JUDGMENT : 1. This second appeal arises' out of a suit brought to redeem an old mortgage. The plaintiff's case was that the property in suit was mortgaged by two persons Kiddu and Sahi Ram to one Mewa Lal, the predecessor-in-title of the defendant, for a sum of Rs. 99, somewhere about the year 1831. The mortgage was alleged to be usufructuary, the terms being that the income of the property was to be deemed equal to the interest on the money advanced, neither party to account. The plaintiffs are the purchasers of the equity of redemption from one Mt. Punia, the re-presentative-in-title of the original mortgagors. The mortgage being for a sum of Rs. 100 is said to be unregistered. Neither the original deed nor a copy was produced. The defence was a total denial of the mortgage and the allegation of the defendants was that they were the owners of the property and not the mortgagees. The plaintiffs produced one witness Neka who testified that he was a marginal witness to the document and that the document was executed in his presence and he gave the terms of the mortgage. 2. To support his evidence the plaintiffs produced copy of the khewats of 1283 and 1256 faslis. The copy of 1256 fasli shows that the property was then unmortgaged. The copy of 1283 fasli which bears on it the signature of Mewa, the original mortgagee shows that the property was then recorded at the Settlement time as in the hands of Mewa Lal the mortgagee, Kiddu and Sahi Ram being the mortgagors. The Court of first instance came to the conclusion that there had been a mortgage, but in regard to the terms of the mortgage, it disbelieved the evidence of the witness Neka, and holding that the terms of the mortgage not having been satisfactorily proved, the plaintiffs were not entitled to a decree. 3. The lower appellate Court held that the evidence of Neka was worthy of credit and strongly corroborated by the documentary evidence, namely the khewats of 1256 and 1283 faslis and granted a decree for possession of the property, the sum of Rs. 99 having been paid into Court. The defendants come here on-second appeal. 4. Though there are several grounds, entered in the memorandum of appeal, only one ground has been pressed. 99 having been paid into Court. The defendants come here on-second appeal. 4. Though there are several grounds, entered in the memorandum of appeal, only one ground has been pressed. The point taken is that the witness Neka, as his evidence shows, is an illiterate person who is unable to read and write, that his evidence if anything falls within Cl. (5), Section 63 of the Evidence Act, which lays down that secondary evidence means and includes an oral account of the contents of a document given by “some person who has himself seen it,” and that as he, Neka, was illiterate and could not read, he is not one of that class of witnesses which is contemplated by Cl. 5, S. 63, There is considerable force in this argument. An oral account of the contents of a document given by some person who has merely seen it with his eyes but is unable to read it is merely the repetition of what was told or read out to him as to the terms of the document by some body else. I am clearly of opinion that the word “seen” in this clause of S. 63 means something more than the mere sight of the document. 5. The clause clearly contemplates the evidence of a person who, having seen and examined the document, is in a position to give direct evidence of the contents. In this view the evidence of the witness Neka does not fall within this clause, he having admitted himself to be unable to read and write. He even admits that he did not sign his name on the document but merely touched the pen with which his name was written by another person. But from an examination of the record it will be seen that the plaintiffs had other evidence to produce of the contents of the document, e.g., that of the scribe who actually wrote it. The objection now taken for the first time in second appeal was not raised in the Courts below. If it had been taken there, it might possibly have been met by production of the scribe who was summoned as a witness but was not examined. The khewat of 1283 fasli leaves it beyond doubt that there was a mortgage and also beyond doubt that there is considerable justice in the plaintiffs' claim. If it had been taken there, it might possibly have been met by production of the scribe who was summoned as a witness but was not examined. The khewat of 1283 fasli leaves it beyond doubt that there was a mortgage and also beyond doubt that there is considerable justice in the plaintiffs' claim. The case is one in which, in my opinion, justice demands that all the evidence available should be brought on the record and the plaintiffs be allowed an opportunity of meeting an objection which has been raised for the first time on second appeal. I therefore remand the case to the Court below with directions to take any further evidence which either side may offer as to the contents of the document, and after considering that evidence together with the evidence which is already on the record, to come to a fresh finding on the point of fact, namely as to the terms of the contract between the parties as embodied in the document. On receipt of the finding, ten days will be allowed for objections.