C.M. Lodha, J.
1. This is a plaintiffs' second appeal arising out of a suit for redemption of mortgage of a house situated in village Tantati District Aimer.
2. The plaintiffs' case is that their ancestor Teipal made a usufructuary mortgage of the house in question for Rs. 400/ in favour of Nandlal and Nahar Singh ancestors of the defendants by a registered mortgage deed dated 16-2-1960 and that they were entitled to redeem the same on payment of the principal sum of Rs. 400/-, They also claimed mesne profits at the rate of Rs. 10/- per month from the date of suit till the delivery of possession of the house to them. The defendants denied the alleged mortgage. The learned Munsiff, Kekri held that the alleged mortgage was not proved, & consequently dismissed the suit. On appeal by the plaintiffs the judgment and decree by the trial court were upheld by the learned Additional Civil Judge, Ajmer. Consequently, the plaintiffs have come in second appeal to this Court.
3. Both the learned counsel for the parties are agreed that there survives only one point for decision in this case and that is whether the plaintiffs have succeeded in proving the mortgage set up by them?
4. The original mortgage deed is not on record but only a certified copy of the same obtained from the Registration Department has been submitted by the plaintiffs and marked Ex. 1. The plaintiffs have also produced P. W. 2 Suwalal and P. W. 4 Hariram to prove the existence and contents of the mortgage deed. P. W. 2 Suwalal has stated that the defendant No. 1 Jaisingh and Nahar Singh, father of defendant No. 2 showed a stamped document to him for Rs. 400/- and Hariram on behalf of the plaintiffs asked Jaisingh and Nahar Singh to take the mortgage money and redeem the house and thereupon Jaisingh and Nahar Singh demanded the amount due on the basis of other Khatas in addition to the mortgage money. He further stated that the stamped document was in respect of the house in question. P. W. 4 Hariram states that he was preseatwhen the mortgage deed was written in the court compound and the same was attested by Chothmal and Nathmal and signed by Tejpal in his presence. He further states that the mortgage deed was scribed by one Munshi. The learned Additional Civil Judge held that since the plaintiffs had not given notice to the opposite party to produce the mortgage deed, secondary evidence of the same was inadmissible. He also held that as required by Section 68 of the Evidence Act, one of the attesting witnesses to the mortgage deed should have been called for the purpose of proving its execution, and since this has not been done nor the plaintiffs had led evidence to show that both the attesting witnesses are dead, the document cannot be used as evidence.
5. Learned counsel for the appellant has urged in first instance that the requirement for production of secondary evidence as laid down in Section 65(a) is fully satisfied and further that the case is covered by the proviso to Section 66 which lays down that notice shall not be required in order to render secondary evidence admissible when from the nature of the case the adverse party must know that he will be required to produce it or in any other case in which the Court thinks fit to dispense with such notice. In support of his contention he has relied on Dinanath Rai v. Rama Rai, AIR 1926 Pat 512; Union of India v. Indradeo Kumar, AIR 1963 Pat 129; Baboolal v. Nathmal, AIR 1956 Rai 126 and Bahadur Singh v. Madho Singh. 36 Ind Cas 696 = (AIR 1916 Oudh 161).
6. In AIR 1926 Pat 512 it was held that under proviso to Section 66 no notice shall be required in any case in which the Court thinks fit to dispense with it. It was further held that the Court must be taken to have dispensed with the notice for the reason that the defendant denied that there was or ever had been, a mortgage deed at all.
7. In AIR 1963 Pat 129 it was observed that when it was found that the original document was in possession or control of the party taking the objection and it failed to produce it, a notice to the party to produce the original was not necessary as by the nature of the case the party must be held to be knowing that it would be required to produce it.
8. In AIR 1956 Rai 126 it was held that in case of mortgage transaction the document of mortgage must be in possession of the mortgagee and consequently in a suit for redemption by the mortgagor it is for the mortgagee to produce that document and if he failed to do so the plaintiff would be well within his right to produce secondary evidence not only about the existence of themortgage deed but also about its contents.
9. In 36 Ind Cas 696 = (AIR 1916 Oudh 161) the plaintiffs alleged that original mortgage deed was in the defendant's possession but the defendants altogether denied in their written statement the existence of the deed. It was held that having regard to the provisions of Section 66 of the Evidence Act the case was one in which the plaintiffs could claim to give secondary evidence of the existence and contents of the mortgage deed in suit. It was further held that under the circumstances of the case the Court might in the exercise of the discretion under Section 66 of the Evidence Act dispense with issue of a notice to produce the document.
10. In the present case there is not the least doubt that the transaction of mortgage was evidenced by a document and the defendants have completely denied the mortgage. It would, therefore, be idle and a useless formality for the plaintiffs to have given notice to the defendants for production of the original mortgage deed. Besides that having, regard to the common course of human conduct and business the mortgage deed must be in possession of the mortgagees and from the nature of the case, the defendants must have known that they would be required to produce the original mortgage deed which presumably was in their possession. In these circumstances I have come to the conclusion that the original mortgage deed appears to be in the possession of the defendants against whom the document is sought to be produced and that from the nature of the case the defendants must know that they would be required to produce it. No notice was therefore, required in order to render secondary evidence of the document admissible. I am also of the opinion that in the circumstances of the case the trial court must be deemed to have thought fit to dispense with notice when it allowed Ex. 1 certified copy of the mortgage deed to be put in evidence. It may also be mentioned that no objec-tion was taken by the defendants as to the mode of proof in respect of the mortgage deed. It was essential that the objection should have been taken at the trial before the document was exhibited and admitted in evidence.
11. It was held in Maharaia Shree Umaid Mills Ltd v. Union of India. AIR 1960 Rai 92 that an obiection to the mode of proof of a document 'as distinct from its admissibility'' must be taken at the trial before the document is marked as an exhibit and admitted to the record. Consequently I hold that the courts below were not iustified in excluding from consideration the secondary evidence produced by the plaintiffs to prove the existence and contents of the mortgage deed.
12. Now it remains to consider the other ground on which the plaintiffs have been non-suited namely that the plaintiffs have failed to prove the execution of the mortgage deed as required by Section 68 of the Evidence Act inasmuch as not even one attesting witness was called for the purpose of proving its execution. Learned counsel for the appellants has urged that by virtue of Section 89 of the Evidence Act it must be presumed that the mortgage deed was attested, stamped and executed in the manner re-Quired by law and in support of his contention he has relied upon Kashibai Mar-tand v. Vinayak Ganesh, AIR 1956 Bom 65 and Karuppanna Gounder v. Kolandaswami Gounder, AIR 1954 Mad 486.
13. In AIR 1956 Bom 65 it was observed that the presumption contained in Section 89 of the Evidence Act cannot be said to be limited merely to the mechanical part of attestation or execution and further that the presumption which is justified under Section 89 is in respect of the legal requirements as to attestation, stamping and execution. In my opinion this case is not of much assistance to the appellants because the document was called for from the party and the same was not produced even though notice to produce the same had been given to it. In the present case admittedly no notice to produce the original mortgage deed was given by the plaintiff to the defendant.
14. In AIR 1954 Mad 486 it was held that once the case for introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57(5) of the Registration Act without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. It may be noted that it had been found that the executant and the attestors of the original deed were all dead and it was not possible to prove the same by direct oral evidence. It further appears that the plaintiffs had done all they could by giving notice to the defendants to produce the original but the notice had not been complied with. Learned counsel has not been able to produce a single authority where Section 89 of the Evidence Act has been pressed into service even when no notice had been given to the partv to produce the document. As the wordings of Section 89 clearly indicate its operation is restricted to cases where a notice to produce the document has been given to the opposite party. Admittedly in the present case the defendants were not given notice to produce the document, and.therefore I am of opinion that Section 89 cannot come to the plaintiff's aid. Section 57(5) of the Indian Registration Act. 1908 simply provides that all copies given under this section shall be signed and sealed by the Registering Officer and shall be admissible for the purpose of proving the contents of the original document. This does not do away with the provisions of Section 68 of the Evidence Act, the relevant portion of which reads as follows :--
'68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.'
15. In the present case there is no evidence on the record to show that the attesting witnesses to the mortgage deed Ex. 1 namely Choth Mal and Nath-mal were not alive at the time when the plaintiff's evidence was being recorded. It appears that during the course of arguments before the trial court the plaintiffs made an application on 20-10-1962 supported with an affidavit that both the attesting witnesses to the mortgage deed Ex. 1 had died about 30 to 35 years ago. The trial court refused to allow any further opportunity to the plaintiffs to prove this allegation and decided the case against the plaintiffs on the ground that they had failed to prove the execution of the mortgage deed as required by Section 68 of the Evidence Act. In the memo of appeal before the learned District Judge, Ajmer the plaintiffs took an objection that the trial court should have given the appellants an opportunity to prove that the attesting witness to the mortgage deed Ex. 1 had died long ago, and, therefore, it was impossible to have produced any one of them in evidence. The learned Additional Civil Judge, who disposed of the appeal held that the trial court had rightly rejected the plaintiffs' application dated 20-10-1962 because the affidavit could not have been read in evidence. However, he did not consider the plaintiffs' prayer for allowing him an opportunity to produce further evidence on the point. In this Court also it has been prayed on behalf of the appellants that looking to the facts and circumstances of the case the trial court should have allowed the plaintiffs an opportunity to prove that the attesting witnesses to the mortgage deed had died long back.
16. It may be observed that themortgage deed which is a registereddocument was executed as far back as8-3-1900 and the suit was instituted in 1962. Thus 61 years had elapsed between the execution of the document and the institution of the present suit. It would also be reasonable to presume that the age of the attesting witnesses at the time when the mortgage deed Ex. 1 was executed must be at least about 18 years. Consequently the attesting witnesses, if alive at the time the plaintiffs' evidence was being recorded would be about 80 years old that is of an extreme old age and it is very likely that both of them may have died before the institution of the present suit. It is also important to note that in the affidavit of Madanlal filed along with the application dated 20-10-1962 there is a definite assertion that both the attesting witnesses Chothmal and Nathmal hod died 30 to 35 years, ago. The defendant no doubt filed a reply on 22-10-1962 to this application, but he did not controvert the plaintiffs' allegation that both the attesting witnesses had died 30 to 35 years ago. He merely opposed the plaintiffs' application on the ground that the plaintiffs had ample opportunity to produce their evidence and that no further opportunity could be given to them for adducing any proof regarding the death of the attesting witnesses of the mortgage deed. It further appears that none of the parties were alive to the requirements of Section 68 of the Evidence Act with the result that none of them cared to bring out in the course of recording of evidence whether the attesting witnesses to the mortgage deed were alive or dead. As already stated above, looking to the circumstances of the case, and specially the age of the document there is a high probability that both these witnesses may have died prior to the institution of the present suit. In these circumstances I am of the opinion that in the interest of iustice the trial court should have allowed an opportunity to the plaintiffs to produce evidence in support of their application dated 22-10-1962 to the effect that both the attesting witnesses had died long back.
17. In the result, I allow this appeal, set aside the judgments and decrees of the courts below and remand the case to the Court of Munsiff. Kekri with a direction to give an opportunity to the plaintiffs to produce evidence in support of the allegation contained in their application dated 22-10-1962 that both the attesting witnesses to the mortgage deed namely Chothmal and Nathmal had died long before the institution of the present suit. The defendants will also be given chance to rebut the evidence which the plaintiffs may produce in this connection.
The case may thereafter be decided according to law. Since the appellants have been negligent in the conduct of the case, I further direct that they shall pay costs of this court as well as of the first appellate court to the defendants before they are allowed an opportunity to lead evidence as stated above. In case they fail to pay the costs as mentioned above, this appeal shall stand dismissed without any order as to costs. Costs hereafter will abide the result. Let the record of the case be sent as early as possible to the Court of Munsiff. Kekri for proceeding according to law.