1. This appeal is directed against a decree of dismissal in a suit for redemption of an alleged usufructuary mortgage. The defendants deny the title of the plaintiff and their contention has found favour with the Courts below. Upon the present appeal, the decree of the Subordinate Judge has been assailed on behalf of the plaintiff, on three grounds; namely, first, that a certified copy of a perpetual lease dated the 21st December 1874 was improperly rejected by the Court of first instance; secondly, that the first mortgage deed was improperly excluded from evidence upon a misapprehension of the legal effect of the provisions of Section 90 of the Indian Evidence Act; and, thirdly, that the Court of first instance ought not to have received in evidence a road-cess return produced by the defendants as evidence in their favour, because it does not show the name of the predecessor of the plaintiff as a tenant of the disputed property.
2. In so far as the first of the grounds is concerned, it has been argued that the two reasons assigned by the Court below for exclusion of the perpetual lease of the 21st December 1874, are erroneous in law. In our opinion, this contention is well founded. The Subordinate Judge, in agreement with the primary Court, has held that as the plaintiff had failed to put in process-fee for the issue of warrant against the person called upon to produce the original of this lease, he was debarred by reason of his own default from using the certified copy as secondary evidence. The Subordinate Judge has further held that even if the copy was received in evidence, it would not be of any assistance to the plaintiff, because the recitals of the boundaries in the schedule to that document are not admissible in evidence against the plaintiff who was no party to the transaction.
3. In so far as the first reason is concerned it is not disputed that the plaintiff had caused summonses to be served upon the witness who had custody of the original and was called upon to produce it. The witness, however, did not comply with the order of the Court. The plaintiff subsequently applied for the issue of a warrant against the witness but no process-fee was paid for service of the writ. This does not, in our opinion, amount to default on the part of the plaintiff. As was pointed out by this Court in the case of Bhagabat Prasad Singh v. King Emperor 14 C.L.J. 120 : 11 Ind. Cas. 794 under Section 130 of the Indian Evidence Act, no witness who is not a party to a suit can be compelled to produce his title-deed to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to incriminate him, unless he has agreed in writing to produce them with the person seeking the production of such deed or some person through whom he claims. It cannot be disputed that the lessee under the perpetual lease of the 21st December 1874 was entitled to urge that the document was his title-deed, and that he was not bound to produce the original except in the event contemplated by Section 130 of the Indian Evidence Act. It is not alleged that the lessee had agreed with the plaintiff in writing to produce the original in Court. Consequently, if, after service of summons upon him, he did not pro duce the original, the plaintiff became entitled to use the certified copy as secondary evidence. The first reason assigned by the Subordinate Judge in support of his order of rejection of the document cannot, therefore be supported.
4. In so far as the second reason is concerned it has been contended by the learned Vakil for the defendants-respondents that as they were not parties to the transaction evidenced by the lease, no recital in that document could be used in evidence against them. In support of this proposition, reliance has been placed upon the cases of Brajeshware v. Budhanudi 6 C. 268 : 7 C.L.R. 6 and Manohar Singh v. Sumirta Kuar 17 A. 428. These cases, however, are clearly distinguishable, as no question of the admissibility of any document in evidence arose for consideration in either of these cases. What was ruled was that the recital in a document as to the payment of consideration was not binding upon a person other than the executant. Bisheswar v. Harbans 6 C.L.J. 659 : 3 M.L.T. 38. If the document was sought to be used against the executant who denied receipt of consideration, the burden, prima facie, would lie upon him to explain how he had executed a document containing such recital. In the case before us, no such question arises. The question to be decided is whether the statement by the grantee in the schedule to the lease, that on the boundary of the land demised was the holding of the predecessor of the present plaintiff can be used in evidence against the defendants, although they were not parties to the transaction evidenced by that document; in our opinion the document is admissible in evidence on the principle explained by this Court on the case of Abdulla v. Kunja Behari Lal 12 Ind. Cas. 149 : 14 C.L.J. 467. In fact, the case before us is stronger than the case then before the Court, because it is alleged here that the statement was made by the landlord of the plaintiff who might be expected to know who was in occupation of the land as his tenant. The case is, therefore, completely covered by the decisions in the cases of Ningawa v. Bharmappa 23 B. 63; Abdul Aziz Molla v. Ebrnhim Molla 31 C. 965 and Burha Mandari v. Megh Nath 2 C.L.J. 4n. The ground assigned by the Subordinate Judge for the rejection of this piece of documentary evidence cannot be upheld. The first ground urged on behalf of the appellant must, therefore, prevail.
5. In so far as the second ground is concerned, it has been contended that the Subordinate Judge has misapplied the provisions of Section 90 of the Indian Evidence Act, in respect of the document alleged to be the first mortgage executed be the predecessor-in-interest of the plaintiff. It cannot be disputed that the Subordinate Judge was bound to assign reasons for the view he took as to the applicability of the provisions of Section 90 and if his reasons are erroneous in law, it is competent to this Court to interfere in second appeal Trailokia v. Shurno 11 C. 539 Under Section 90 it h not obligatory upon a Court to assume that the document produced is genuine merely because it purports to be thirty years old and is produced from proper custody. The Court has a discretion in the matter but that discretion must be judiciously exercised in the manner explained by this Court in the case of Srinath Patra v. Kaloda Prasad Banerjie 2 C.L.J. 592. The Court has first to consider whether, in the circumstances of the particular case, the document has been produced from custody which may be deemed proper. When this is found in favour of the party who has produced the document the question arises whether the Court should, in the exercise of its discretion vested in it, raise the presumption of genuineness with regard to the document. If, to take one instance as pointed out by their Lordships of the Judicial Committee in Shafiq-un-nissa v. Shaban Ali Khan 26 A. 581 at p. 586 : 9 C.W.N. 105 it is established that there is internal evidence to throw doubt upon the genuineness of the document, and if the recitals therein contained are inconsistent with facts admitted or proved beyond the possibility of dispute, the Court may call upon the party to produce evidence of execution. In the case before us, this procedure does not appear to have been followed. The Subordinate Judge is, moreover, in error when he states that the document has not been produced from proper custody; the case for the plaintiff is that the mortgage has been redeemed. If that story is believed, the document would properly be found in the custody of the mortgagor. We are of opinion, therefore, that the Subordinate Judge has not dealt with this part of the case properly and it is necessary for him to reconsider the question in view of the principle explained by this Court in the case of Srinath Patra v. Kolada Prosad Baneriee 2 C.L.J. 592. He will first consider whether the two elements mentioned in Section 90 have been established; if he holds that they have not been proved to his satisfaction, he will call upon the plaintiff to give evidence of execution, The second ground will, therefore, prevail.
6. In so far as the third ground is concerned, it has been argued that the Road Cess Return is not admissible in evidence under Section 95 of the Bengal Cess Act, 1880. That section, however, has no application to the circumstances of the present case. The maker of the document does not seek to use it as evidence in his favour. It is sought to be used in evidence by one stranger against another. The real question is, whether the absence of the name of the predecessors of the plaintiff from the category of tenants mentioned in the Road Cess Return is evidence against him. In support of the contention that it is cot evidence, reliance may possibly be placed upon the cases of Queen-Empress v. Grees Chunder Banerjee 10 C. 1024 and In the matter of Juggun Lal 7 C.L.R. 356. These cases, however, if they decide that the absence of a recital in a document is not admissible in evidence at all under any Section of the Indian Evidence Act, cannot be accepted as giving a correct exposition of the law, As a matter of fact, in neither of these cases was the Question raised in this broad form. What was argued was that Section 34 did not make the document admissible for the purposes stated. It was pointed out, however, in the case of Sagurmull v. Manraj 4 C.W.N. ccvii (short note) that under Sections 9 and 11 of the Indian Evidence Act, the absence of recital in a document may be used in evidence as against the person who is not a party to that document; and the observation of Lord Robertson in the case of Ram Pershad Singh v. Lakhpat Koer 30 C. 231 at p. 247 must be taken to be restricted in the same manner. We are of opinion, therefore, that the Road Cess Return was admissible in evidence. What weight ought to be attached to the circumstance, however, is a matter entirely for the Court of first instance to consider. The third ground urged by the appellant must, therefore, be overruled.
7. The result is, that this appeal is allowed and the decrees of the Courts below discharged. The case will be remanded to the Court of first instance for re-trial. The certified copy of the lease of the 21st December 1374 will be received in evidence and the Court will also consider, with reference to section. 90 of the Indian Evidence Act, whether what purports to be a first mortgage-deed in respect of this land by the predecessor of the plaintiff, is or is not genuine. Both the parties will be at liberty to adduce fresh evidence, and all questions which arise upon the pleadings and the issues, will be open for consideration. The costs incurred up to the present stage will abide the result.