appeal the lower Appellate Court was satisfied that the document of 16th July 1872 was a valid mortgage and was binding on the plaintiffs. The case was then remanded to the trial Court for taking accounts and passing an appropriate decree. The plaintiffs have now come to this Court in appeal. Learned counsel for the appellants has challenged the order of the Court below and has raised several points in support of his contention. I now proceed to examine them in detail.
2. It is contended that the defendants were not entitled to rely upon a copy of the bond of 16th July 1872 as the loss of the original was not satisfactorily proved. The bond in suit was executed in favour of Khub Chand and his son Lakshmi Das. Both the mortgagees are admittedly dead. Lakshmi Das left four sons. Jagannath is one of them. It is admitted that Jagannath is the head of the family. The document in question was summoned from Jagannath who failed to produce it. In my opinion, it was a sufficient compliance with law to have summoned the document from the head of the family now representing the mortgagees. No objection to this effect appears to have been taken in the Court below and apparently it was accepted on behalf of the appellants that the respondents were entitled to rely upon a copy of the original document provided they proved the execution and passing of consideration in accordance with law. In my opinion there is no force in this objection.
3. The next point urged by learned Counsel is that there is no presumption of genuineness of a copy within the meaning of Section 90, Evidence Act. Under Section 90 where any document, purporting or proved to be 30 years old, is produced from any custody which the Court in the particular case considers proper, the Court may 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. This proposition of law is not disputed. It follows therefore that the burden of proving the execution of the bond of 1872 lay on the defendants. The Court below upon an examination of evidence was satisfied that the bond of 16th July 1872 was legally proved. Evidence was produced to the effect that all the attesting witnesses were dead and that two of the attesting witnesses, namely Bhojraj and Mohammad Khan, signed or thumb-marked the document as attesting witnesses. Learned counsel contends that the evidence relied upon by the Court below should be rejected because one of the attesting witnesses described by the witnesses as Mohammad Khan is really Kammu Khan or Najju Khan. There is no doubt that the copy produced in Court supports the contention of learned Counsel, but this point was never raised in the trial Court.
4. It would have been possible at that stage to summon the original from the registration department to see whether the correct name was Mohammad Khan as stated by the witnesses or Kammu Khan or Najju Khan as appears to have been written by the copyist. I may mention that the name is not very clearly written in the copy and it is conceivable that the copyist is in error in writing Najju Khan instead of Mohammad Khan. A comparison of the same name at two places shows that the copyist was doubtful as to the correctness of the name. On the first page the name may be read as Najju Khan or possibly Mohammad Khan wald Saadat Khan; in the second page it is clearly Kammu Khan. It is manifest that the same person signed as an attesting witness and as an identifying witness. The parentage, age and residence are identical. It is therefore unsafe to accept the contention of learned Counsel that the correct name is Najju Khan or Kammu Khan. It may have been Mohammad Khan as described by the witnesses. It is undesirable to embark upon a fresh investigation at this stage of the case. It was the duty of the appellants to have raised this objection at the proper time, namely in the trial Court.
5. It is then contended that the attestation is not legally proved. This argument is based on the assumption that the real attesting witness was Najju Khan or Kammu Khan. I have already held that there is no justification for accepting the argument of learned Counsel on this point. It may also be observed that my attention has not been drawn to any provision of law under which the present bond was required to be attested by at least two witnesses. Section 59, T.P. Act, no doubt directs that:
Where the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
6. This provision is to be found in the Act which came into force in July 1882. In the present case however we are concerned with a document which came into existence in 1872. Learned counsel for the appellants has not referred me to any provision of law in the earlier enactment which required the attestation by two witnesses of a mortgage deed. In the circumstances therefore I accept the finding of the Court below that the bond of 1872 is legally proved. The next point stressed by learned Counsel is that the bond of 1872 amounts to a clog on redemption and as such is inoperative. In support of his contention reliance has been placed on Sheo Shankar v. Parma Mahton (1904) 26 All 559. A perusal of the bond in suit shows that the parties agreed that the usufructuary mortgage of 23rd May 1872 would not be redeemed unless and until the later bond of 16th July 1872 was paid off. I do not consider it necessary to examine this point at length because a similar question was considered by a Full Bench in Har Prasad v. Ham Chandar (1922) 9 AIR All 174. In that case, one of two co-owners of property, the subject of a usufructuary mortgage, borrowed a further Sum of Rs. 50 from the mortgagee and executed a deed which set forth that the executant was borrowing the further sum which shall be paid when the usufructuary mortgage was redeemed. It was also stipulated that without the payment of the sum borrowed under the subsequent deed the property shall not be redeemed. The learned Judges held
that the effect of the 'Mashrut-ul-rahn' was to create a further usufructuary mortgage on the share of the executant, which was already under the mortgage of 1880 and was made security for the additional debt incurred, and that by the terms of that deed the mortgagee was entitled to retain possession of his share of the property until the amounts secured by the two documents were paid to him.
7. The ruling cited by learned Counsel was not referred to by the Pull Bench but several other cases where the same point was considered were referred to. The facts of the present case are more or less similar to those in the Pull Bench case. By the bond of July 1872, the mortgagors stipulated that they would not be entitled to get possession of the property mortgaged under the usufructuary mortgage of May 1872 unless they paid the sum due under the subsequent mortgage. In effect, the second mortgage amounted to a usufructuary mortgage though the deed does not say so in so many words. In my opinion the second mortgage does not constitute a clog on equity of redemption. I may mention that this point was never taken in the Courts below nor has it been mentioned in the memorandum of appeal to this Court.
8. It was then argued that the suit was barred by limitation as the amount covered by the bond was payable on demand. This point again was never taken in the Court below nor has it been taken in the grounds of appeal. Even if we assume that the contention of learned Counsel as to the interpretation of the deed is correct it will be open to the defendants-respondents to lead evidence to prove acknowledgments which may extend the period of limitation. I am by no means satisfied that the interpretation of the deed, as contended by learned Counsel, is correct. In my opinion the suit is not barred by time.
9. Lastly, it has been contended that there is no evidence to prove the passing of consderation. As a rule, a recital in the deed is no evidence to prove the payment of consideration. But in a case like the present, where the transaction took place some 60 years back and where the parties to the transaction are all dead the recital in the deed may be relied upon as a reliable piece of evidence. Almost all the money under the bond was left for the satisfaction of a decree which had been passed against the mortgagors. There is no reason to believe that the reference to the decree is imaginary or incorrect and that the executants wrongly admitted the receipt of consideration. No rebutting evidence was produced by the appellants. Under these circumstances I am not prepared to differ from the Court below which held that the payment of consideration was proved. In the result the appeal fails and is dismissed.