1. This appeal arises out of a suit for the redemption of a Kanom mortgage. The appellant is the first defendant's legal representative. The contesting respondent is the plaintiff who is the jenmi mortgagor. It is quite clear that this mortgage, which is alleged to be one of the year 1859, has not been properly proved unless Ex. A is treated as good evidence of the terms of the mortgage and is regarded as having been technically proved in evidence in the trial Court. Ex. A, which is part of a book kept in the family of the plaintiff containing details of the terms of a considerable number of Kanom demises, was alleged to be a copy of the actual document of mortgage and the trial Court gave a decree on the basis that it was an actual copy. The Subordinate Judge in appeal took the view that Ex. A was not an actual copy but was a memorandum of the terms of the mortgage contained in a book kept in the ordinary course of business and it was therefore admissible to prove the terms of the mortgage.
2. Now, whether Ex. A be used under Section 63 of the Evidence Act as secondary evidence of the original of which it is a copy or whether it be used under Section 32 as a statement made by a deceased person in a book kept in the ordinary course of business, it is a document which has to be proved in one of the ways known to law. It may be proved by the examination of the person who wrote it or by the examination of somebody who knows the handwriting and can swear that it is the handwriting of the person who wrote it or it may be proved by the use of the presumption regarding ancient documents contained in Section 90 of the Evidence Act. Section 90 lays down that in the case of an ancient document produced from proper custody the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular per son is in that person's handwriting. Section 90 does not lay down that there is any presumption regarding anonymous documents the writer of whom is not known. Though the corresponding English rule is usually stated in terms that an ancient document proves itself, I doubt very much whether that rule applies to its full extent in India in view of the very precise terms of Section 90. The entry in Ex. A is not signed by the person who wrote it and there are no materials upon which one can say that a particular person purports to have written it, except a general statement that it is kept amongst the family records as a record of the family's mortgage transactions. I am therefore of opinion that had the objection been taken at the proper time, it would have been necessary to require the plaintiff to adduce some evidence as to the writer of Ex. A, seeing that the presumption under Section 90 would not be sufficient to provide proof of the document. At the same time I am constrained to point out that though there appears to have been a rather futile contest regarding the genuineness of Ex. A - a contest which apparently was sot pressed in the lower appellate Court - there is no suggestion either in the records of the trial Court or in the memorandum of appeal or in the memorandum of second appeal that Ex. A should have been rejected for want of formal proof. It seems to me that this is an objection which ought not to be permitted to be taken for the first time in the course of arguments in second appeal. Although Ex. A is a very old document, it is quite possible that somebody may be available amongst the senior members of the plaintiff's family who can remember the handwriting of the person who wrote it. The plaintiff put the document into the Court relying on the presumption under Section 90 and no objection appears to have been taken at the proper time on the ground that an anonymous document cannot be taken to be properly proved by virtue of this presumption. It is suggested that an objection to the genuineness of the document can be taken to include the lesser objection to its technical proof. I cannot accept this contention. An objection based on an allegation of forgery is a totally different thing from an objection based on a purely technical ground such as that which is urged now. Though an allegation of forgery might conceivably have been met by examining some old man to speak to the handwriting of some long-forgotten clerk, the plaintiff had a much more satisfactory reply to this objection, based on the numerous date stamps of Courts going back for many years indicating the undoubted genuineness of the book (Ex. A). I must therefore take it that the objection to the mode of proof of Ex. A, though based on valid grounds, was not raised at the time when it should have been raised and cannot be sustained in second appeal. It therefore follows that the judgment of the learned Subordinate Judge proceeded on materials which were legally available to him and there is no question that on those materials this Court has no power to interfere with the decision reached* The appeal is therefore dismissed with costs.
3. Leave to appeal is refused.