Shamsher Bahadur ( 1 ) THIS is a plaintiffs appeal from the judgment and decree of the Additional District Judge, Delhi, who in the appeal filed by Shrimati Nando, widow of the first defendant (Risal Singh), has dismissed the suit, which had been decreed by the trial Judge on 13th of August 1956. The second appeal was placed for disposal before a Division Bench under the rules as they then existed and it came for hearing in the first instance on 30th and 31st of July 1963 before Mahajan, J. and myself. The haering was adjourned to 30th of September 1963 as Mr. D. K. Kapur, the learned counsel for the appellants, wanted to produce certain documents. In the order of the Bench of 30th of September 1963 it was. directed that the documents. Exhibits P. 20 and P. 21, should be placed on. record and it was thought expedient to hear the whole matter as a first appeal by this Court instead of the case being remanded to the lower appellate Court for redetermination after a consideration of the further evidence which had been placed on record. It is in. these circumstances that this matter has been heard as a first appeal by this Bench. ( 2 ) A brief history of this litigation, may first be given. The suit was brought by Shrimati Ram Kaur, widow of Nanu Singh, and Raj Singh for possession as owners by purchase of the suit-property consisting of a house in Mohalla Jatwara, Pul Mithai, Delhi, the first two defendants being Risal Singh and his son Inderjit Singh, representatives-in-interest of the transferees, and defendants 3 to 5, Het Ram, Lachhmi Narain and Shrimati Lodhi, as the tenants. The suit property is one of the four houses which belonged to Kesho Ram, son of Zalam Singh. Tek Chand is the first cousin of Kesho Ram his father Meda Singh being the brother of Zalam Singh. In the plaint it was averred that Kesho Ram and Tek Chand between themselves owned four houses in Mohalla Jatwara. Pul Mithai, which were at first mortgaged with one Prabhu Dayal. Tek Chand is the first cousin of Kesho Ram his father Meda Singh being the brother of Zalam Singh. In the plaint it was averred that Kesho Ram and Tek Chand between themselves owned four houses in Mohalla Jatwara. Pul Mithai, which were at first mortgaged with one Prabhu Dayal. These houses were further mortgaged with Nanu Singh, who in a suit filed for the recovery of the mortgage money was granted the ownership of the four houses on 18th of March 1914 and on 12th of April 1914a sale deed was executed by Shrimati Man Kaur, widow of Kesho Ram, and Tek Chand in favour of Nanu Singh. According to the plaintiffs, these four houses were acquired by Nanu Singh in 1914 and since then he had continuously remained in possession of them through tenants. After Nanu Singh s death in 1918, a probate of his will was obtained by Shrimati Ram Kaur his widow, as beneficiary, and Raj Singh, his sister s son, the second plaintiffs as the executor. According to the plaintiffs, the property in suit, which is one of the four houses, was mentioned in the will of Nanu Singh amongst the various items bequeathed in favour of the plaintiffs. The ground floor of this house, according to the plaintiffs, had been in possession of defendants 3, 4 and 6, while Tek Chand was in occupation of the first floor. Tek Chand died in the house in 1950, and the first two defendants having thereafter taken unlawful possession of the house, the plaintiffs were constrained to bring the present suit for its possession. ( 3 ) ONLY the first two defendants have contested the suit and it is pleaded that the suit is bared by time, the plaintiffs not having been in possession for a period exceeding twelve years before the filing of the suit. It was also claimed that the suit-property had been with the defendants by adverse possession. Tek Chand s title to the property was denied and it was pleaded that Kesho Ram was the sole owner of the four houses in Mohalla Jatwara. The existence of mortgages was denied and it was further pleaded that they were without consideration and legal necessity, the property in dispute being ancestral property in the hands of Kesho Ram. Tek Chand s title to the property was denied and it was pleaded that Kesho Ram was the sole owner of the four houses in Mohalla Jatwara. The existence of mortgages was denied and it was further pleaded that they were without consideration and legal necessity, the property in dispute being ancestral property in the hands of Kesho Ram. According to the defendants, Nanu Singh and Tek Chand had conspired to fabricate certain documents, which should not be given effect to as Shrimati Man Kaur, who was a pardanashin lady had been unduly influenced by Tek Chand, an employee of Nanu Singh. The following issues were framed by the trial Judge :- 1. Was Tek Chand also the owner of the house in suit ? 2. Did Choudhary Nanu Singh, husband of plaintiff No. 1, purchase the house in suit validly by means of sale deed. , dated 12th of April 1914? 3. If issue No. 1 is not proved and issue No. 2 is proved is plaintiff No. 1 not the owner of the house in suit. 4. Was Tek Chand deceased in occupation of the upper floor of the house in suit as a tenant under the plaintiffs up to the date of his death. 5. Are defendants 3 to 5 in occupation of the ground floor as tenant under the plaintiffs ? 6. If issues Nos. 4 and 5 are not proved, is the suit within time 7. Whether the defendants Nos. 1 and 2 have become the owner of the house in suit by. adverse possession ? Only the first issue was decided against the plaintiffs, it having been held that Tek Chand was not the owner of the house in suit. The other issues were decided in favour of the plaintiffs and in the result the suit instituted on 7th of March 1950 was decreed by the trial Judge on 13th of August 1956. ( 4 ) IN appeal Mr. Barlow, the learned Additional District Judge, declined to make a presumption under section 90 of the Indian Evidence Act in respect of certain documents, and being of the view that the oral evidence had not established the case of the plaintiffs, allowed the appeal and dismissed the suit of the plaintiffs. ( 4 ) IN appeal Mr. Barlow, the learned Additional District Judge, declined to make a presumption under section 90 of the Indian Evidence Act in respect of certain documents, and being of the view that the oral evidence had not established the case of the plaintiffs, allowed the appeal and dismissed the suit of the plaintiffs. ( 5 ) THE second appeal of the plaintiffs originallly came before Mahajan, J. and myself and has now been placed before this Bench for disposal in the circumstances which have already been narrated. It needs to be mentioned that after the order of30th of September 1963 of Mahajan, J. and myself, Shrimati Ram Kanr has died and Raj Singh in consequence is now the single appellant before us as an executor and the surviving. beneficiary under the will of Nanu Singh. At the time of hearing before Mahajan, J. and myself it was urged by Mr. Kapur that certain important documents had been left out of consideration and two others had not been taken in evidence. Instead of remanding the case we decide to admit the two documents, which had not been taken into account, as Exhibits P. 20 and P. 21. Exhibit P. 20 is acopy of registered will of 6th of January 1918, while Exhibit P. 21 is acopy of registered deed of mortgage of 2nd of January )911, executed by Shrimati Man Kaur for herself and as guardian of her minor son Risal Singh in favour of Nanu Singh. As the whole case is to be heard as a first appeal, it would be well to set its perspective as it appears from the documents adduced by the parties. ( 6 ) THE earliest document is Exhibit P. 16, which is a rent-deed of 21st of June 1895 executed by Kesho Ram in favour of Lachhu Singh. It appears from the recital of this document that the executant had mortgaged his house in Pul Mithai with Lachhu Singh for a sum of Rs. 400. 00 vide registered mortgage-deed of 14th of June, 1895. Kesho Ram, however, decided to remain in occupation of the house as a tenant of the mortgagee on payment of Rs. 5. 00 per mensem as rent. The next document is Exhibit P. 1 of 17th of April, 1899. 400. 00 vide registered mortgage-deed of 14th of June, 1895. Kesho Ram, however, decided to remain in occupation of the house as a tenant of the mortgagee on payment of Rs. 5. 00 per mensem as rent. The next document is Exhibit P. 1 of 17th of April, 1899. This is a registered mortagage deed by Kesho Ram in favour of Prabhu Dayal for a sum of Rs. 800. 00 Mention is made of the four houses in Pul Mithai and details of the four houses are elaborately given. It is the case of the plaintiffs that one of these houses, in an area of 550 square yards, approximates with the house which is now in dispute. It is mentioned in this document that an earlier mortgage in favour of Lachhu Singh for a sum of Rs. 400. 00 had to be redeemed and accordingly the four houses had been placed under mortgage with Prabhu Dayal. On the basis of this mortgage deed, Prabhu Dayal later filed a suit for recovery of Rs. l,500. 00 (Rs. 800. 00 as principal and the remainder as interest ). The plaint is Exhibit P. 3 and defendants are Risal Singh, minor son of Kesho Ram, and his mother Shrimati Man Kaur. It was mentioned in this plaint that one of the four houses had been sold by the mortgagor and another house had been substituted in the mortgage deed for the one which was sold. While this case was pending. Shrimati Man Kaur was appointed guardian, of the minor according to the order of the Court passed on 9th of June 1908 (copy Exhibit P. 12) Tek Chand unsuccessfully tried to be made a guardian of Risal Singh and it is for this reason perhaps that later on he also came to be associated as an owner. Nothing, however, turns in the circumstances as it is conceded by both parties that Tek Chand had no title as an owner in the house in dispute A decree was passed in favour of Prabhu Dayal by Mr. J. P. Thomson, District Judge, Delhi, on 22nd of March 1909 (copy Exhibit P. 6 ). Tek Chand as a nephew of Zalam Singh, had his claim rejected in this judgment and a decree was passed in favour of Prabhu Dayal for a sum of Rs. l,500. 00 on the basis of the mortgage. J. P. Thomson, District Judge, Delhi, on 22nd of March 1909 (copy Exhibit P. 6 ). Tek Chand as a nephew of Zalam Singh, had his claim rejected in this judgment and a decree was passed in favour of Prabhu Dayal for a sum of Rs. l,500. 00 on the basis of the mortgage. Tek Chand tried to have the decree set aside by sitting himself as a reversioner and his plaint is marked as Exhibit P. 13 and was filed on 22nd of February 1910. The next important document is Exhibit P. 21, which is of 2nd of January 1911 and has been taken as additional evidence. This is a mortgagedeed, executed by Shrimati Man Kaur in favour of Nanu Singh. Tek Chand is joined in this mortgage-deed, presumably because his suit was pending, though eventually he was declared to have no right in this property. According to this mortgage-deed, the four houses, including the one in dispute, were mortgaged in favour of Nanu Singh for a period of four years and it was mentioned that three of the houses had been attached in execution of a decree, with costs amounting to Rs. 1,682/1/3 in favour of Prabhu Dayal. The mortgage was for Rs. 1,800. 00 It may be mentioned that the boundaries of the second house described in the mortgage-deed are the same as of the one in the present suit, the northern side being adjacent to the house of Makhan Lal the western wall being common with the house of Hazari Singh in the east being a blind lane and on the south being a common kucha Tek Chand was also joined, as already mentioned, as a mortgagor. Exhibit P. 5 is a rent note of 3rd of January 1911 in favour of Nanu Singh. In this document also the history of the mortgage is given. The mortgagors themselves became tenants of the mortgagee. ( 7 ) WE now come to the sale-deed. Exhibit P. 4, which forms the basis of the plaintiffs suit. This was executed on 12th of April 1914 by Man Kaur for herself and as gurdian of her minor son Risal Singh in favour of Nanu Singh for a sum of Rs. 2,500. ( 7 ) WE now come to the sale-deed. Exhibit P. 4, which forms the basis of the plaintiffs suit. This was executed on 12th of April 1914 by Man Kaur for herself and as gurdian of her minor son Risal Singh in favour of Nanu Singh for a sum of Rs. 2,500. 00 It was mentioned that the payment of the previous mortgages was the consideration for the sale and it was also recited that the sale was being effected according to "mutual agreement. " This is a registered document and the parties admitted payment and consideration money before the sub-Registrar. It needs also to be mentioned that all the four houses are detailed in the sale-deed and Makhan Lal s house is shown on the northern side of one of the houses and on the west there is the house of Hazari Singh, I mention these details about boundaries as it is now the case of Mr. Bali that the boundaries of the house in dispute do not tally with the earlier documents of title relating to it. This was followed by a rent-note. Exhibit P. 8 of 4th of June 1914, executed by Tek Chand and Shrimati Man Kaur in favour of Nanu Singh. It appears that Shrimati Man Kaur still remained in possession of the house, and Tek Chand, perhaps as a matter of abundant caution was also shown as a mortgagor. ( 8 ) THE other document admittedly in evidence is the will which comes next in the chronological order. By this will, which is a registered document of 6th January 1918, Nanu Singh left his entire property, which was considerable, to his wife, and his sister s son. Raj Singh, was made the executor and was to gain as a beneficiary on the death of Shrimati Ram Kaur without heirs. The house in dispute is described as a doublestroyed house, in which, according to the will, Tek Chand was living as atenant. This is one of the many items of property bequeathed by Nanu Singh. It may be mentioned that the house in dispute is described as house No. 56. The probate of this will was obtained from the Court of Mr. A. N. Bhandari (as he then was)on 10th of January 1939. This is one of the many items of property bequeathed by Nanu Singh. It may be mentioned that the house in dispute is described as house No. 56. The probate of this will was obtained from the Court of Mr. A. N. Bhandari (as he then was)on 10th of January 1939. ( 9 ) BEFORE discussing the oral evidence in the case, it may be mentioned as a common ground between the parties that Het Ram, Lachhmi Narain and Shrimati Lodhi were the tanants of the lower portion, while Tek Chand was living in the upper portion of the house. According to the case set out in the plaint, Tek Chand alone was living in the upper portion but it seems more likely that he was sharing accomodation with the other mortgagors. Both Het Ram and Lachhmi Narain, who are defendants 3 and 4, respectively, have appeared as witnesses for the plaintiff and have deposed that they have been tenants of the house under the plaintiffs. The evidence has been discussed in detail by the lower Courts and with regard to as appraisal we are in complete agreement with the conclusion reached by the trial Judge that these witnesses were in fact the tenants of the plaintiffs. The defendants have claimed that they were tenants under them. Het Ram is a Government servant and he so stated that the receipt which he obtained from the plaintiffs had been filed with the Department. It is true that according to the second plaintiff, accounts had been rendered to the District Judge about the money which had been received from Nanu Singh s estate in persuance of the probate. These account books have not been produced and this, coupled with the failure of the tenants to produce the rent receipts, has induced the learned lower appellate Court to hold that tenancy in favour of the plaintiffs had not been established. It may be observed that for precisely similar reasons the tenancy in favour of the tenants cannot be accepted either. In this situation the documents assume decisive importance. They show that the property originally belonged to Kesho Ram and had been successively mortgaged with Lachhu Singh and Prabhu Dayal and eventually with Nanu Singh The mortgage-deed and sale-deed show that consideration had been paid before the sub Registrar. In this situation the documents assume decisive importance. They show that the property originally belonged to Kesho Ram and had been successively mortgaged with Lachhu Singh and Prabhu Dayal and eventually with Nanu Singh The mortgage-deed and sale-deed show that consideration had been paid before the sub Registrar. In these circumstances the presumption under section 90 of the Indian Evidence Act was rightly drawn in favour of the plaintiffs by the learned trial Judge and the conclusion of the learned additional District Judge on this aspect of the case is clearly erroneous. Under section 90- "where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person s handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. "the attesting witnesses have not come forward to support Exhibit P. 4 But it may be mentioned that Ram Narain has admitted that his father Ganeshi Lal had written the document Exhibit P. 4. Similarly the mortgage-deed, exhibit P. 1, of 17th of April 1899, had been proved by Makhan Lal P. W. 4, who is about 80 years of one. He deposed that he had signed the deed as a marginal witness. Mr. Bali, the learned counsel for the defendants, has drawn our attention to the weighty observations. of Mookerji ; J. , in the judgment delivered by him, sitting with Rankin, J. , in Swarnamovi v. Sourindra Nath- "mere production of an ancient document, unless supported by some corroborative evidence of acting under it is not entitled to any weight. An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or explanatory proof. "it is submitted that there is no evidence of any contemporaneous enjoyment and, therefore, its mere production cannot be taken in subsitution of proof. An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or explanatory proof. "it is submitted that there is no evidence of any contemporaneous enjoyment and, therefore, its mere production cannot be taken in subsitution of proof. Now, it has been found from unimpeachable evidence of these documents that mortgages of four houses, inculding the one in dispute, had been effected by the mortgagors to three successive mortgagees rent-deeds have been produced to show that the mortgagors still remained in possession ; the considerations for the mortgages had been admitted by the Sub-Registrar and eventually all these transactions found a place in the sale-deed itself. In our view there cannot be a stronger case of raising a presumption under section 90 of the Evidence Act. Reliance has also been placed on a Bench decision of the Lahore High Court in Khazan Singh v. Mt. Lachhmi, where it was held that when a document has been admitted in evidence by a trial Court, the appellate Court is slow in interfering with the discretion unless its exercise is perverse. Though this case is cited by Mr. Bali to support the propositions that the lower appellate Court had rightly exercised its discretion this is equally applicable to the discretion exercised by the first Court, as we are dealing with the entire matter as an appeal from its decree. Mr. Bali further submits that the original of Exhibit P. 4. not having been produced, presumption cannot be attached to the document. He has cited the Privy Council case of Basant Singh v. Brij Raj Saran, where Lord Thankerton speaking for the Board said at page 136 that if the document produced is a copy admitted under section 65 as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be persumed to be genuine, but it is not sufficient to justify the persumption of due execution of the original under section 90. Now the objection in the specified form bad never been raised by the defendants and it cannot be said at this stage that the original mortgage-deed had been deliberately withheld: The existence of the mortgages can however, be deduced by evidence aliunde in the shape of rent-deeds and decrees to which reference has been made. Now the objection in the specified form bad never been raised by the defendants and it cannot be said at this stage that the original mortgage-deed had been deliberately withheld: The existence of the mortgages can however, be deduced by evidence aliunde in the shape of rent-deeds and decrees to which reference has been made. The sale-deed after all shows how the property eventually came to be sold in favour of Nanu Singh, whose title in the property appears to have been well established. ( 10 ) IT has also been argued on behalf of the defendant that the document executed by Shrimati Man Kaur has to be looked at with caution. , It is of course true that the burden of proof is always upon the person who speaks to sustain a transaction entered into with a pardanashin lady to establish that the document was executed by her alter clearly understanding the nature of the transaction: vide Mt. Kharbuja kuer v. Jungbahadur Raj. Tek Chand may have tried to get his foothold as an original claimant in the suit property, but this circumstance cannot be used in support of the conclusion which is sought to be deduced that he in collusion with Nanu Singh managed to perpetrate a fraud on Shrimati Man Kaur, a pardanashin lady. To hold so would be to ignore the entire history of transaction. No attempt has been made to efface the existence of the previous mortgages. There was pressure on the estate of Kesho Ram and it was attempted to ward it off by sale of the property for so long as it was possible. The propety was put under mortgage successively on three occasions and eventually it came to be sold as a result of the pressure on the estate. There is not a scintilla of evidence to suggest the use of undue influence on the transferor. Tek Chand may have been an employee of Nanu Singh, but it has been seen that right till the time of his death in 1950 no attempt was made to challange the genuineness of the sale-deed. Being of the view that the tenants, defendants 2 to 5, had been in possession of the suit-property, the question of adverse possession hardly arises. ( 11 ) IT remains to say a few words about another plea which has been very vehemently raised by Mr. Bali for the defendants. Being of the view that the tenants, defendants 2 to 5, had been in possession of the suit-property, the question of adverse possession hardly arises. ( 11 ) IT remains to say a few words about another plea which has been very vehemently raised by Mr. Bali for the defendants. It is true that there has been no uniformity about the municipal number of the house as found in the previous documents. But the boundaries, as I have pointed out, are substantially the same as are set out in the plaint and the earlier documents. Much time has been expended by Mr. Bali in developing this point, but when he was confronted with the position that some property had been sold by the mortgagors and there is no other house in Pul Mithai which was sold to the plaintiffs, the conclusion becomes inescapable that what was sold to the plaintiffs was the house in dispute and nothing else. Het Ram and Lachmi Narain, who were admittedly tenants in the house, are not interested in giving evidence for the plaintiffs and against the defendants and there is no reason why their testimony should not be accepted. Het Ram may have been trying to take advantage of the dispute between the parties by negotiations, but it does not detract from his evidence which is otherwise trustworthy ; similarly Lachhmi Narain might have been living in the dharamshala belonging to the plaintiffs but it has to be remembered that the defendants witnesses themselves have admitted him to be a tenant of the house in question. The non production of rent-deeds and account-books by both parties should be looked alike, and in such a situation tlie convincing evidence of document should he given due weight, and in this view of the matter we think that the suit of the plaintiffs was rightly decreed by the trial Judge and wrongly dismissed by the lower appellate Court. We would accordingly set aside the judgment and decree of the lower appellate Court and restore that of the trial Judge. In the circumstances there whould be no order as to costs. ( 12 ) I agree