Dinanath Rai vs Rama Rai

Ross, J.—This was a suit for redemption of some land which had been mortgaged by the grandfather of the plaintiff to the grandfather of the defendant in 1891. The defence was that the land was the ancestral kasht land of the Defendant and that he was in possession as zarpeshgidar. He denied that there had been any peshgi money or that he had ever been in possession by virtue of any zerpeshgi deed. The suit was decreed by the Subordinate Judge on appeal.

Three points have been taken in second appeal. In the first place it is contended that the trial Court erred in admitting in evidence a certified copy of the mortgage bond, on the ground that no notice had been given to the defendant to produce the original as required by Section 66 of the Evidence Act. I doubt whether this point is open in second appeal as there is no reference to it in the judgment of the lower appellate Court. But in any case there is a proviso to Section 66 that no notice shall be required in any case in which the Court thinks fit to dispense with it; and in the present case it must be taken that the Court dispensed with the notice for the sufficient reason that the defendant denied that there was or ever had been a mortgage deed at all. In view of the pleadings it was idle for the plaintiff to give notice to the defendant to produce a document the existence of which he denied.

The learned advocate for the appellant referred to the decision in Maung Po Ni v. Ma Shwe Kyi AIR 1925 Rang 7 which to some extent supports his contention. But that decision, so far as the present point is concerned, seems to be based on a decision of the Judicial Commissioner which is not an authority for this Court. Two decisions of the Judicial Committee were also quoted [Bhubaneshwari Debi v. Harisaran Sarama Moitra (1881) 6 Cal 720 and Krishna kishori Chaodhrani v. Kishorilal Roy (1887) 14 Cal 486,] in which secondary evidence was rejected where the parties failed to account for the nonproduction of the original. But these decisions are not in point. The only question is whether this was a proper case for the Court to dispense with notice. In my opinion in view of the pleadings, notice was altogether unnecessary and was properly dispensed with.

The second contention was that as the mortgage was redeemable at the end of Jeth each year and according to the plaintiff''s case, tender way made in Baisakh, the tender was not valid and, therefore, in the absence of valid, tender no suit for redemption WORLD. The learned advocate for the appellant relied on the decision in Mahomed Ali v. Baldeo pande AIR 916 All 91 which does support that proposition. But that decision has been clearly overruled by the Full Bench of the Allahabad High Court in Raghunandan Rai Vs. Raghunandan Pande and Others, , where that case among others is referred to and it is pointed out that; Section 60 of the Transfer of Property Act only defines the right to redeem and does not lay down that tender of the mortgage money is a condition precedent to the institution of a suit for redumption. I fail to see how tender can be necessary before a suit can be instituted which is itself necessary in order that the amount payable by the plaintiff for redemption may itself be ascertained.

The third point taken was that as the defendant was recorded as kashtkar in the record of-rights and in the batwara proceedings to the knowledge of the plaintiff''s ancestor, he must he taken to have acquired title by adverse possession This argument that a, mortgagee can acquire a title by adverse possession against his mortgagor runs counter to the elementary principle governing mortgages. The appeal must be dismissed with costs.

Macpherson, J.

I agree.