1. This was a suit upon a mortgage made on July 14th, 1873. The plaintiff was the heir of one Asa Ram, who purchased the rights of the original mortgagees. The suit was resisted by certain persons who were in possession of the property. The original mortgagors were made parties but did not defend the suit. They lost all interest in the property long ago.
2. The plaintiff alleged in his plaint that the original mortgage-deed had been lost and they tendered a registration office copy in evidence. The Munsif decreed the claim holding that the loss of the original deed had been proved. On appeal, the Additional Judge held that the evidence adduced to prove the loss of the deed was not admissible but he was of opinion that on the pleadings, it was for the defendants to prove that the mortgage had been paid off, and as they had failed to do that, the decree of the first Court was correct.
3. The defendants who resisted the suit have appealed to this Court and on their behalf it is contended that as the plaintiff had not proved the loss of the original deed, he was not entitled to sue upon a copy of it and that the burden of proof lay entirely on the plaintiff. On behalf of the plaintiffs respondent, it has bean urged that the evidence adduced to prove the loss of the original-deed was admissible and was sufficient for the purpose, that even if the loss of the deed had not been proved, a copy of it was admissible under Clauses (b) and (f) of Section 65 of the Evidence Act, and that upon the pleadings it was for the defendants to prove that the mortgage had been paid off.
4. We agree with the learned Additional Judge that the evidence adduced to prove the loss of the deed was inadmissible. It consisted of the statement of a solitary witness named Kare that he heard of the loss from Asa Ram many years ago. If, however, the evidence is admissible, we think that it would be unsafe to act upon it. The learned Additional Judge has expressed no opinion as to the value of Kare's evidence. Under the present Code of Civil Procedure, a Court of second appeal can itself dispose of a question of fact not determined by a lower Appellate Court. If the evidence is admissible, we hold that it does not prove the loss of the document. It is easy enough to produce a witness to say that he heard of the loss of a document. It is impossible to contradict him.
5. It seems clear to us that Clause (f) of Section 65 of the Evidence Act does not apply to the case. The plaintiff contends that the original deed is a document of which a certified copy is permitted to be given in evidence by Sub-section (5) of Section 57 of the Registration Act, As long ago as 1874, it was held in the case of Hurish Chunder Mullick v. Prosunno Coomar Banerjee 22 W.R. 303 that this provision of the Registration Act only shows that when secondary evidence has been introduced in any way, a copy certified by the Registrar is admissible for the purpose of proving the contents of the original document. The provision in question was probably enacted in order that copies of the registers might be adduced in proof of the original documents; without such a provision, copies of the registers might have been open to the objection that they were copies of copies.
6. The question of the burden of proof and the applicability of Clause (b) of Section 65 of the Evidence Act may be considered together. The learned Additional Judge was of opinion that the contesting defendants had, to all intents and purposes, admitted the original deed, because they said that it had been satisfied and returned to the mortgagors. We are unable to take this view of the pleadings. The contesting defendants, who are, of course, stranger to the alleged mortgage, said in their written statement that they knew nothing about the deed. They put the plaintiff to the proof of his allegations and they added that from what they had been able to learn in the village, the mortgage had been paid off. It appears to us that this means that they do not admit the fact of the mortgage or that it was made for consideration but say that if there was one, it must have been paid off long ago. If the case is covered by Clause (b) of Section 65 of the Evidence Act, the only secondary evidence admissible is the supposed written admission, i.e., the defendants' written statement, but the written statement cannot by any means be regarded as an admission of the terms of the mortgage set out in the plaint. The plaintiff cannot be allowed to disconnect the so-called admission from the context in which it appears and use it as an unqualified admission of the mortgage. The defendants were surely entitled to put the plaintiff to proof of his allegation that the deed had been lost and in the alternative to plead that the mortgage had been paid off. This is what they did.
7. The plaintiff relies upon the decision of this Court in Chuni Kuar v. Udai Ram 6 A. 73; A.W.N. (1883) 221 In that case, the defendant definitely admitted the bond and said that it had been returned to him when he paid it off, and that it was in the possession of the widow of his mukhtar but she declined to give it up. The defendant failed to prove his allegations. If was the case of both parties that the bond could not be produced and the only issue in the case was whether it had been paid off. On the question of payment, the burden of proof was, of course, on the defendant. The file of the case shows that the bond was executed in May 1879 and the suit was brought in 1881. The parties to the suit were the parties to the deed and the defendant expressly admitted the execution of the deed. That case is clearly distinguishable from the present case.
8. Here, as in so many cases where claims are made upon old mortgages, the original mortgagors have lost their interest in property, the contesting defendants have no knowledge of the transaction, and the fact that no claim has been made on the mortgage for so many years raises a doubt whether the mortgage was not paid off many years ago and a suspicion that the mortgagors may be in collusion with the plaintiff. In such a case as this, we do not think that an alternative plea that the mortgage has been paid off should be treated as an admission of the transaction sufficient to relieve the plaintiff of proving the loss of the original deed and entitle him to sue upon a copy of it and call upon the defendants to prove that it has been paid off.
9. In our opinion, there is nothing in the written statement which relieves the plaintiff from the necessity of proving the loss of the deed before he can put in a copy. The plaintiff has failed to prove his allegations and we think that his suit should have been dismissed. We allow this appeal, set aside the decrees of the Courts below and dismiss the suit with costs in all three Courts. Costs in this Court to include fees on the higher scale.