1. The question for disposal of this appeal is a simple one. The plaintiff appellant came into Court asking for a declaration that certain transfers made by a lady named (sic)Musammat Sarfarasi Kunwari were not binding upon him as the nearest reversioner.
2. One of the transfers which was so attacked wag a transfer by way of mortgage in favour of one Muhammad Shakur, who was arrayed as defendant No. 6.
3. This document of mortgage was executed on the 22nd of September 1894 in favour of Faiz Baksh, the father of Muhammad Shakur. The executants was Sarfarazi Kunwari and the amount which was expressed to be borrowed under the deed was Rs. 683. As security for this loan, Sarfarazi Kunwari purported to grant to Faiz Baksh a uslufrustuary mortgage far 18 odd highas of land.
4. The casa for the plaintiff was that this document had bean executed by the lady without any legal necessity. In the written statement filed by Muhammad Shaknr he pleaded that the document was a good and binding document; that the debt to whish it relates had been incurred for legal necessity, and in the second paragraph of his written statement containing the additional pleas, he distinctly set out the ease, that the father of the plaintiff had consented to this mortgage and that, therefore, the Court ought to hold that the mortgage was binding upon the plaintiff.
5. We may note here that an issne was raised in the first Court upon this plea raised by the defendant Muhammad. Shakur, that is to say, Issue No. 4.
6. The Court of first instants decreed the claim on the finding that there was no proof of legal nscessity for the loan evidenced by the document in suit.
7. On appeal the decision of the first Court has bean reversed by the learned District Judge who has dismissed the plaintiff's suit being of opinion that legal necessity was established.
8. The argument befora us is, that the finding of the learned Judge which purports to be a finding of fast is not based upon any legal evidence and ought not, therefore, to be allowed to stand.
9. It is quite clear from what is recorded in the judgment of the Court below that the learned District Judge fell into a serious error. He has, for the purposes of coming to his conclusions, assumed that this dead of mortgage executed in the year 1894 Was written by the plaintiff's father, a mannamed Sarabsukh. Lal, and treating the fact as undoubtable evidence of the consent of the plaintiff's father who was at that time the nearest reversioner, he has held that the document being executed with such consent must be deemed to have been executed for some valid and binding purpose.
10. If we had been able in any way to support this particular finding of the learned District Judge the casa for the plaintiff would have been at an end, Unfortunately, however, it appears from a perusal of the record, that there is not a (sic)seoap of evidence to show that the document of 1894 to which this suit relates was, as a matter of fast, written by Sarabsukh Lal, Two attesting witnesses to prove the execution of this deed were called on behalf of the defendant Muhammad Shakur. Both of them stated that they were not present a1, the time when the deed was actually written, though they both admitted that they ware present when the lady executed it, and they both deposed that they attested the lady's signature, One of these two witnesses was asked directly the question as to whether the bond was in the hand writing of Sarah sukh Lal. The only answer that he could give was that he did not know. We must take it, therefore, that there is no evidence at all on the record to show that Sarabsukh Lal, the father of the plaintiff, wrote this document.
11. If this finding of the learned District Judge disappears, we are left with prastically nothing which would support the plea put forward by the defendant in support of his case of legal necessity. It is quite true, as the learned Counsel for the respond eat observe, that the document now in suit is one of considerable antiquity, The mortgagor, Musammat Sarfarazi Kanwari, has died and so has the mortgagee who was the father of Muhammad Shaker, In these (sic)ciraumstances, we have been asked to act upon the principle which was laid down by their Lordships of the Privy Council in the case reported as Nanda Lal v. Jogat Kisiore Ach Rule 33 Ind. Cas 420 : 14 A. L. J. 1103 : 20 M. L. T. 335 : 31 M. L. J. 663; (1916) 2 M. W. N. 333 : 4 L. W. 458 : 18 Bom. L. R. 868 : 24 C. L. J. 487 : 1 P. L. W. 1 : 21 C. W. N. 225 : 41 C. 186, 10 Bur L. T. 177 43 I. A 219 (P. C.) There, where their.
12. Lordships were dealing with a somewhat ancient transaction, it was held that recitals in the documents relating to this transaction could not be ignored and ought to be given some weight as evidence in coming to a decision on the question whether the transaction were entered into for purposes of necessity, Their Lordships, however, did not lay down that the recitals by themselves could be taken as conclusive evidence of the legal necessity. We take the judgment to indicate that the recitals coupled with other evidence, circumstantial or otherwise, may amount to sufficient proof in circumstances that the transactions were binding upon the family. Apart, however, from the recitals in the deed which are before us, namely, the recital in the document of 1894 and in a previous document of the 13th of June 1883 to which the 1894 document refers, there appears to us to be really nothing which conld justify us in holding that this particular case falls within the scope of the judgment of their Lordships in the case above-mentioned. There it was held that, in a case like the present, a recital in the document is clear evidence of representation to the lender and it was added that if the circumstances were such as to justify a reasonable belief that an enquiry would have cocfirmed the truth of the representation then, when proof of actual enquiry had become impossible, the recital, coupled with the circumstanses, would be sufficient evidence to support the deed.
13. All we have here to rely on are the recitals; the other circumstances are wanting, and, this being so, we have come to the conclusion that the defendant Muhammad Shakur has failed to discharge the burden of proof which lay upon him, that is to say, the burden of showing that the loan was advanced to Sarfarazi Kunwari for a purpose which was binding upon the property and, therefore, upon the reversioner.
14. The result is, that we allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance. The plaintiff-appellant is entitled to costs both here and in the Court below, the costs in this Court will include fees on the higher scale.