JUDGMENT
Mukerji, J.
1. This appeal arises out of a suit for sale based on a simple mortgage bond. The bond was executed by Defendants Nos. 1 to 6 or their predecessors in favour of the plaintiff’s father on the 21st June 1885. It was an instalment mortgage bond by which the executants promised to pay 191 maps of paddy at the rate of 7 maps per annum from the years 1293 to 1316 B.S. and the balance of 5 maps in the year 1317 B.S. The bond stipulated that in default of the payment of any one instalment the mortgagee would be entitled forthwith to realize the whole of the paddy then remaining due with interest at a certain rate. Subsequent to the execution of this bond and on the 7th June 1901, the mortgagors executed another mortgage bond in respect of the same mortgaged properties in favour of the plaintiffs’ mother the plaintiffs’ mother instituted a suit on the basis of this latter bond, obtained a decree and in execution of the decree the mortgaged properties were put up to sale and purchased by the Defendant No. 7 the plaintiffs’ case is that the instalments due for 1316 and 1317 were not paid and in the present suit the plaintiffs sought to enforce the mortgage by sale of the mortgaged properties for the said dues. The suit has been decreed by both the Courts below and the Defendants Nos. 1 to 5 and 7 have preferred the present appeal.
2. The first contention urged oh behalf of the appellants is to the effect that the plaintiffs are estopped from enforcing their mortgage in the present suit because this mortgage was not set out in the suit instituted by the plaintiffs’ mother against the mortgagors. It is said that the plaintiffs’ father conducted the suit on behalf of the plaintiffs’ mother, and by reason of the provisions of Order 34, Rule 12, Civil P.C., it was incumbent upon the plaintiffs’ mother in that suit to set out the mortgage upon which the present suit has been instituted, and that inasmuch as this mortgage was not set out in that suit the plaintiffs are estopped from putting forward their present claim. The finding of the Courts below is to the effect that the plaintiffs’ mother was not the benamidar of the plaintiffs’ father. That was a suit in which the plaintiffs’ father was not a party. It was not obligatory upon the plaintiffs’ mother in that suit to have set out this mortgage. Unless it could be shown on behalf of the appellants that there was a duty in the plaintiffs’ mother to have set out this mortgage either herself or through her agent who looked after the proceedings in that suit on her behalf the question of estoppel does not really arise.
3. A further argument was sought to be advanced with regard to this matter based on the lines upon which para 7 of the written statement of the defendants was worded, namely, it was allege 1 that by reason of the conduct of the plaintiffs’ father in connexion with the suit to which I have referred the Defendant No. 7 was misled into purchasing the properties; in other words, that plaintiffs’ father who though not a party to those proceedings was actually doing everything therein on behalf of his wife and he did not mention either in the proceedings or in the sale porclamation that there was this prior mortgage, and by reason of his conduct in this respect the Defendant No. 7 was misled and he purchased under the idea that there was no such mortgage. This line of defence though foreshadowed in the written statement does not appear to have been developed in any of the Courts below and indeed there was no materials upon the record upon which the appellants can urge this contention.
4. The second ground urged is to the effect that the deed upon which the suit has been instituted has not been legally proved. This contention is based upon the provisions of Section 68 and Section 90 of the Evidence Act. It is urged on behalf of the appellants that the provisions of Section 68, which are mandatory, have been overlooked and the provisions of Section 90 have been misapplied. The bond in question bears the signatures of nine attesting witnesses all of whom, upon the findings of the Courts below, are dead with the exception of one, namely, one Baikunta Nath Saha. It was alleged on behalf of the plaintiffs that this witness who was alive was hostile to them, and it appears from the findings of the learned Munsif that an attempt was made on behalf of the plaintiffs to produce the witness before the Court but that attempt had failed. The learned Judge does not appear to have recorded any finding with regard to the endeavours alleged to have been made by the plaintiffs to secure the attendance of this witness. He has, however, observed that the witness was hostile to the plaintiff’s. The Courts below in this state of the circumstances relied upon the presumption contained in Section 90 of the Evidence Act and has held that the document being more than 30 years old it should be presumed that it was duly executed by the executant and duly attested by the attesting witnesses.
5. So far as the contention based upon Section 68 of the Evidence Act is concerned reference has been made to a decision of this Court in the case of Shib Chandra Singha v. Gour Chandra Paul A.I.R. 1922 Cal. 160. This decision, however, is of no assistance to the appellants inasmuch as all that has been said therein is that the section is imperative and it is not only applicable to cases where the attested instrument is the ground of action but also to cases where it is used in evidence for collateral purposes. No question arises in. the present case as to whether the document may be used for collateral purposes or not. The wording of Section 68, however, is very clear and the provisions of the section seem to be mandatory. The section does not appear to be controlled by Section 90 of the Evidence Act at all. The mere fact that the only surviving attest-ting witness is considered hostile by the party does not relieve him from the duty of examining him as a witness and this has been held in the case of Tula Singh v. Gopal Singh [1917] 1 P.L.J. 369. Nor is it enough that summonses and warrants had been issued upon the witness and the witness had failed to appear; and it has been so held by this Court in the case of Piyari Sundari Dasi v. Badha Krishna Datta [1922] 27 C.W.N. 60 (Note). Merely taking out summons and warrants is not enough to comply with the provisions of Section 68 but the processes of the Court such as are mentioned in Order 16, Rule 10, Civil P.C., have all got to be exhausted. Upon the findings of the learned Judge to which I have referred it does not appear that such processes were exhausted in the present case, and prima facie it would appear that on this ground the appellants are entitled to a remand. An affidavit has been put forward before us on behalf of the respondents in which it has been stated that the said witness Baikuntha Nath Saha is now dead. The appellants urge that no notice of this affidavit was given to them and, therefore, they are not in a position to contradict the statement contained in that affidavit. As matters stand, therefore, the appellants seem to me entitled to remand. But in view of the opinion which I am about to express upon the other grounds that have been urged in support of this appeal I do not think that any useful purpose will be served by making an order for remand.
6. As regards the contention based upon Section 90 of the Evidence Act the argument in substance is that the presumption contained in that section should not be given effect to in a case where the document is the basis of the title of the party who has sought to use it in evidence. In support of this contention reliance has been placed upon the decision of this Court in the case of Shy am Lai Ghose v. Rameswari Basu [1916] 23 C.L.J. 82. In the judgment of this Court in that case in which the question arose as to whether a Will can be proved by means of the presumption under Section 90 of the Evidence Act it was thus said:
If the rule were applicable to a Probate Court it would not be necessary to prove Wills, executed 30 years before the death of the testator…. We are unable to hold, therefore, that the rule applies to proof of a Will in the probate Court. Besides, Section 90 of the Evidence Act merely says, that in the case of a document 30 years old the Court may raise resumptions mentioned in it, not that it must do so. Where the genuineness of the document is for any reason doubtful it is open to the Court to reject it, however ancient it may be.
7. The observation of the learned Judges in that case to the effect that the rule does not apply to proof of Will in a Probate Court, in my opinion, laid down more a rule of expediency than a hard and fast rule of law. The presumption contained in Section 90 of the Evidence Act, no doubt, has always got to be applied with a good deal of caution; but I am unable, in a case in which the presumption legitimately arises under that section, to hold that merely because it is a Will or a document upon which the title of the party rests It is not open to the Court to apply that presumption provided, of course, that the case is a fit and proper one for the application of the presumption. No authority has been cited before us which goes the : length of asserting this proposition that this presumption is not applicable to the case of a document which forms the foundation of the party’s title. On the other hand there are numerous cases in the books in which the presumption has been applied to cases of such documents. In the case of Shafiq-un-nissa v. Shaban Ali Khan [1904] 26 All. 581 the Judicial Committee had occasion to consider the provisions of Section 90 of the Evidence Act and their Lordships then pointed out that “what is meant by the Court may presume a document to be genuine” is shown by Section 4 of the Act which is in these terms:
Whenever it is provided by this Act that the Court may presume a fact it may either record such fact as proved, unless and until it is disproved or may call for proof of it.
8. In several decisions of this Court amongst which reference may be made to the cases of Trailokia Nath Nundi v. Shurno Churn Goni [1885] 11 Cal. 539 and Govinda Hozra v. Protap Narain Mukhopadhya [1902] 29 Cal. 740 this presumption has been applied to documents upon which the title of one or other of the parties rested and it would be pertinent to quote the observations of Mr. Justice Hill in the last of those two cases. He observed thus in that case:
If there are reasonable grounds for suspecting its genuineness, and the party relying upon it fails to satisfy the Court of its due execution there is an end of it. But if no such grouuds exist and it satisfies the conditions prescribed by Section 90 of the Indian Evidence Act, then proof of execution is dispensed with and it is to be dealt with on the same footing as any other genuine instrument…. When the genuineness of a document purporting to be an ancient document is put in issue, it appears to have been sometimes thought that any presumption in its favour is thereby excluded. But this would be to deprive the party producing it of the benefit of the presumption precisely in the circumstances in which he most stands in need of its aid.
9. I am, therefore, of opinion that regardless of the question as to whether the document in question forms the foundation of the party’s right or whether it was sought to be used as a piece of evidence the Court may, in a proper case rely upon the presumption contained in Section 90 of the evidence Act. Having regard to the facts of the present case to which I have already referred it cannot be said that the Courts below were wrong in relying upon the said presumption.
10. The third and fourth grounds urged on behalf of the appellants may be taken up together, for they are really contentions which have been put forward on behalf of the Defendant No. 7. It has been said that a proper issue should have been framed as to whether Defendant No. 7 was the benamidar for the other defendants, that the Court below was wrong in excluding evidence which had been adduced on behalf of Defendant No. 7 in order to prove that he was not the benamidar; and that the said Defendant No. 7 had acquired a title by the adverse possession in respect of the mortgaged properties which would be sufficient to enable him to resist the plaintiffs’ claim. I am of opinion that the question as to whether the Defendant No. 7 is the benamidar for the other defendants is a question of very minor importance in the present case. I do not see that any attempt was made on behalf of the Defendant No. 7 at the time when the issues were framed to raise a distinct issue on this question and having regard to the findings of the learned Judge to the effect that it was an admitted fact that notwithstanding the purchase by the Defendant No. 7 the other defendants are still in possession of the mortgaged properties. I am unable to find that there is any valid ground of complaint on the part of Defendant No. 7 in the present appeal.
11. The next ground relates to the question of limitation. It is based upon the supposition that Article 75 of the Limitation Act applies to the case and that the plaintiffs must take recourse to Section 20 of the Limitation Act to save limitation. For the plaintiffs, in my opinion, it is not necessary to rely at all upon Section 20. If they can show that the instalments that were overdue had been really paid by the defendants and accepted by them and that there was waiver by such payment they are perfectly competent to sue for recovery of the instalments due for the years 1816 and 1317. This payment may be proved in the same way as any other fact to be proved in the case. In this the plaintiffs have succeeded according to the findings of the learned Judge. The learned Judge has observed in his judgment that
There is no good reason to discredit the evidence of payment of overdue instalments. I accept the evidence of payments and hold that both parties waived the default.
12. Independently, therefore, of the provisions of Section 20 of the Limitation Act and the endorsements of payments which are to be found on the back of the document the payments of the overdue instalments and the receipts thereof by the plaintiffs have been proved in the case. This contention also of the appellants, therefore, fails.
13. The last contention urged is to the effect that by reason of the provisions of the Usurious Loans Act it should be held that the transaction was one which should not be given effect to by the Court. This argument overlooks the provisions of Section 2 of the Act which makes that Act inapplicable to the transaction in question.
14. The result then is that the appellants are not entitled to succeed upon any of their contentions excepting the one based upon Section 68 of the Act to which I have referred. Now the position is this. If the case goes back and if the witness who has not been examined is still alive he will be examined in this case. If he gives evidence against the plaintiffs the Court will be entitled to rely upon Section 90 of the Evidence Act because the plaintiffs’ case all along has been that the witness is hostile. If he deposes in favour of the plaintiffs the plaintiffs’ case will gain additional strength. The result, therefore, would be that no difference would arise by reason of the examination of the said witness if he is alive. In the result therefore, in my opinion, the appeal fails, and must be dismissed with costs.
Greaves, J.
15. I agree.
