Judgement Appeal from a judgment and decree of the High Court (August 4, 1913) reversing the decree of the District Judge of Azamgarh (May 29, 1912) and restoring the decree of the Subordinate Judge. The only question in the appeal was whether, under the circum-stances stated in their Lordships judgment, a copy issued by a Zillah Court of a sulhnama, or petition of compromise, filed in that Court in 1857 was properly admitted as evidence of a usufructuary mortgage sought to be redeemed in the suit. The Subordinate Judge admitted the document in evidence, but his decision was reversed by the District Judge. The High Court held that the document was admissible and restored the decree of the Subordinate Judge in favour of the respondents. Ryves J. said that, the copy having been admitted in evidence, any question as to whether it was duly stamped was precluded by s. 36 of the Stamp Act, 1899; if, however, it could be shown that the original petition was not duly stamped, the copy would not be admissible as secondary evidence of its terms. There was no evidence as to what stamp, if any, the original bore, and it could not be inferred from Sched. A, art. 20, of Regulation X. of 1829 that because the copy was stamped R.I the original Law. Rep. 43 Ind. App. 264 ( 1915- 1916) Ahmad Raza V. Abid Husain 127 petition was so stamped. In the absence of any evidence to the contrary it should be presumed that, in accordance with s. 3 of the Regulation, the Court was satisfied that the original was properly stamped before it was placed upon the record. Sir H. D. Griffin J. agreed. 1916. June 22. E. B. Raikes, for the appellants. It is conceded that in 1857 the property could have been orally mortgaged, but the mortgage having been reduced into writing by the petition, that document was, under s. 91 of the Indian Evidence Act, 1872, the only admissible evidence of its terms. The original petition would not have been admissible to prove the mortgage unless stamped as a mortgage in accordance with Sched. A, art. 7 and art. 35, of Regulation X. of 1829, under which it required a stamp of Rs. 10. The copy of the petition was only stamped R. 1. By art. The original petition would not have been admissible to prove the mortgage unless stamped as a mortgage in accordance with Sched. A, art. 7 and art. 35, of Regulation X. of 1829, under which it required a stamp of Rs. 10. The copy of the petition was only stamped R. 1. By art. 20 of the Regulation a copy furnished for the purpose of being given in evidence was made liable to " the same duty as prescribed for the original deed." It must, therefore, be presumed that the original was only stamped R.I. The original being insufficiently stamped, the copy was not admissible as secondary evidence of its terms. The petition could not validly be stamped merely as a sulhnama, for which under Sched. B, art. 10, a R.I stamp is sufficient, as the terms of the compromise went beyond the issues in the suit. The decision in Ram Dayal v. Dube Jhaunnam Lai (( 1871) 3 N. W. P. Rep. 14.) is distinguishable, as the plaint in the present case was not based upon an antecedent oral ; agreement. De Gruyther, K.C., and Sir W. Garth, for the respondents, were not called upon. July 21. The judgment of their Lordships was delivered by MR. AMEER ALI. This appeal from a judgment and decree of the High Court of Allahabad arises out of a suit brought by the plaintiffs in the Court of the Subordinate Judge of Azamgarh for the redemption of an usufructuary mortgage alleged to have been created in 1857 in respect of a 12-annas share in the village of Malgaon. The document on which they rely to establish the mortgage is a certified copy of a petition of compromise filed in Court on April 1, 1857. It is not disputed that the record of the proceedings in which this petition was filed was destroyed in the Mutiny, which broke out shortly after. The certified copy is, however, admissible in evidence relative to the facts recited therein, and was rightly admitted by the Subordinate Judge. The question for determination in this appeal is, however, whether, if the petition is to be treated as creating the mortgage, it was properly stamped in accordance with the Indian statute then in force to entitle the plaintiffs to sue upon it. The facts which led to its being filed in Court are simple. The question for determination in this appeal is, however, whether, if the petition is to be treated as creating the mortgage, it was properly stamped in accordance with the Indian statute then in force to entitle the plaintiffs to sue upon it. The facts which led to its being filed in Court are simple. A suit had been brought by the plaintiffs ancestors against the predecessors of the defendants for a decree for possession "by partition" of the 12-annas share in mauza Malgaon to which they claimed to be entitled. Their claim appears to have been dismissed by the first Court. The appeal from this dismissal of their suit, preferred by the plaintiffs, was pending before the Zillah judge. The parties, however, came to a compromise, and, as stated already, on April 1, 1857, filed before that officer the petition in question, signed by the pleaders of the parties. In this petition they notified to the Court the terms of the settlement and prayed that the case might be decided according to the conditions set forth above. These " conditions " are stated in the body of the petition in the following terms " Now the parties have come to a settlement in this way, that we, the respondents, admit the ownership of the appellants, and that the claim has been brought within time ; that the respondents shall remain in possession of the aforesaid property for a period of twelve years in lieu of the mortgage money; that the appellants shall redeem the aforesaid property after twelve years, on payment of the mortgage money out of their own pocket." The order indorsed on the document is as follows " To-day the pleaders for the parties filed this Law. Rep. 43 Ind. App. 264 ( 1915- 1916) Ahmad Raza V. Abid Husain 128 compromise in the presence of their respective clients, and verified and admitted all the conditions laid down therein. It is, therefore, ordered that the compromise be placed on the record, and the case be put up to-morrow in the forenoon for final disposal." And then follows the date April 1, 1857, and the judges signature in English. On April 28, 1857, the certified copy now filed was issued to the pleader acting for the predecessors of the plaintiffs. The present suit is based on the recital in the petition relating to the mortgage. On April 28, 1857, the certified copy now filed was issued to the pleader acting for the predecessors of the plaintiffs. The present suit is based on the recital in the petition relating to the mortgage. The defendants, among other pleas, raised the objection that the contract was not enforceable, inasmuch as the document was not properly stamped. The Subordinate Judge overruled this objection and, holding in favour of the plaintiffs on the other points, decreed their claim. The District Judge on the appeal of the defendants came to a different conclusion. He was of opinion that " the original deed of compromise " bore only a stamp of K.I, and he went on to say " If the original had borne a stamp of Rs. 10 the stamp on the copy would also have been one of Rs. 10, as required by art. 20 of Sched. A of the Regulation. I hold that the original compromise bore a stamp of R. 1 only; that the document required a stamp of Rs. 10; and that as the document was insufficiently stamped its copy is not admissible in evidence." He accordingly reversed the decision of the Subordinate Judge and dismissed the suit. The plaintiffs thereupon appealed to the High Court of Allahabad, which set aside the decree of the District Judge and restored that of the first Court. The defendants have appealed to His Majesty in Council, and their main contentions against the judgment and decree of the High Court are the same that found acceptance before the District Judge. In their Lordships opinion there are two short answers to the defendants objections. It is not disputed that before the Transfer of Property Act (IV. of 1882) came into force such mortgages could be created without any writing, outside the Presidency towns, by simple delivery of possession. The petition by which the compromise was notified to the Court recites the terms on which the dispute was settled, among them being the agreement relating to the usufructuary mortgage. The mortgage was made verbally, and was valid according to the law then in force ; it was notified to the Court as a part of the settlement. The petition by which the compromise was notified to the Court recites the terms on which the dispute was settled, among them being the agreement relating to the usufructuary mortgage. The mortgage was made verbally, and was valid according to the law then in force ; it was notified to the Court as a part of the settlement. The present suit is not based on any agreement contained in the petition; it is based on a contract made outside and recited in it to enable the Court to make a decree in accordance with the settlement. If the Zillah Judge passed a formal order, as he proposed to do, embodying in his decree the terms of the settlement, and there is no reason to suppose that he did not, the present objection must necessarily fall to the ground. But whether he did or did not, the present suit, based on the agreement made independently of and before the petition was filed in Court, would be clearly maintainable. Again, if the petition is to be treated as the document creating the mortgage, it may be rightly presumed that the officer before whom it was presented satisfied himself that it was properly stamped. No inference can be derived from the fact that the copy bears a R.I stamp. Under the Court Fees Act (VII. of 1870) it is the proper stamp for issuing a copy of the proceeding in the Zillah Court; and as a copy of the petition and the order thereon, it bears the right Court fee stamp of R.I. The District Judge clearly fell into an error in taking the stamp on the certified copy as an indication of the stamp on the petition itself. Their Lordships concur generally with the reasons given by the learned judges of the High Court for overruling the decision of the District Judge, and they are of opinion that this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly.