TMI Blog1931 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ow represented by the 6th and 7th appellants, Ram Prasad and Radha Prasad, in favour of the managing members of the respondents' family. A question was raised at the trial of the suit as to one Sita, another member of the mortgagors' family, who was said to have disappeared and was not joined as a party, but this has no bearing on the matter at issue in the present appeal. The mortgages all provided for redemption on the full moon day of Jeth in any year on repayment of the principal moneys without interest. The respondents were in possession at the date of suit. The first five appellants claimed as transferees of the equity of redemption from the 6th and 7th appellants under two permanent leases dated respectively June 19, 1921, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who can then come in and receive the money. Section 84 provides that interest on the principal moneys shall cease from the date of the deposit, and the plaintiffs accordingly claimed mesne profits from June 19,1921. The ascertainment of the these profits was left over by the decree of trial Court for subsequent inquiry, and no question as to the amount arises in this appeal which is solely concerned with the right to redeem. 5. The suit was instituted on March 3,1922, in the Court of the Subordinate Judge of Arrah, The plaint set out the mortgages, the plaintiffs' title under the leases above referred to, the tender and deposit, and alleged that notice of the deposit had been duly served on the mortgagee defendants. Summonses were se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June 26, the mortgagee defendants applied to file four documents which are referred to as Ex. A, Al, A2 and A3. Of these, Ex, A is of the greatest importance in the case. It purports to be a contract, signed by the sixth appellant Earn Prasad on behalf of his uncle and brothers, representing the family of the mortgagors, and dated November, 14,1917, by which in consideration of the mortgagees fighting out the survey proceedings with the tenants, the mortgagors, in effect, agreed to transfer the whole of their interest in the mortgaged property to the respondents. There is some difficulty in the construction of this document, but its main purport is sufficiently set out as above. It is said to have been executed in the presence of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there must have been some arrangement as to the costs to be incurred : that the agreement set up by the respondents (i e., Ex, A), and the story told by them, is inherently probable : that there is no reason to disbelieve the witnesses who depose to it: and that there is nothing suspicious about what their Lordships have called the episode of the written statement, 13. Upon their Lordships' own examination of the facts, they are unable to accept this line of reasoning. The respondents were mortgagees in possession, and would be entitled under Section 72 of the Transfer of Property Act, 1882, to add to the principal of their mortgages any money properly expended by them in supporting the title of their mortgagors. It can hardly be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penmanship of the original: he sees no reason why Harnandan Singh or even Jug Narain should have been called. 14. Their Lordships have no desire to pursue further their criticisms of this judgment. They will only say that it is, in their opinion, unconvincing and unsatisfactory. They must, however, refer to one incident. The question of the thumb-impression of Musammat Bataso was apparently regarded as of importance, and the respondents seem to have applied before the hearing in the Appellate Court began to be allowed to give evidence of its genuineness. The learned Judges acceded to this application and adjourned the hearing to give the respondents an opportunity of producing a genuine thumb-impression of the lady, and tendering exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the evidence as it stands, some inherent lacuua or defect becomes apparent . This is laid down in the most positive terms by Lord Robertson in Kessowji ISSUR v. Great Indian Peninsula Railway (1907) L.R. 31 I.A. 115, 122, s.c. 9 Bom. L.R. 671. He was dealing with the worda of Section 568 of the Code of 1882, but they are substantially the same as those of Order XLI, Rule 27, of the present Code. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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