1. The plaintiff's allegations are that a Nair Tarwad was the jenmi of the plaint property, that it was mortgaged to the ancestors of defendants Nos. 1 and 2, that the said persons sub-mortgaged it to a person not before the Court who transferred his rights to the 3rd defendant, that the 3rd defendant subsequently purchased the jenm right from the Nair Tarwad and gave the plaintiff a second mortgage in 1912 (Exhibit H). He sues to redeem the first mortgage. He does not give the date of the first mortgage but relies upon the admission of the ancestor of the 1st and 2nd defendants contained in Exhibit A and upon the statement of the 2nd defendant contained in Exhibit L In Exhibit A, while granting a sub-mortgage, the ancestor mentioned that the property was held by him under a kanom from the Nair Tarwad. In Exhibit L, which was a statement Bled in proceedings taken by the plaintiff under Section 83 of the Transfer of Property Act, the 2nd defendant stated that the amount due and payable to him under the mortgage was not the amount deposited in Court. How far this admission is evidence against the 1st defendant and to what extent the 2nd defendant himself is bound by it are questions for the Appellate Court. The case for the defendants is that the mortgage sought to be redeemed is not subsisting and that the burden is on the plaintiff to prove that there is a redeemable mortgage.
2. The District Munsif held that the suit was not barred by limitation, but that as the plaintiff failed to prove the mortgage sued on, he was not entitled to a decree.
3. On appeal, the Subordinate Judge held that the burden of proving that the mortgage sought to be redeemed is subsisting was on the plaintiff and that as he failed to prove that fact, the suit was rightly dismissed.
4. Mr. K.P.M. Menon, for the respondent, has placed before us certain considerations which, if we were hearing the appeal, might have considerable weight with us. The 3rd defendant is certainly in a position to throw light on the date and nature of the mortgage and it may be that the plaintiff ought to have summoned him to produce the mortgage-deed, if it exists but that is a matter to be considered by the Appellate Court.
5. On the point decided by the Subordinate Judge we are unable to agree with him. As we read Exhibit L, the 2nd defendant admitted that at that time there was a mortgage capable of being redeemed. If the defendants have acquired an irredeemable right subsequently, they ought to prove it. See Dip Singh v. Girand Singh 1 A.L.J. 1 and Daia Chand v. Sarfraz 1 A. P 117: 1 Ind. Dec. 79.
6. Mr. Menon sought to support the decision on the authorities cited in the judgment of the District Munsif. The proposition enunciated in Krishna Pillai v. Rangasami Pillai 5 M.L.J. 187 is that where a plaintiff fails to establish the specific mortgage sued on, he should not be given a decree on a mortgage to be spelled out from documents or pleadings to which the defendant was a party. This view was followed in Vasudevan Nambudri v. Krishna Pisharoti 13 M.L.J. 274 and in Kalliani Amma v. Narayanan Nambiar 28 Ind. Cas. 69: (1915) M.W.N. 105. As a general proposition there can be no objection to this statement of the law: but there may be exceptions. The plaintiff might have been under a bona fide mistake and might have been led into the error by the conduct of the defendants. In such cases notwithstanding his failure to prove the specific mortgage, he may be permitted, by allowing him to amend the plaint, to claim a decree on the admission of the defendant. See Paykat Manakkal v. Theyyankaran 32 Ind. Cas. 624 and Kadakamvalli Sankaran Mussud v. Mokkath Ussain Haji 17 M.L.J. 329 In no case may a plaintiff who has fabricated a document be allowed to obtain a decree on the admission of the defendant.
7. But in the present case both the plaintiff and the defendant had but one mortgage in their minds. See Exhibit L. The only question was whether that mortgage was subsisting or has become irredeemable. In this class of cases, the point for consideration is on whom does the burden of proof lie to prove that it is subsisting. Ordinarily on the principle that the mortgagee must be aware of the date of the transaction to which he or his predecessor was a party, the burden of proof will lie on the defendant. What quantum of evidence may displace this burden will depend on each case. See Khiali Ram v. Taik Ram 36 Ind. Cas. 452. The view taken by the Subordinate Judge is, therefore, wrong. We must set aside his decree and remand the appeal to him for disposal according to law. Any application for fresh evidence must be made to him. Costs will abide the result.