JUDGMENT 1. - The facts giving rise to this appeal by the defendants lie within a narrow compass, and may be stated as below. The house, which is the subject matter of the dispute in present case, was admittedly owned by Bhonri Lal, who had inherited the same from his ancestors. There is also no dispute between the parties that Bhonrilal was married to respondent No.2, Rama Devi, and Chandmal, respondent No. 3 was born to them out of this wedlock. It further appears that Bhonrilal and Mst. Rama Devi fell out with the result that Rama Devi and Chand Mal started living separately from Bhonri Lal, and Bhonri Lal, according to the defendant, married with a woman of another community named Gyarsi Devi, and son Kailash was borne to them. On 12.11.1960,Bhonrilal mortgaged the house in question in favour of Bandu Khan appellant No.1, and it was mentioned in the mortgage deed that the mortgage was being made by Bhonrilal in his personal capacity, as well as in the capacity of guardian of minor son Kailash. Bhonrilal died on 3rd March, 1963, and after about five years of his death, his widow Mst. Rama Devi, and their son Chandmal entered into an agreement with Suraj Devi, respondent No. 1 to sell the house in question to her, and actually sold it on 7.10.68 by a registered sale deed. Soon after the purchase, Mst. Suraj Devi filed the present suit for redemption of the mortgage against Bandu Khan and impleaded Rama Devi and Chandmal as proforma defendants in the suit. 2. The suit was resisted by Bandu Khan, inter alia, on the ground that Kailash was also a mortgagor and since Kailash and all the heirs of Bhonrilal had not joined in making the sale of the property in question Suraj Devi, did not acquire the right to redeem the mortgage. Kailash was, however, impleaded as a party to the suit. 3. After recording the evidence produced by both the parties, the trial court decreed the suit for redemption of mortgage. Aggrieved by the judgement and decree by the trial court. Bandu Khan and Kailash Chand filed appeal in the Court of Addl. District Judge, Jaipur and since final decree had been passed mean while, they also preferred an appeal from the final decree. Aggrieved by the judgement and decree by the trial court. Bandu Khan and Kailash Chand filed appeal in the Court of Addl. District Judge, Jaipur and since final decree had been passed mean while, they also preferred an appeal from the final decree. Both the appeals came up together for hearing before the learned Additional District Judge No.1, Jaipur, who by his judgement dated 24th August, 1973 upheld the judgements and decrees by the trial court. Here, only one appeal has been preferred by the defendants against both the appellate decrees. 4. When the case came up for hearing before my learned brother Kan Singh J, he was of the opinion that it was a fit case in which the evidence of Smt. Gyarsi Devi, mother of Kailash, should be recorded. Accordingly, Mst. Gyarsi Devi was summoned, and I recorded her statement on 6th of February,1974. Her statement has been marked as Ex. X. 5. After having heard the learned counsel for both the parties, I find that the two main points, which call for decision in this case, are:- (1) Whether Gyarsi Devi was lawfully married to Bhonrilal; and (2) If so, whether Kailash is the son of Bhonrilal. 6. It may be stated here that at one time, the plaintiff came forward with a case that Chandmal and Kailash were one and the same person. This plea of the plaintiff has been found to be false by the learned Additional District Judge, Jaipur, and I agree with her on this point. I may also observe that even the learned counsel for the plaintiff-respondent did not endeavour to assail that finding, and in my opinion lightly so. 7. Now, coming to the point, whether Mst. Gyarsi Devi was lawfully married to Bhonrilal, the only evidence worth the name on the point is the statement of Mst. Gyarsidevi recorded in this Court. She admitted that Bhonrilal was a Tamboli by caste, whereas she belonged to the community of carpenter. She states that her first husband Rampal, carpenter died when she was only 11 years old; and thereafter through one Mst. Phulan Malin she negotiated widow-marriage with Bhonrilal. She has also stated her marriage with Bhonrilal took place according to rituals of Arya Samaj, and one Pandit Gopal performed the ceremonies. She further stated that about 20 to 25 persons witnessed the marriage. Phulan Malin she negotiated widow-marriage with Bhonrilal. She has also stated her marriage with Bhonrilal took place according to rituals of Arya Samaj, and one Pandit Gopal performed the ceremonies. She further stated that about 20 to 25 persons witnessed the marriage. Surprisingly enough, not a single witnesses has been examined, who may have been present at the time of marriage ceremony, nor any of the relations of Mst. Gyarsi Devi or Bhonrilal have been produced in proof of the alleged marriage. In the course of cross examination she stated that at the time of performance of the marriage, Smt. Rama Devi, first wife of Bhonrilal, was also present, and she did not have any objection to her marriage with Bhonrilal. She goes on to state that a day before the marriage, she went to Rama Devi, and in her presence Bhonrilal asked Rama Devi if she had any objection to Gyarsi Devi being accepted as his wife; but Rama Devi gave her consent. She further states that she did not know up to the date of her marriage with Bhonrilal, that his relations with his first wife were not happy. All this appears to me to be most unnatural. She admits that her two elder brothers are alive. But none of them has been produced. I am firmly of the opinion that no reliance can be placed on her statement. The alleged event of marriage with Bhonrilal is not so old so as to raise a presumption that all conceivable evidence regarding it may have disappeared. No evidence of general reputation that Bhonrilal and Gyarsi Devi were being treated as husband and wife by their relations and friends, has been placed on record. On the other hand, DW.3 Pyaridevi, mother of Bhonrilal, has stated in clear terms that Bhonrilal did not marry with Gyarsi Devi, but she lived in his house as his concubine. DW.4 Om Prakash, brother of Bhonrilal also does not support the alleged theory of Gyarsi's marriage. he states that no marriage of Bhonrilal took place in his presence, and that he does not know whether Gyarsi Devi's husband with whom she was really married is alive or dead. DW.4 Om Prakash, brother of Bhonrilal also does not support the alleged theory of Gyarsi's marriage. he states that no marriage of Bhonrilal took place in his presence, and that he does not know whether Gyarsi Devi's husband with whom she was really married is alive or dead. DW.2 Navi Bux, another witness produced by the defendant Bandu Khan also does not advance the defendant's case at all, in as much as he stated that he is not in a position to say as to in what capacity Gyarsi Devi was living with Bhonrilal. DW.1 Kailash who is the most interested person in proving his mother Gyarsi's marriage with Bhonrilal, has rather demolished his own case in as much as he has stated in his cross examination that he does not know with whom his mother was married, because at the time of her marriage he was a minor, and towards the end of this cross-examination he further reiterates that he was a minor when his mother was married to Bhonrilal. Thus, it is clearly established that he is not the son of Bhonrilal. 8. At this stage, I may also point out that there is absolutely no evidence except the statement of Gyarsi Devi that Kailash was borne to her out of her wedlock with Bhonrilal. As I have already mentioned above, the statement of Gyarsidevi does not at all inspire confidence. The evidence on the record is, therefore, wholly insufficient to come to the conclusion that Mst. Gyarsidevi was married to Bhonrilal and that Kailash was borne to Gyarsidevi out of that marriage. 9. Learned counsel for the appellant laid stress on the fact that Bhonrilal had himself mentioned Kailash as his son in the mortgage-deed, and that plaintiff Mst. Suraj Devi had raised a false case that another name of Chand Mal was Kailash, and therefore, adverse inference must be drawn against them. It is, no doubt, true that Bhonrilal has described Kailash as his son. But that statement is explicable on the hypothesis that Mst. Gyarsidevi was living with Bhonrilal, and was in his exclusive keeping, and since Bhonrilal had fallen out with his married wife Rama Devi, he preferred to mention the name of Kailash as his son in the mortgage deed, and ignored Chandmal, his own son born out of her marriage with Rama Devi. Gyarsidevi was living with Bhonrilal, and was in his exclusive keeping, and since Bhonrilal had fallen out with his married wife Rama Devi, he preferred to mention the name of Kailash as his son in the mortgage deed, and ignored Chandmal, his own son born out of her marriage with Rama Devi. There is no clear admission in the mortgage deed by Bhonrilal that Kailash was born to him by his marriage with Gyarsidevi. He has only described Kailash as his son and, this sort of description is not conclusive in the matter. Apart from that Mst. Rama Devi and Chandmal and for that matter their successor-in-title. Suraj Devi are not bound by the recital in the mortgage deed. I am therefore, unable to hold on the basis of the mortgage deed that Bhonrilal was married to Gyarisidevi and Kailash was born to them. It is, no doubt, true that Rama Deviant introduced a lie that Chandmal was also known as Kailash; but this was done presumably to nullify the fact of mention of the name of Kailash in the mortgage deed. However, for telling that lie, the defence of the defendant cannot be accepted when it remains wholly unsubstantiated. 10. The result is that both the point on which the decision of this appeal depends have to be answered against the defendant appellant. Accordingly, I dismiss the appeal, but in the circumstances of the case, I make no orders as to costs. 11. Learned counsel for the appellant prays for certifying the case to be a fit one for appeal to Division Bench. The prayer is refused. *******