1. This is an appeal by the plaintiffs. They instituted the suit out of which this appeal has arisen for recovery of property, being a fixed-rate tenancy by way of redemption. They succeeded in the Court of first instance; but the learned District Judge in appeal held that the mortgage had not been proved.
2. It appears that there were ten defendants in the case and out of them only five are in possession. The defendants are admitted by the only contesting defendant (No.3) to be the descendants of the persons in whose favour the alleged mortgage was executed. The evidence was that the lands were the fixed-rate tenancies of defendants Nos. 1 to 5 and that, although the plaintiffs were the descendants of the alleged mortgagor, there being no mortgage, the suit must fail.
2. The Court of first instance pointed out that in the Settlement of 1840, the name of the grandfather of the plaintiffs was recorded as the fixed-rate tenant. The alleged mortgage was executed in 1872. The original deed has been produced by one Badri Tewari, who is admittedly one of the alleged mortgagees, The deed, therefore, comes from proper custody. The plaintiffs examined an old man to prove the execution of the deed, but his evidence has been disbelieved by the learned District Judge, It has been urged for the contesting respondent that the finding of the lower Court is really a finding of fact and this Court cannot go behind that finding. I accept the argument in so far as the learned Judge says that the old witness is not reliable. But then the question remains whether the presumption mentioned in Section 90 of the Evidence Act should not be applied to the mortgage-deed in question, As I have said, the deed is a registered one. We have found that the ancestor of the plaintiffs was the original tenant of the property. We have' found that the deed comes from proper custody. Under the circumstances, it would be very unfair with respect to any transaction so old as 1872 not to apply the presumption of law in favour of the proper execution of the deed. It appears that the executant was illiterate and the Patwari of the village, one Sheoraj Das, signed the name of the executant, not only on the deed but also before the Sub-Registrar. The practice of taking thumb impressions was not in vogue in 1872. Sheoraj Das is one of the witnesses who identified the executant before the Registering Officer. The learned Judge remarked that there was a ruling of this Court under which he was prohibited from presuming that Sheoraj Das had signed the document under authority from the mortgagor Ram Autar. He does not quote the case and it has not been quoted on either side before me. But I presume the learned Judge had in his mind the case of Sheo Nandan Ahir v. Ram, Lagan Singh 30 Ind. Cas. 908 : 13 A.L.J 921, decided by Tad-ball, J. There is, no doubt, some observation of the learned Judge to the effect that there is no presumption as to the authority, of the person signing for the executant. But the observations were made having regard to the peculiar facts of that case. The deed in the case before the learned Judge was unregistered. It was written throughout in the pen of one man. The signature of the executant and those of the witnesses were all in the pen of the same man. There was nothing to show that the lands mortgaged ever belonged to or were ever held by the alleged mortgagor. The facts in this case are all in favour of the appellants. The deed is a registered one. It has been found that in 1840 the plaintiffs ancestor was the recorded tenant. The transfer of possession to the aelenaants has not been accounted for and can be accounted for only b y the mortgage-deed. The person who signed the deed for the illiterat6 executant is the person who singed before the Sub-Registrar for him. So for as the signature before the Sub-Registrar goes, we can surely presume that the Sub Registrar accepted the Patwari's signature simply because the executant authocrised him to sign the endorsement before the Sub-Registrar. The law in 1872 did not require that the mortgagee should put his mark on the deed. The case of Sheo Nandan Ahir 30 Ind. Cas. 908 : 13 A.L.J 921. has, therefore, No. application the facts of this case. The document, in my opinion, should have been accepted as sufficient evidence of the mortgage.
3. I allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance, Costs in this Court and in the lower Appellate Court will be paid by the answering respondent.