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Civil Appeal No. K‑23 of 1965, decided on 27th February 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 13th February 1962, in Second Appeal No. 156 of 1961).

(a) Constitution of Pakistan (1962), Art. 58(3)‑Leave to appeal‑Granted by Supreme Court because some questions raised in second appeal before High Court were "substantial questions. of law" which could have entitled appellants to have their appeal admitted and heard on merits, instead of being dismissed in limine under Civil Procedure Code (V of 1908), O. XLI, r. 11.

(b) Evidence Act (I of 1872), S. 90‑Document thirty years old‑Executed on genuine stamp paper of relevant period and not disclosing any internal evidence of forgery‑Court entitled to presume that document was genuine.

(e) Transfer of Property Act (IV of 1882), S. 60‑Redemption of. mortgage‑Simple mortgage‑Subsequent agreements whereby mortgagee agrees to keep possession of mortgaged land as a "Munshi" of the owners in order to clear mortgage debt‑Period for which such possession was to continue progressively extended by such agreements‑Agreements, held, constituted a postpone ment of period of redemption of a subsisting mortgage.

(d) Transfer of Property Act (IV of 1882), S. 60‑Mortgagors led to believe that mortgage‑debt was still due and mortgagee thus continuing in possession‑Period of such possession extended by mortgagee from time to time‑Right to redeem accrued to mort gagors only after expiry of such extended period‑Mortgagee's possession not adverse possession.

(e) Transfer of Property Act (IV of 1882), S. 60‑Redemption of mortgage‑Right to redeem must be extinguished in one of the manners prescribed by S. 60‑Right alleged to be extinguished by res judicata in view o,/ a previous suit for redemption dismissed in default‑Decree in such suit must run strictly in accordance with forms prescribed‑Unless right so extinguished second suit for redemption not barred if brought within period of limitation‑Civil Procedure Code (V of 1908), S. ll, t . IX, r. 9.

The right of redemption, which is an incident of a subsisting mortgage, subsists so long as the mortgage itself subsists. It can only be extinguished as provided by section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the forms prescribed for the purpose and unless the right of redemption is so extinguished a second suit for redemp tion if filed within the period of limitation will not be barred.

The decree in the previous suit was neither in the form prescribed for a mortgage decree nor did it purport to extinguish the right of redemption. The right of redemption being a continuing right cannot also be barred by Order IX, rule 9, C. P. C. if the second suit is brought within the period of limitation.

Raghunath Singh v. Hensraj Kunwar 611 A 362 and Thata China Subba Rao v. Malta Palli Aaju A I R 1950 F C 1 ref. j

Thakur Shankar Baksh v. Daya Shankar and others 15 I A 66 considered.

(f) Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(3) read with S. 41‑Objection that property in dispute in suit was evacuee not raised in written statement, nor in memorandum of appeal‑No final order produced that custodian, or Land Communion under West Paki4lan Land Reforms Regula tion, 1959, had treated such property as evacuee or resumed by Commission‑Objection, held to be without foundation‑Title in property never passing to person who subsequently became evacuee‑‑Property not evacuee.

Mian Mahmud All, Senior Advocate Supreme Court (Chandani, Advocate with him) instructed by Mohammad Ali

Sayeed, Attorney for Appellants.

Respondent No. 1 in person.

Sher Alf Abidin, Advocate Supreme Court instructed by Aziz

M. Dastgir, Attorney for Respondent No. 4.

Respondents Nos. 5‑8: Ex paste.

Dates of hearing: 30th, 31st January and 1st February 1968.

JUDGEMENT

HAMOODUR RAHMAN, J

.‑This appeal by special leave arises out of the judgment and order of a Division Bench of the High Court of West Pakistan at Karachi, summarily dismissing a second appeal under Order XLI, rule 2 of the Code of Civil Procedure.

The second appeal itself arose out of a suit filed by the first four respondents herein for the redemption of a usufructuary mortgage in respect of some 591 acres and 15 ghuntas of land covering some 90 survey numbers in Deh Sadri, Tapo Odero Lai, Taluka Hala, District Hyderabad, and for a declaration that the defendants in the suit (predecessors‑in‑interest of appellant No. 1 and respondents Nos. 7 and 8, appellant No. 2

and respondents Nos. 5 and 6) had no valid right, title or interest in the lands in dispute, that certain decrees obtained by them on the 21st of July 1896 and 26th of February 1908, respectively anal certain deeds of transfer in respect of the said lans were illegal, ineffective and inoperative in law acid in no way affected the rights of the plaintiffs to them.

The suit was first filed on the 23rd of October 1951 but the plaint subsequently amended on the 31st of October 1952. According to the plaint, the lands which were their ancestral property originally consisted of 18 undetermined survey numbers in Deh Khidn (now Deh Sadri). They were remeasured during the operations, carried out by Government in 1883 and 1884 and were split up into 90 small survey numbers and entered in the respective Khatas of the share‑holders. But in the Record of‑Rights prepared in 1885, 65 survey numbers were entered in the joint name of Abdul Alim, son of Parial Khidri and Dino son of Niamo in the shares of 0‑10‑8 and 0‑5‑4 respectively and the remaining 25 survey numbers were entered in the name of Weedhal son of Kabool Khidri. The said Dino had, it was said, purchased a 1 /3rd share in the lands for Rs. 800 on the 8th January 1885.

Before this, however, one Gianchand son of Chatomal (grandfather of appellant No. 1) had on the 5th April 1882 obtained a simple mortgage over these lands under two registered deeds of mortgage executed by Abdul Alim and Weedhal respectively to secure loans of Rs. 775 and Rs. 575 advanced to Abdul Alim and Weedhal respectively.

Abdul Alim repaid this amount of Rs. 775 and obtained a full discharge of his debt under a receipt (Exh. 126) granted by Gianchand on the 7th April 1886, but the mortgage deed was not returned to them on the ground that it had been lost.

Weedhal, the grandfather of the plaintiffs Nos. 2 and 3 (now respondents Nos. 2 and 3), on the other hand, could not repay the amount. Hence on the 23rd of July 1887, he executed another mortgage deed 'again mortgaging his 0‑8‑0 share in the entire lands but this time with possession in favour of Gianchand for the consideration of Rs. 1,000 for a period of 5 years.

The mortgage deed (Exh. 119) shows that this consideration was made up of the mortgage debt of Rs. 832 (being the principal amount of the first mortgage of 1882 and the interest accrued thereon) and a further sum of Rs. 168 added by way of interest thus making a total of Rs. 1,000.

This mortgage deed recited that the land belonged, in equal shares, to the mortgagor and Abdul Alim son of Parial Khtdri, although in the Record‑of‑Rights, some of the survey numbers had been entered in the name of mortgagor alone and some in the joint names of Abdul Alim and Dino. The said Dino, it Was stated, had no right in or concern with these numbers. The lands were to remain in the possession of the mortgagee for a period of 5 years although both the mortgagor and the mortgagee would jointly cultivate them. The mortgagee would, however, make all recoveries from those who had been given lands In Batal and would Incur all neccessary expenditures but out the mortgagor would only be given a portion of the produce for his maintenance. The balance would be alitisted agiioq

the loan and interest thereon at 2 Y. per mencem. The mortgagee deed further provide that if after the period of 5 years there still remained anything due from the mortgagor then the sire would be paid by the latter to the mortgagee by selling his half share in the said lands.

The Schedule appended to the deed clearly showed that the lands being mortgaged consisted of an undivided 0‑8‑0 shares in some 88 survey numbers measuring 591.5 acres. On the same date i.e. 23rd July 1887 Gianchand also got Parial, a son of Abdul Alim. to execute anther mortgage in his favour in respect of the entire lands of Abdul Alim although on the 9th November 1886 Abdul Alim had apprehending death executed a deed of partition dividing his properties amongst his heirs and made provision for the maintenance of his widow and his three sons of whom Parial alone was a major but was said to be insane. Abdul Alim died in the same year. Thereafter Weedhal too paid un the entire principal amount of the loan to Gianchand on the 4th December 1889 and obtained receipt (Exh. 120) for it. The mortgage deed was again not returned on the ground that it was lost. But before Weedhal could retake nossession from Gianchand he too died on the 22^nd February 1890, leaving behind a minor son, a daughter and a widow.

Gianchand himself died soon after in 1890 leaving behind two sons Dhanroopdas and Thaukardas, who was then a minor. Dhanroopdas. it is said, taking advantage of the helolessness of the heirs of Weedhal continued to remain in possession of the property under the pretext that the mortgage debt was still due and that the same had swelled up to Rs. 14,000 or Rs. 15,000 along with interest.

To show his bona fides, it is further alleged, Dhanroopdas actually executed an agreement on the 16th June 1894 (Exh. 124) in favour of the widow of Weedhal, Mst. Niamat, reciting that he was in possession of the lands to look after the maintenance of its produce "as a Munshi in lieu of the debt due from Weedhal" and would be so possessing the land until Kabool, the minor son of Weedhal attained the age of puberty. During this time, however, the owners would have no power to eject him from the lands. This, it was declared, was being done as Allah Bachayo, the brother of Weedhal was unnecessarily raising objections and disputes although he had no concern with these lands.

This document also recited that Dhanroopdas had in the same manner obtained possession of these lands from Mst. Haleema, widow of Dino and Mst. Darya Khatoon, widow of Abdul Alim. The lands mentioned in this agreement again covered all the 88 survey numbers, mentioned in the mortgage deed.

The agreement in favour of Mst. Darya Khatoon was executed on the 24th December 1890 (Exh. 128). This also recited that some 8 or 9 years before, Abdul Alim had mortgaged his half share in all the 90 survey numbers with Gianchand for Rs. 775 and Weedhal had mortgaged the other half share for Rs. 575. The mortgage debts had not been cleared when Abdul Alim died suddenly some 4 or 5 years ago leaving as his heirs, his widow Darya Khatoon, a daughter and three sons of whom the eldest named Parial, was of unsound mind.

Although in this agreement Dhanroopdas declared that he was in possession of the lands in the capacity of Munshi but it appears that his right of possession was to continue until the mortgage debt was paid off and only on the re‑payment of the entire debt he would be liable to restore possession of the lands and "get the Khatas mutated in the names of respective owners in official records." No indication, however, was given in this document as to the amount outstanding but this document contained a recital to the effect that Weedhal had also died some 10 or 11 months before, leaving his widow Mst. Niamat and a minor son Kabool and that Dhanroopdas was also looking after their properties as Manager or Muhshi.

In this it was also admitted that the mortgage debt of Abdul Alim had been repaid in full on the 7th of April 1886, and a receipt (Exh. 126) granted therefor by Gianchand.

The agreement (Exh. 130) in favour of Mst. Haleema widow of Dino, was executed on the 24th of November 1894. It recited that Weedhal and Abdul Alim had mortgaged the share of Dino as well with Gianchand and since the mortgage debt had not yet been cleared up the property was still in Dhanroopdas's possession, who was looking after the same in the capacity of a "Munshi" and would be continuing to do so as Haleema's brother, Muhammad Rahim, being employed in the Police Department was unable to look after her interests and his sons Muhammad Ahmad and Jaffar were still minors. He would continue to manage the properties and would prevent Allah Bachayo, the brother of Weedhal, from interfering with them until the minor sons of Muhammad Rahim obtained majority. The lands would then be returned to them after adjusting the debts. This agreement did not mention as to when Dino had died but the Schedule of properties, appended to this document, included all the 90 survey numbers.

In this manner Dhanroopdas, it is said, managed to retain possession of the entire lands and continued to enjoy the fruits thereof on the pretext that the entire lands were mortgaged with his father and the mortgage debts were still outstanding.

In spite of the agreements, executed in favour of Darya Khatoon on the 24th of December'1890, the said Dhanroopdas, it is alleged, got a deed of sale of the entire 16 annas share of Abdul Alim in the lands executed by his insane son, Parial, who had even otherwise no authority to sell the entire lands of Abdul Alim.

The debt for which this sale purported to be made was alleged to be due in respect of a mortgage deed executed by Parial on the 23rd July 1887. No copy of this deed has been filed but the deed of sale (Exh. lag) covers some 51 survey numbers and six survey numbers are given up as having become "Nobat" i.e. resumed by Government. Although this document appears to have been executed on the 21st April 1891, yet it is witnessed by Weedhal son of Kabool, who had according to the plaintiff's died on the 22nd February 1890.

Notwithstanding this deed Dhanroopdas on behalf of himself and his minor brother Thakurdas, sons of Gianchand procured a decree (Exh. 260) from a Civil Court at Hala making an award made by one Issardass, an Advocate, on the 9th July 1892, a rule of Court. In this suit neither the widow nor the daughter of Abdul Alim were made parties but only the sons of Abdul Alim and one Akhund Noor Muhammad were made parties upon the allegation that Ali Muhammad and Amin Muhammad, two of the sons of Abdul Alim, had sold their shares to the said Akhund Noor Muhammad with the consent of their mother and sister by a deed of sale (Exh. 193) executed on the 29th April 1891. By this award except for 4 survey numbers, namely, Nos. 2.31, 232, 238 and 239, which were given to Amin Muhammad and Akhund Noor Muhammad, the rest of the survey numbers recorded in the name of Alim were awarded to the sons of Gianchand.

Similarly, on the 3rd June 1896, Dhanroopdas alone obtained an award against Allah Bachayo, Mst. Niamat and Kabool, awarding the entire 16 annas share of Weedhal in the 26 survey numbers recorded in his name for the sum of Rs. 3,000. This award was made a rule of Court on the 21st of July 1896 in Suit No. 1887 of 1896 (Exh. 197).

On the same day another decree was also obtained making another award by the same arbitrator, Munshi Des Raj, a rule of Court in another suit, No. 1888 of 1896 in respect of 0‑8‑0 share of Weedhal in all of 60 survey numbers in lieu of Rs. 5,000. Survey Nos. 268 and 269 were, however, given to the defendants, who were only Allah Bachayo, Mst. Niamat and Kabool. The daughter was left out.

Notwithstanding these decrees, on the 28th July 1896, we find that Dhanroopdas and Allah Bachayo,again jointly executed another agreement (Exh. 133) in favour of Mst. Haleema, widow of Dino and Mst. Niamat, widow of Weedhal reiterating that they were managing their properties as their Munshies and as "amanat". This document also contained an admission to the effect that Parial was of unsound mind.

Thereafter on the 14th August 1903, Dhanroopdas executed another agreement (Exh. 134) in favour of Parial and Amin Muhammad, sons of Abdul Alim reciting that in 1887 Parial had executed a mortgage of these lands with Gianchand claiming that he held 0‑10‑8 shares in these lands, and the said amount had since swelled to a very large sum with the interest accrued thereon. Dhanroopdas would, therefore, remain in possession of these lands up to January 19, 1916, and no one will have any right to eject him therefrom till that time.

In the meantime, Dhanroopdas had also obtained a usufructuary mortgage (Exb. 261) on the 17th of October 1899 in respect of survey Nos. 268 and 269 from Allah Bachayo for the loan of a sum of Rs. 236 only with interest at the rate Ha of 2 % per month. These two survey numbers, it is pointed R' out, were given to Allah Bachayo, Mst. Niamat and Kabool by the decree in Suit No. 1888 of 1896 passed on 21‑7‑1896. Kabool was even then a minor.

In spite of these transactions Dhanroopdas again obtained a decree in terms of an award in Suit No. 4 of 1908 from the Court of Sub‑Judge, Hyderabad against Kabool son of Weedhal, Mst. Sahibi, aunt of Kabool and Parial son of Abdul Aleem whereby it was declared that a sum of Rs. 1,000 was still due and owing to Dhanroopdas from Kabool and Parial respectively and that in lieu of the said amounts the debtors had surrendered their right, title and interest in the lands covered by the decrees in Suits Nos. 1887 and 1888 of 1896, and that the same were again confirmed. But survey Nos. 268 and 152 were awarded to Kabool subject to the condition that they would remain mortgaged with Dhanroopdas as security against any other dispute being raised against the title of the plaintiffs in that suit.

It is not known how survey No. 152 came to be substituted for survey No. 269. The decree in Suit No. 1888 of 1896 gave survey Nos. 268 and 269 to Kabool, his mother and uncle.

Although by this decree the right, title and interest of the heirs of Weedhal were extinguished yet on the 24th June 1908, Dhanroopdas again, it appears, executed an agreement (Exh. 141) in favour of Kabool son of Weedhal, Parial, Amin Muhammad sons of Abdul Aleem and one Muhammad son of Muhammad Rahim, reciting that the mortgage debts created by Abdul Aleem (sic) and Weedhal in 1887 were still outstanding and for the realisation thereof the survey numbers mentioned in the deed will continue to remain in his possession "according to the previous mortgage deed up to the years 1915‑16 till the debts are cleared up." The amount of the debt together with interest according to this agreement, then stood at Rs. 8,000. This deed covered all the 90 survey numbers and clearly acknowledged that though these survey numbers had "due to unknown reasons" been recorded in the name of Dhanroopdas in the years 1896, 1897 and 1898 they were the property of the owners and will be restored to them whenever the debts are fully recovered.

This was followed by another agreement (Exh. 142), executed on the 13th of July 1.914, by Dhanroopdas, which again recited that the lands mortgaged by Abdul Aleem (sic) and Weedhal continued to remain mortgaged with him in lieu of the mortgage debts still remaining due and outstanding and that he had, from time to time, executed agreements for the Management of the said lands in favour of the heirs of the original mortgagors. But since the minor heirs had on attaining the age of puberty, been raising disputes a fresh agreement was being made for allowing him to remain in possession of the lands for a period of 25 years from 1913‑14 for the clearance of the mortgage debts.

Before this period could expire, Haji Kabool son of Weedhal died and his heirs' started pressing Dhanroopdas for returning their lands but instead of doing that Dhanroopdas actually not the survey Nos. 268 and 269 also mutated in the name of his son. This made them suspicious and they started Prtssia Dhanroopdas to settle their accounts and return their lands.

They were put off on one pretext or another till 1948 when ultimately they on the 31st of January 1948, moved the .Gent Conciliation Board of Hyderabad for the settlement of the debts. The Debt Conciliation Board, on the 11th February 1950, took the view that since the receipts (Exhs. 120 and 126) granted by Gianchand showed that the debts had been repaid it had no jurisdiction to go into the matter, particularly since the mortgagees were now setting up a case of having acquired title in the lands either by transfers or under decrees or by adverse possession. An appeal from this order failed on the same grounds on the 8th of May 1951 (vide Exhs. 180 and 181). The plaintiffs then filed the present suit.

This suit was contested only by Thakurdas, the brother ‑of Dhanroopdas and the father of the first appellant herein. His contention was that the agreement set up by the plaintiffs to show that Dhanroopdas had been admitting the title of the mortgagors as also continuing the mortgages by extending the periods thereof were all false and fabricated documents and were in any event, inadmissible in evidence.

According to him, Dhanroopdas had acquired all the right, title and interest of the mortgagors by the decrees mentioned in the plaint, as also by various deeds of sale; executed by the heirs of the original mortgagors in his favour. The suit was, furthermore, in any event, liable to fail since Dhanroopdas and his heirs had continuously been possessing and enjoying the lands in denial of the rights of the mortgagors and their heirs. The claim of the heirs of the alleged mortgagors was barred by limitation and adverse possession. The suit for redemption, it was further said, did not lie if as alleged in the plaint, the mortgage debts had been repaid. The mortgages stood redeemed by such payments.

It was further contended that the suit was not maintainable as these very plaintiffs had, in January 1949, filed a suit being No. 4 of 1949 for a similar declaration that the lands in suit and the produce thereof belonged to them and the defendants, namely, the heirs of Gianchand and Dhanroopdas has no right or title therein. That suit was dismissed for default on the 2nd of August 1949, and then an application for the restoration thereof under Order IX, rule 9 of the Civil Procedure Code, was also dismissed on the 19th November 1949.

So far as survey Nos. 268 and 269 or 152 were concerned, Thakurdas claimed that these had been acquired by him by purchases between September 1941 and December 1942, under various registered deeds of sale (Exhs. 191, 192 and 193 )

From these averments it would appear that while both sides admitted the mortgages of 1882 and 1887 they differed in respect of all other subsequent transactions relating to these lands. The plaintiff maintained that the decrees of 1892, 1896 and 1908 all collusive and fradulent decrees which were of no legal Act. According to them the various agreements (Exhs 124, ; ;5, 130, 133, 134, 141 and 142) setup by them clearly showed that Dhanroopdas was continuing in possession of the property and the period of redemption of the mortgages was, from time to time, being postponed by these agreements. These would not. have been necessary if indeed Dhanroopdas had acquired the full title in these properties by the decrees and deeds of transfer alleged to have been obtained by him.

The defendant, Thakurdas, on the other hand, contended that all these agreements as well as the receipts produced by the plaintiffs were forged and fabricated documents. In support of this contention, he pointed out that none of these documents were forthcoming even in the proceedings before the Debt Conciliation Officer or in the earlier suit of 1949 which was allowed to be dismissed for default. The case of Thakurdas was that the mortgages had long since been extinguished by the transfers of the properties for valuable consideration to Dhanroopdas. The decrees in terms of awards obtained by Dhanroopdas in 1896 were not for the original mortgage debts but for the fresh considerations mentioned in these decrees. Similarly, the deeds of transfer from time to time executed by the heirs of the original mortgagors were genuine documents whereby the vendors had for valuable consideration transferred their right, title and interest to Dhanroopdas. According to Thakardas, the plaintiffs were fully aware of all these decrees and the fact that their ancestors had transferred all their rights in these lands and they had by a series of subsequent Kabuliyats accepted tenancies under Dhanroopdas and hits heirs in respect of the very same lands.

Thakurdas also relied on the Debt Conciliation pro ceedings wherein it had been clearly held that the mortgages had been extinguished by payment and that there was no subsisting debt in respect of which the mortgagors could invoke the jurisdiction of the Debt Conciliation Officer. Reliance was also placed by him upon the dismissal for default of Suit No. 4 of 1949 which had been filed by the same plaintiffs and for substantially similar reliefs. It was contended that this constituted res judicata and a second suit did not lie.

It was in the alternative contended that if the two receipts (Exhs. 120 and 126) are held to have been proved then the mortgages were clearly redeemed as recited in these documents and a suit for redemption does not lie. The plaintiffs having lost possession should now sue for possession and not merely for redemption.

On these pleadings the trial Court raised as many as 30 issues but it is not necessary to deal with or recount each of these issues now. It will be sufficient to state that the trial Court found tire suit to be maintainable and to be within time being a proper suit for redemption. According to the mortgage deed of 1887 since the usufructuary mortgage was for a term of 5 years the right to redeem arose only on the expiry of the said period of 5 years on 22‑7‑1902. The suit filed in 1951, had, therefore, been brought within 60 years from that date and was within time under Article 148 of the Limitation Act. The trial Court also accepted the receipts and agreements produced by the plaintiff. These documents, which were more than; 30 years old, were presumed to be genuine as they were being produced from proper custody unless the contrary was proved by the party challenging their genuineness.

In the present case though Thakurdas had denied their genuineness, it was held that his bare denial was insufficient to dislodge the presumption as by making different statements on different occasions he had rendered himself unworthy of credence. Hence these documents were not only admissible in evidence but their contents could also be safely relied upon. Each of these documents contained admissions by Dhanroopdas that he was in possession of the lands as a mortgagee and that he was looking after them as a "Munshi" of the owners until the mortgage debts were cleared off. Even in the last of such agreements executed on the 13th of July 1914 (Exh. 142), Dhanroopdas had clearly reiterated that the lands continued to be mortgaged in lieu of the debts and for their clearance he would continue in possession for a period of 25 years ending in 1939. Thus there could be no question of adverse possession either, for the suit was brought within 12 years of 1940 when the right to take over possession accrued to the plaintiffs after the expiry of the period of the above‑mentioned agreement (Exh. 142).

The alternative case of Thakurdas that the mortgages have been redeemed was also rejected because it was held that the payment of the mortgage debt does not by itself, extinguish the right of redemption, for, the mortgagor's rights are to obtain:‑

(1) delivery of the mortgage deeds and documents of title relating to the mortgaged property,

(2) possession of the mortgaged lands, and

(3) reconveyances or acknowledgements.

In the present case if the agreements are accepted as they were by both the Courts below the High Court, then clearly the mortgagees continued ever‑since 1887 to remain in possession of lands by postponing, from time to time, till 1939 by the last agreement of 1914, the right of redemption and continuing the mortgages.

Thakurdaa's contention that the dismissal of Suit No. 4 of 1949 for default debarred the plaintiffs from filing a second suit for redemption did not also find favour with the Courts below:

On the basis of these agreements the Courts found no difficulty in coming to the conclusion that the decrees of 1892, 1896 and 1908 as well as the deeds of transfer obtained by Dhanroopdas were fraudulently obtained. The suit was accordingly decreed with costs and the declaration prayed for by the plaintiffs was granted. A preliminary decree for mesne profits was also drawn up and a Commissioner appointed to take accounts.

On appeal before the District Judge of Hyderabad, it appears that in addition to the points argued before the trial Court it was also urged that unless the decrees and sales relied upon by Thakurdas were cancelled no valid suit for a mere declaration could lie. The learned Additional District Judge who heard the‑ appeal repelled all these contentions. The mere payment of the mortgage debt, he held was not sufficient to extinguish the right of redemption since delivery of possession had yet not been made over by the mortgagee. As regards the decrees of 1892, 1896 and 1908 it was affirmed that they had been obtained by fraud and were, as such, inoperative and of no effect. Hence once that declaration was made it would follow as a consequence that these documents would have to be cancelled by way of consequential relief.

The argument that the dismissal of the Suit No. 4 of 1949 for default, debarred the plaintiffs from filing a second suit for redemption, was also rejected on the ground that the right of redemption being a continuing right would subsist till the redemption of the mortgage is achieved within the period of limitation prescribed therefor. The right of redemption could not be lost otherwise than as provided by section 60 of the Transfer of Property Act. Thus Order IX, rule 9 of the C. P. C. did not debar a second suit because the cause of action in the redemption suit is a recurring one.

The learned Additional District Judge also held that no question of adverse possession arose in the case since 12 years had not expired from the period during which it was agreed that Dhanroopdas would hold possession under the agreement of 1914 (Exh. 142).

As regards the contention that since a part of the property had been declared to be evacuee property the Civil Court had no jurisdiction to entertain the suit it was held that since no order of the Custodian had been produced to show that property, if any, had been treated as evacuee property, this contention could not be taken seriously. It has not been taken in the written statement of Thakurdas nor in the memorandum of appeal. The appeal was accordingly dismissed with costs.

The second appeal, as stated earlier, was dismissed in limine but even so the High Court gave some reasons for rejecting the points urged before it.

Leave was granted in this case because it was felt that some of the questions raised in second appeal, were clearly substantial questions of law which would have entitled the appellants to have their second appeal admitted and heard on merits.

Learned counsel appearing in support of the appeal has taken us through the entire record and contended firstly that the right to redeems had come to an end even in one of the manners provided by section 60 of the Transfer of Property Act, namely, by the acts of the parties, and, thereafter, the suit was not maintainable. The acts upon which reliance is placed for this purpose are said to be:‑

(1) that in the receipts (Exhs. 120 and 126) granted by Gianchand in 1889 and 1866 it is clearly stated that he is restoring the lands,

(2) that from 1889 onwards Weedhal and his heirs have admittedly been out of possession,

(3) that by the decrees of 3rd June 1896 (Exhs. 197 and 198) the heirs of Weedhal had with full knowledge transferred their rights in these lands, excluding survey Nos. 268 and 269, for valuable consideration, namely, Rs. 3,000 and Rs. 5,000 respectively,

(4) that in 1897 the lands had been mutated in the name of Dhanroopdas and in pursuance of the transfers by the above decrees.

(5) that finally the decree of 1908 had been passed in the presence of Kabool who had by then attained majority and this decree had re‑affirmed the previous decrees, and

(6) that under this decree the heirs of Weedhal actually took benefits, by getting their mortgage debts liquidated in addition to retaining survey Nos. 268 and 152.

It is contended that by these acts the right to redeem became extinguished so far as the mortgage of Weedhal was concerned.

These acts relied upon by the learned counsel would indeed have been very strong items of evidence to establish that the parties had accepted the position that the right of redemption had been extinguished if the agreements relied upon by the plaintiffs had not been accepted. Although on the 3rd June 1896, Dhanroopdas by the two decrees (Exhs. 197 and 198) ostensibly got all the right, title and interest of Weedhal's heirs transferred to him, yet within two months thereof he again executed an agreement in favour of Mst. Haleema widow of Dino and Mst. Niamat widow of Weedhal describing himself as their Munshi and agreeing to treat their properties as "amanat" only until the mortgage debts were paid off.

If these decrees of 1896 had been bona fide and lawfully obtained, then there would have been no necessity again to have these decrees re‑affirmed by the decree in Suit No. 4 of 1908. This latter decree, it is stated, was obtained in the presence of Kabool who had by then attained the age of majority. But it appears that on the 26th of August 1952, when an application was made by Thakurdas himself for a copy of the agreement to refer the dispute to arbitration the reply (Exh. 137) was received saying that the papers in the diary of the said case did not disclose that any such agreement was produced or filed by the parties in the case. How then could the award. be a valid award or a decree passed in terms thereof. .

Again so far as the representation of Kabool in the said suit No. 4 of 1908 is concerned, it appears, that this was done through Parial who, it is said, was appointed the Attorney for both Kabool and his aunt Mst. Sahibi vide Exhs. 139 find 140). "This by itself detracts from the genuineness of the proceeding. If Kabool had attained the age of 20 years then why should be have been represented in the suit by parial who on the admission of Dhanroopdas himself at least two agreements, executed by him (Exhs. 128 and 1331. Nvas of unsound mind. Can reliance be placed on such an act to bind Kabool or his aunt Sahibi

Furthermore, if indeed the decrees of 1896 had been genuinely obtained then it is difficult to appreciate why in 1899 Dhanroopdas got a mortgage Exh. 261) it respect of survey Nos. 268 and 269 executed by Allan Bachavo alone or made no mention therein of the decrees of 1896 by which these no very survey numbers had been given to Allah Bachayo, Mst. Niamat and Kabool jointly. It is, of course, riot known how survey No. 269 got subsequently changed to No. 152 in tic deer‑a of 1908 but be that as it may, it appears. that even thereafter Thakurdas between 15th September 1941 and 12th January 1942, tried to perfect his title to these plot by sitting separate deeds of sale excerted in respect of them by Mir Hassan son of Haii Kahnl (vide Fxhs 192 and 193) in his favour and in favour of Odharmal son of Hiranand.

Neither of these sale deeds make any mention of the mortgage created in respect of these lands either by the mortgage deed executed by Allah Bachayo in 1899 or by the decree in Suit No. 4 of 1908.

Faced with these difficulties the learned counsel appearing in support of the appeal has endeavoured to get rid of these agreements by contending that they were forgeries and that they should not have been admitted in evidence merely upon the basis of the presumption under section 90 of the Evidence Act. We have carefully examined the original documents on the record. They appear to have beers executed on genuine stamp papers of the relevant period which were sold by a Hindu stamu vendor to Dhanroop.das him elf, They contain no internal evidence of e forgery. They appear to be perfectly genuine documents. Section 90 of the Evidence Act did, therefore, entitle the Court to presume, once cu‑h a document more than 30 years old had been produced from proper custody, that it was a genuine document,

The only evidence in rebuttal was that of Thakurdas himself but unfortunately, as pointed out by the Courts below, he made Conflicting statements with regard to the signatures on these documents. He had stated at one stage, before the Debt Conciliation Officer, that he was not in a position to recognise either the signature of leis father Gianchand or that of his brother Dhanroopdas but at another stage before the Sessions Court in Session Case No. 206 of 1958 (Exh. 304) he modified his previous statement and testified to the effect that he could identify the handwriting of his brother, Dhanroopdas, but could not identify the hand writing of his father. But, in his evidence in this case he maintained that he could identify the handwriting of his father also. In these circumstances the Courts below took the view that since he was an interested witness his uncorroborated statement could not be accepted, particularly, since he appeared to be a person who denied or admitted facts according as it suited him. We are unable to say that in the circumstances this was an unjustified inference. We agree with the courts below that these agreements are not forgeries as now sought to be contended by the learned counsel. They were in our view rightly admitted into evidence.

His next contention is that these agreements could not be relied upon, for they had never been produced at any earlier stage either before the Debt Conciliation Officer or in Suit No. 4 of 1949. Learned counsel appearing for respondent No. 4 has, however, pointed out that this is not correct, for, in an application which Abdul Wali, respondent No. 1, made to the Deputy Collector of Hala on the 4th of October 1958, (Vide Exh. 132), these agreements have in fact been referred to. It cannot, therefore, be said that these agreements were thought of for the first time after the dismissal of the Suit No. 4 of 1949.

These agreements give a completely different complexion to the case. They clearly show that from 1894 to 1914, Dhanroop das has been repeatedly admitting that the properties were subject to mortgage and that he was keeping possession thereof in order to clear the mortgage debts as a "munshi" of the owners. In each of these agreements the period for which Dhanroopdas was to continue in possession was progressively extended until in the last agreement it was taken to the end of 1939. This, therefore, clearly constituted a postponement of the period of redemption of a subsisting mortgage.

So far as the share of Abdul Aleem is concerned, the position is if anything worse for the appellant. The exact date of death of Abdul Aleem is not known but it appears that he was alive on 9th of November 1886 when he executed a deed of partition (Exh. 127) dividing his properties amongst his heirs because at the time his only adult son Parial was of unsound mind and his other two sons were minors. On the 24th December 1890, in the agreement (Exh. 128), executed by Dhanroopdas in favour of Darya Khatoon, widow of Abdul Aleem, however, it was stated that Abdul Aleem had died suddenly some 4 or 5 years before. This would indicate that Abdul Aleem had died in 1886 soon after executing the deed of partition. Hence the second mortgage in respect of his properties which was said to have been executed on the 23rd of July 1887 could not have been executed by Abdul Aleem as stated in the agreements of 1908 and 1914 (Exhs. 141 and 142). No copy of this mortgage deed has been filed, but in the deed of sale (Exh. 129) purported to be executed on 24th Decem ber 1890 by Parial alone, in favour of Dhanroopdas, it has been stated that the mortgage deed of 1887 was executed by Parial. This would appear to be correct and if this be so then apart from the question as to the soundness of mind of Parial the further question does also arise as to how Parial, who was not the sole heir of Abdul Aleem, could alone either validly mortgage or sell the entire 16 annas share of Abdul Aleem in these lands. On the other hand if in fact Parial was of unsound mind as admitted in the agreements (Exhs. 128 and 133) executed on the 24th of December 1890 and the 28th July 1896 by Dhanroopdas then neither of these transactions can be treated as being valid. The transactions purported to have been entered into between Parial and Dhanroopdas were by means genuine, nor can the decree (Exh. 260) obtained by Dhanroopdas on the 9th of July 1892 against the three sons of Abdul Aleem be considered to be a bona fide affairs.

If they had been genuine then it would not have been neces sary for Dhanroopdas to execute another agreement (Exh. 134) on the 14th of August 1903 in favour of Parial and Amin Muhammad. two of the sons of Abdul Aleem or to execute the agreement of the 13th July 1914 (Exh. 142) for retaining posses sion of the lands for 25 years up to 1939.

The genuineness of decree in Suit No. 4 of 1908 is also demo lished by the agreement (Eah. 141) of the 24th June 1908 executed by Dhanroopdas in favour of Kahool, Parial, Amin Muhammad and Muhammad son of Muhammad Rahim acknowledging that the mortgage debts of 1887 were still outstanding and that even though the lands had, by mistake in 1896, 1897 and 1898, been mutated in the name of Dhanronpdas, they continued to belong to heirs of Weedhal and Abdul Aleem and that Dhanroopdas would be possessing and managing them only for the purpose of clearing up the mortgage debts.

In these circumstances it cannot be said that the Courts below had acted wrongly in holding that the decree and deeds of sales obtained by Dhanroopdas were fraudulent and fictitious transactions.

Learned counsel has next contended that in any event the Courts below ought to have held that the ancestors of the appel lants had acquired title in these lands by adverse possession. If, it is contended, the mortgage debts were paid off as stated in the receipts (Exhs. 120 and 126) in 1886 and 1889 respectively then the possession of the mortgagee thereafter was that of trespasser and since he bad continued in possession as such for more than 12 years thereafter the right. title and interest of the mortgagors had been extinguished. In support of this contention reliance has been placed on two decisions in the cases of Mst. Ram Kuer v. Govtnd Ram and others (A I R 1925 All. 62.) and The Deputy Commissioner, Gujrat v. Allah Dad and others (A I R 1937 Lah. 408). But we are unable to agree that these decisions have any application in the facts of the present case.

The position here is that by the various agreements executed by Dhanroopdas between 1894 and 1914 the period of redemption was postponed. If that be so then the right to redeem the mort gage accrued to the mortgagors only after the expiry of the extended period. The mortgagors were consistently led to believe that the mortgage debts were still due and outstanding and, as such, the mortgagee was continuing in possession. The present is not a case where the usufructuary mortgagee is continuing ink possession even after the satisfaction of the mortgage debt.

The next contention of the learned counsel is that in any event this suit was not maintainable after the dismissal of the Suit No. 4 of 1949 which though a suit for a declaration of title was in substance based on the same cause of action. The trial Court refused to go into this question on the ground that the plaint of that suit had not been filed but it is pointed out that the plaint (Exh 189) was on the record and would have shown that the suit was substantially on the same grounds alleging fraud on the part of Dhanroopdas.

In support of this contention reliance has been placed on a decision of the Judicial Committee of the Privy Council in the case of Thakur Shankar Baksh v. Dava Shankar and others (15 1 A 66). There the Judicial Committee has held that after the dismissal of a previous suit for redemption in the Settlement Court a subsequent suit upon substantially the same cause of action, though by different mode of relief, would still be tarred. In this decision the Judicial Committee had acted upon the principle of English law that the dismissal of a redemption action operated as a foreclosure but in a subsequent case of Raghunath Singh v. Hansraj Kunwar (16 1 A 362) the Judicial Committee itself thought that :‑

"It is impossible to say (as may be said under English law) that the diRmis‑zal of a redemption action operates as fore closure, unless the justification of that statement is to be found in the language of the Act." (Transfer of Property Act).

Thereafter it went on to consider the relevant provision of the Transfer of Property Act, namely sections 60, 92 and 93 and to give the following opinion :‑

"The right to redeem is a right conferred upon the mortgagor by enactment. of which he can only be deprived by means and in the manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is section 60, but in their Lordships' view the old decree cannot properly be construed as doing that which it does not purport to do‑namely, as extinguishing the right to redeem."

It would appear to follow from this that the right of redemption, which is an incident of a subsisting mortgage, subsists so long as the mortgage itself subsists. To can only be extinguished as provided by section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the forms prescribed for the purpose and unless the right of redemption is so extinguished a second suit for redemption if filed within the period of limitation will not be barred.

The same view has, it appears, been also taken by the Federal Court of India in the case of that China Subba Rao v. Matta Palli Raju (AIR 1950 B C 1). We are unable, therefore, to agree that in the present case the second suit for redemption was barred, as contended by the learned counsel appearing on behalf of the appellant, by the dismissal of Suit No. 4 of 1949. The decree in that suit was neither in the form prescribed for a mortgage decree nor did it purport to extinguish the right of redemption. The right of redemption being a continuing right cannot also be barred by Order IX, rule 9, C. P. C. If the second suit is brought within the period of limitation.

As we have come to the view that the mortgage was still subsisting by reason of the agreements executed by Dhanroopdas between 1894 and 1914 no question of adverse possession either arises. If the right to redeem arose only in 1940 then the suit was also within 12 years of that date.

It remains now to notice the arguments of the learned counsel regarding the share of Dino. As earlier stated in respect of 65 survey numbers Abdul Aleem and Dino were jointly recorded as Khatedars in the shares of 10/8 and 5/4 respectively. Dino himself never mortgaged his share. Hence it is contended that so far as his share is concerned neither Gianchand nor Dhanroopdas nor their heirs could claim to possess as mortgagees. They were clearly trespassers. There could be no suit for redemp tion of any mortgage in respect of his share. They could only be suit for recovery of possession of the share of Dino and this suit would be clearly barred by limitation. The decree should, therefore, be modified to that extent.

In this connection it has to be pointed out that both Abdul Aleem and Weedhal purported to mortgage the share recorded in the name of Dino as well alleging that though Dino was recorded as a share‑holder he had no concern with these lands. Dhanroopdas himself also on the 24th of November 1894 executed an agreement (Exh. 130) in favour of Mst. Haleema widow of Dino, stating that Weedhal had mortgaged even the share of Dino with Gianchand and since that mortgage debt had not been cleared he was retaining possession of the property in the capacity of a munshi' and would be doing so until the sons of Haleema's brother attained majority. This admission binds the heirs of Dhanroopdas and clearly indicates that even the share of Dino was being treated as mortgaged with Gianchand. Indeed throughout Dhanroopdas appears to have been possessing the entire lands on the basis that even the share of Dino was mortgaged. His heirs cannot, therefore, now be allowed to resile from that position and to set up the case they were only trespassers in respect of his share in these lands.

Lastly an effort was made to keep out survey Nos. 268 and 269 which, it was claimed, Thakurdas hail obtained under deeds of sale executed by the son and daughter of Kabool in 1941 and 1942 vide (Exhs. 192 and 193). Even with regard to these two plots, it appears, though tale decree in Suit No. 1888 of 1896 had given them to Mst. Niamat, Kabool and Allah Bachayo jointly, Dhanroopdas, on the 7th of October 1899 got a usufructuary mortgage (Exh. 261), executed in respect of these same two plots by Allah Bachayo alone on the 17th October 1899, and again by the decree of Suit No. 4 of 1908, plots Nos. 268 and 152 were to remain mortgaged with Dhanroopdas for an indefinite period until the happening of an uncertain event. Even these two survey numbers, therefore, appear to have been retained possession of by Dhanroopdas as a mortgagee. Survey No. 269 is in any event also covered by the agreement (Exh. 142), executed on the 13th of July 1914 by Dhanroopdas. There is thus no clear demarcation even by the mortgagee as to his rights in these two survey numbers. He has at his convenience treated them as mortgaged or as sold to him.

Lastly it is urged that in this case there was not sudoient evidence to attract the provisions of section 18 of the Limitation Act: We have already held that the suit was filed well within the period of limitation, hence, it is not necessary to consider whether section 18 of‑the Limitation Act was attracted in this case or not. There can be no doubt, however, that the decrees in terms of awards and the documents of sale obtained by Dhanroopdas were obtained fraudulently. This is the only inference possible in the facts found in this case.

It seems that Dhanroopdas had not only taken undue advantage of the helplessness of the female, minor and insane heirs of Abdul Alim and Weedhal but actually used Parial, a person of unsound mind, as a tool in his nefarious design of swallowing these lands for almost next to nothing.

It also be pointed out that in the document of sale (Exh. 129) purported to be executed on the 21st of April 1891 by Parial, Weedhal has actually been shown as an attesting witness, although he had died long before th4t date on the 22nd of February 1890, as found by the trial Court. This shows the extent to which Dhanroopdas could go.

Learned counsel has, no doubt, tried to show that the extract from the register of births and deaths was a forged document, because, subsequently when Thakurdas had applied for the copy of the same extract it was stated that the register was not available. This does not establish that the extract produced by the plaintiffs was a forged document, particularly, since this tallies with the date given by Dhanroopdas himself in the agreement executed by him on the 16th June 1894 (Exh. 124) in favour of Mst. Niamat wife of weedhal. In this too it had been stated that Weedhal had died 4 or 5 years back. If this be correct then he could not have been alive in April 1891 to witness the deed of sale executed by Parial.

Lastly learned counsel has contended that the civil Court had no jurisdiction to deal with that portion of the property which had been either declared to be evacuee property or been resumed under the land reform proceedings. This question, as pointed out by the first Appellate Court, was neither raised in the written statement nor the memorandum of appeal nor has any final order been produced to show that any portion of the lands in dispute were so treated either by the Custodian or the Land Commission authorities. The contention, therefore, is without any foundation. In any event if title in these properties never passed to the mort gagees then the mere fact that some of them had become evacuees would not make any of these properties evacuee. However in the absence of any definite material on the record of this case we do not propose to express any final opinion on this question.

For the reasons stated above, we are of the view that this appeal must fail and would accordingly dismiss it with costs.

A. H Appeal dismissed.

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