Ross, J.:— 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 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 Sarma Moitra and Krishna Kishori Chowdhrani v. Kishorilal Roy] in which secondary evidence was rejected where the parties failed to account for the non-production 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 was made in Baisakh, the tender was not valid and therefore, in the absence of valid tender, no suit for redemption would lie. The learned Advocate for the appellant relied on the decision in Mahommed Ali v. Baldeo Pande(4) which does support that proposition. But that decision has been clearly overruled by the Full Bench of the Allahabad High Court in Raghunandan Rai v. Raghunandan Pande(5) 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 redemption. I fail to see how tender can be necessary before a suit can fee 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 be 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.
Appeal dismissed.