1. This is a second appeal in a suit for redemption of a mortgage alleged to have been executed in 1865. The defendants-appellants denied the existence of the mortgage. No notice was served on them to produce it, but it is not seriously disputed that if it was in their possession the nature of the suit was sufficient to give them notice that they must produce it and that the plaintiffs were entitled to produce secondary evidence. It is settled law that the plaintiff must prove the mortgage which he sets up Sheo Prasad v. Lalit Kuar 18 A. 403 : A.W.N. (1896) 132 : 8 Ind. Dec. (N.S ) 975. The lower Appellate Court has found on the basis of various items of documentary evidence that the property was originally mortgaged to the defendants. The documentary evidence gives no assistance as to the date of the mortgage nor does it in any way show that it was the mortgage in suit. To supply this defect two witnesses were produced. The learned Judge of the Court below has rejected one of these witnesses as false, but has accepted the evidence of the other Anandi Lal. The first and main plea taken in this Court is that Anandi Lal's evidence, even if believed in full, is not such secondary evidence as is recognised by Section 63 of the Evidence Act. Under Sub-section (5) of that section only a witness who has himself seen a document is entitled to give oral evidence of it. This clearly implies that it must be a witness who could read the document and this view was taken in Ghure v. Chatrapal Singh 23 Ind. Cas. 11 : 12 A.L.J. 239, where it was held that a person who was unable to read a document could not give secondary: evidence of its contents. The evidence of Anandi Lal has been laid before me. It shows that the document was mitten in Persian characters which the witness was unable to read. A plea was taken by the respondent to the effect that the Court should presume under Section 114 of the Evidence Act that the original mortgage is in possession of the appellant and that, if produced, it would have proved to be the mortgage in suit. The respondents would be in a stronger position for raising this plea if they had given notice to the defendants to produce the original deed. The defendants deny that the deed is in their possession and there is nothing to establish that this denial is false. It is only if the deed is in their possession and has been wilfully suppressed that the Court is entitled to presume that the contents of the document, if produced, would have been unfavourable. In the case of a very old mortgage the possibility of its having been lost and being no longer in existence is naturally much greater than in the case of a mortgage of recent date. Under the circumstances of this case I am not prepared to draw the inference which the learned Counsel asks me to draw.
2. A plea of limitation under Article 134 of the limitation Act is also urged by the appellant in respect of one of the shops, but in view of my decision in the first issue it has not been necessary to decide this.
3. I, therefore, accept the appellants' contention and allow the appeal. I accordingly allow the appeal and setting aside the decree of the Court below restore the decree of the Munsif with costs in all Courts.