JUDGMENT : This second appeal arises out of a suit brought by the plaintiff for the cancellation of a part of mortgage deed and allowing the residue to stand. The trial Court (Munsiff Court, Khargone) decreed the suit, but on appeal, the District Judge of Mandleshwar in civil Appeal No. 32 of 1949, non-suited the plaintiff on the ground that such a suit could not be maintained. 2. The facts in short are that the plaintiff Chajulal owns a house No. 272 in Kalali Mohalla Khargone. His neighbour Hiralal (defendant 1) mortgaged his house No. 271 with possession to Gokul s/o Sitaram, who is defendant 2 in this case. The plaintiff alleges that Hiralal, the mortgagor has wrongly stated the following facts in the mortgage-deed : (1) That the middle wall is of exclusive ownership of Hiralal defendant 1. In fact it is a common wall and belongs to both. (2) That the drain-water from the house, that is mortgaged, flows through the house of the plaintiff. (3) That Hiralal has a right of way for the sweeper to go through the court-yard of the plaintiff's house. 3. It is stated that the above recitals in the mortgage-deed are likely to prejudice him in the future, and, because they infringe upon his rights, they should be cancelled. 4. The trial Court, as already stated had decreed the suit, but the learned District Judge of Mandleshwar held that this could not be treated as a suit under S. 39, Specific Relief Act, nor one under S. 31, Specific Belief Act and that the suit as it is, is not maintainable. 5. The learned counsel for the appellant contends that S. 31, Specific Relief Act does not apply to this suit and that he had not brought the suit under that section. He says this must be treated as falling within the orbit of Ss. 39 and 40, Specific Relief Act. 6. While S. 39, Specific Relief Act, deals with the cancellation of a document, S. 40 of the Act, further provides for cancellation in part only, so that the residue may stand. It may be said that after enacting S. 39, it was not necessary to add S. 40, because when the Court is empowered to cancel the whole of an instrument, it implies, that power to cancel a document in part is also there. It may be said that after enacting S. 39, it was not necessary to add S. 40, because when the Court is empowered to cancel the whole of an instrument, it implies, that power to cancel a document in part is also there. It is a well known mathematical proposition, no less true in other spheres too, that the whole includes a part as well. 7. Both these sections (Ss. 39 and 40, Specific Relief Act), are based on the principle of protective and preventive justice. It may be that a person is afraid that an instrument, the cancellation of which he seeks, may be used against him when evidence to impeach it may be lost or it may involve him in some future litigation, when the facts may no longer be capable of proof or when their proof may become obscure by lapse of time. To prevent future mischief, and the consequent injustice the Courts of Equity have interposed in such instances. 8. Before S. 39, Specific Relief Act, can be invoked, the plaintiff must show that there is a reasonable apprehension that if the instrument is left outstanding, it may cause serious injury. 9. Reverting to the facts of the case, obviously, the apprehension which exists in the mind of the plaintiff is that the insertion of the right of passage for the sweeper, the right of the flow of water on the land of the plaintiff and the claim to the exclusive ownership of the middle wall in the mortgage deed, may in the future cause him injury, when his evidence to impeach these may be lost. There is no doubt that the recitals in the deed, if wrong, are most annoying and can cause apprehension which will not be without rhyme and reason. A person may regard a threat, consisting of the loss of the amenities of his house, as quite a serious matter. Looked at from this point. I think the plaintiff has a reasonable apprehension that serious injury may accrue to him and he seems justified in instituting the proceedings he has taken. 10. The learned counsel for the respondents has argued that the recital in the mortgage deed at the most amounts to an admission and it does in no way touch the plaintiff. I think the plaintiff has a reasonable apprehension that serious injury may accrue to him and he seems justified in instituting the proceedings he has taken. 10. The learned counsel for the respondents has argued that the recital in the mortgage deed at the most amounts to an admission and it does in no way touch the plaintiff. The recital being of no binding force so far as he is concerned, the plaintiff need entertain no fear and his apprehension is too vague to be termed reasonable. To support the above contention he has cited, Jeka, Dula v. Bai Jivi, AIR 1938 Bom 37 and Ba Maung Maung v. Maung Ba Yin, AIR 1939 Rang 332 (FB). 10a. The Bombay case that has been cited lays down that mere speculation as to unknown and vague complication arising in future is no ground under S. 39. But, in the present case, the complication is definitely known and is real. For this reason, this ruling does not apply to the facts of the case under consideration. 11. Similarly AIR 1939 Rang 332 is inapplicable. 12. The learned counsel for the appellant refuted the argument that the recital is of no legal consequence by submitting that the recital can be used against his client under S. 13, Evidence Act. But the learned counsel for the respondents, relying upon Jyoti Prashad Singh v. Bharat Shah Babu, AIR 1936 Pat 543 holds that the recital cannot be tendered in evidence against the plaintiff under S. 13, Evidence Act. 13. I have carefully studied the wordings of S. 13, Evidence Act, and the ruling referred to by the learned counsel for the respondents. 14. The interpretation of S. 13, Evidence Act is not free from difficulty. Although the Patna Ruling says (basing its decision on a case decided by a Full Bench of 3 Judges of Calcutta in Brojendra Kishore v. Mohim Chandra, 31 Cal WN 32), that mere assertion of a right in a document is not a claim to a right and does not, therefore, come within the meaning of S. 13, but a reference to Vythilinga v. Venkatachala, 16 Mad 194 and Monmotha Nath v. Rajeswar Rai, 55 Cal 355 would show that it is possible to hold a different view. Gajjalal v. Fatteh Lal, 6 Cal 171 was an authority for the proposition that the decision of a suit between two persons, cannot be admitted in evidence under S. 13, Evidence Act against a person who is a stranger and is not a party to the suit. In this case, Mitter, J., dissented from the majority view. Much of the authority of this Calcutta judgment appears to have been shaken by a subsequent Privy Council decision in the case of Ram Bahadur Singh v. Lucho Koer, 11 Cal 301 (PC). I would not, in this case, like to embark on a discussion of what may and what may not be evidence under S. 13, Evidence Act. I would not go beyond remarking that there are conflicting authorities on the construction of the section and the apprehension of the plaintiff is not without foundation. 15. In the view that I have taken in the matter, I hold that the plaintiff can bring a suit of the nature he has filed. 16. I find on perusal of the record that I should send this case back to the District Judge, who merely held that the suit as framed would not lie. He did not decide other questions of facts, that were agitated in the appeal before him. This being a second appeal, I would not go into those questions. So, it is just and proper that the case should be remanded. 17. In result, I allow the appeal and setting aside the judgment of the learned District Judge, send the case back to him with a direction that he should decide other questions raised in appeal before him. An opportunity should be afforded to the parties to argue the appeal and the case be decided anew. The costs of this appeal shall abide by the result of the decision to be given by the District Judge. Appeal allowed.