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PETITIONER: ISHWAR DASS JAIN (DEAD) THR.  LRS.

       Vs.

RESPONDENT: SOHAN LAL (DEAD)BY LRS.

DATE OF JUDGMENT:       29/11/1999

BENCH: M.Jagannadha Rao, M.B.Shah

JUDGMENT:

     M.  JAGANNADHA RAO,J.

     The  appellants  are the legal representatives of  the mortgagor,  the original plaintiff in suit No.388 of 1981 on the  file of the Sub-Judge, Ist Class, Panipat, who sued for redemption  of the usufructory mortgage dated 15.4.1969  and for  possession.  The suit was dismissed by the Trial  Court on  12.2.85,  by the first appellate Court (appeal 47/13  of 1985)  on  2.11.85 and by the second appellate Court (  RSA. NO.    797   of  1986)  on   6.10.86  on  the  ground   that notwithstanding  the  fact that the defendants executed  the registered mortgage deed on 15.4.1969, the real relationship between  the parties was as landlord and tenant and that the defendant could not be evicted except under the Rent Control law.

     The  plaintiff’s case was that he mortgaged the entire shop  and his 5/6th share therein and gave possession of the whole  shop to the defendant for Rs.1,000/-.  Plaintiff sued for redemption and recovery of possession from the defendant on  the abovesaid registered usufructory mortgage.  Interest payable  by  the  mortgagor was to be set  off  towards  the profits  arising from use of property by the mortgagee.  The mortgage deed stated that on redemption possession had to be delivered  back to the mortgagor.  On 1.2.1981 the plaintiff demanded   production   of  the   deed  and  possession   on redemption.   The defendant did not comply.  Therefore,  the present suit was filed.

     The  defence  was  that there was no  relationship  of mortgagor  and  mortgagee between the parties but  that  the relationship  was  as  landlord   and  tenant.    Defendant, however,  admitted that the shop was in exclusive management of  plaintiff at the time possession was given to him.   The plaintiff  allegedly leased to the defendant at Rs.80/- P.M. and  plaintiff  had  been  receiving at  that  rate.   These payments,  it  was said, were proved by the accounts of  the defendant.   The motive for executing the deed was stated as follows:

     "The  plaintiff,  further demanded that the  defendant will  have to execute the mortgage deed by way of collateral security in order to guarantee that the shop will be vacated by  the  defendant whenever demanded by the  plaintiff.   In

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fact,  the  said mortgage deed was to circumvent and to  bye pass  the  provisions of the Rent Control Legislation.   The alleged  transaction of mortgage was only a sham transaction executed  only with the aforesaid object.  The consideration of  Rs.1000/-  was only in nature of collateral security  or pagri."

     It  was  also alleged that the plaintiff was a man  of substance and very rich and there was indeed no occasion for him  to mortgage the same for a petty sum.  The plaintiff is alleged  to have "demanded Rs.1000/- by way of security  and asked  the  defendant to thumb mark some writing to arm  the plaintiff  with a right to get the shop vacated according to his sweet will".  The defendant was in dire necessity of the shop and had to agree on the said condition.  The defendant, therefore,  paid  Rs.1000/-  and  incurred  Rs.80/-  towards expenses.  The alleged mortgage was not the real transaction but it was a clever device to bye-pass the provisions of the Rent  Act".   The  suit of the plaintiff was  liable  to  be dismissed.   The trial Court considered the question whether the  mortgage  was proved.  It initially observed  that  the "plea  of  the  learned counsel for the defendant  that  the plaintiff  was  a rich man and there is no need to  mortgage the  shop, ...., cannot be accepted.  Even if the  plaintiff is  rich  person, he can mortgage the suit  property".   The plaintiff  was  not  bound to plead that  he  was  suffering losses  but he could lead evidence.  Having so observed, the trial Court stated that the defendant "produced his books of account"  to show that he was paying various amounts to  the plaintiff  every  month,  ranging from Rs.20/-  to  Rs.80/-, "though  it  is  not mentioned as to why  the  defendant  is paying  the  said  amount  to   the  plaintiff".   On  these accounts,  the  plea  of payment of rent was  founded.   The trial  Court  then made an observation contrary to  what  it said earlier, as follows:

     "the  learned counsel for the defendant contended that the  plaintiff  is  a  well to do man and  no  person  would mortgage his shop with the defendant for petty amount of Rs. 1000/-.   I find force in this contention, and plaintiff  is not a poor man."

     The Court then concluded that the defendant was paying to  plaintiff some amount every month, towards "rent" at the rate   of  Rs.80/-  and  that   the  mortgage  was  a   sham transaction.  The suit was, therefore, dismissed.

     On  appeal, the appellate Court proceeded on the basis that  the  mortgage was proved.  It confirmed the decree  of the  trial Court and observed that the plaintiff had only  a half  share  and could not have mortgaged the share  of  his wife  though  plaintiff might have been in management,  that the defendant’s "accounts" showed he had been paying Rs.80/- P.M.  to plaintiff though no receipt was issued or obtained. This was for the period 16.4.69 to 12.3.81.  The first entry showed  defendant  paid Rs.1000/- to plaintiff in  cash  and Rs.80/-  as  rent  in advance and Rs.80/-  as  miscellaneous expenditure.  The Court observed that the plaintiff "got the mortgage deed...executed from defendant so that he could get the  disputed  shop vacated at his sweet will".   The  Court also  observed:  "Needless to say that the disputed shop was mortgaged  for a petty sum of Rs.1,000/- whereas the rent of the  disputed property was Rs.80/- per month".  The property was  very  valuable  and could not have been  mortgaged  for

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Rs.1000/-.   The  Municipal Register showed  respondent  was occupying  the  property.   Rental  value  was  assessed  at Rs.824/-.   On  the  above reasoning, it was held  that  the mortgage  was a sham document and that the defendant was  in reality a tenant.  The appeal was dismissed.

     The  High  Court dismissed the Second  Appeal  without reasons.   It is these judgments that are questioned in this appeal.

     We have heard the appellants in person and the learned counsel for the respondents.  The following points arise for consideration:   (1)  Whether the High Court  can  interfere under  section  100  CPC ( as mentioned in  1976)  with  the findings  of fact arrived at by the lower appellate Court if vital  evidence  which  could  have   led  to  a   different conclusion  was  omitted  or if  inadmissible  evidence  was relied  upon which if omitted, could have led to a different conclusion?   (2)  Whether  on the facts of  the  case,  the mortgage  was  proved  by the plaintiff by production  of  a certified  copy  of the deed?  (3) Whether Section 92(1)  of the Evidence Act could be a bar for proving a document to be a  sham document?  (4) Whether the Exs.  D2 to D5 were  only extracts  from  accounts books and could not be  treated  as account books for purposes of Section 34 of the Evidence Act and  were not admissible?  (5) Whether the lower Courts  had omitted  vital evidence from consideration?  (6) Whether the mortgagee  who  got possession of the entire property  under the deed of mortgage could be permitted to deny the title of the mortgagor either wholly or partly?  (7) What relief?

     POINT 1:

     Ordinarily,  this  Court does not go into findings  of fact  in  exercise of its jurisdiction under Article 136  of the  Constitution of India, particularly in appeals  against judgment  in Second Appeals decided by the High Courts under section 100 of the Code of Civil Procedure.  But, in certain exceptional   cases,  this  Court   will  not  hesitate   to interfere,  if  interference is called for and if  the  High court  has  failed  to interfere under section  100.   After hearing the appellants in person and the learned counsel for the respondent, we are of the view that this is one of those exceptional  cases in which interference is called for  even within the narrow parameters of section 100 CPC.

     Now  under section 100 CPC, after the 1976  amendment, it   is  essential  for  the   High  Court  to  formulate  a substantial  question  of law and it is not  permissible  to reverse  the  judgment of the first appellate Court  without doing so.

     There  are  two situations in which interference  with findings  of  fact  is permissible.  The first one  is  when material  or  relevant evidence is not considered which,  if considered  would have led to an opposite conclusion.   This principle  has  been laid down in a series of  judgments  of this  Court  in relation to section 100 CPC after  the  1976 amendment.   In Dilbagrai Punjabi vs.  Sharad Chandra  [1988 Supple.   SCC  710], while dealing with a Second  Appeal  of 1978  decided  by the Madhya Pradesh High Court on  20.8.81, L.M.Sharma, J.(as he then was) observed that

     "The Court (the first appellate Court) is under a duty

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to  examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on  the  disputed issue and the error which arises as  of  a magnitude  that it gives birth to a substantial question  of law,  the  High Court is fully authorised to set  aside  the finding.  This is the situation in the present case."

     In  that case, an admission by the defendant-tenant in the  reply notice in regard to the plaintiff’s title and the description  of  the  plaintiff as ‘owner’ of  the  property signed  by  the defendant were not considered by  the  first appellate  Court  while holding that the plaintiff  had  not proved  his  title.   The  High Court  interfered  with  the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision.  That was upheld. In  Jagdish Singh vs.  Nathu Singh [1992 (1) SCC 647],  with reference  to  a  Second  Appeal  of  1978  disposed  of  on 5.4.1991.  Venkatachaliah, J.  (as he then was) held:

     "where  the findings by the Court of facts is vitiated by   non-consideration  of  relevant   evidence  or  by   an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."

     Again  in  Sundra Naicka Vadiyar vs.  Ramaswami  Ayyar [1995  Suppl.  (4) SCC 534], it was held that where  certain vital documents for deciding the question of possession were ignored  -  such  as a compromise, an order of  the  revenue Court  - reliance on oral evidence was unjustified.  In  yet another  case in Mehrunissa vs.  Visham Kumari [1998 (2) SCC 295]  arising  out  of  Second appeal  of  1988  decided  on 15.1.1996,  it was held by Venkataswami, J.  that a  finding arrived  at  by  ignoring the second notice  issued  by  the landlady and without noticing that the suit was not based on earlier  notices,  was  vitiated and the  High  Court  could interfere with such a finding.  This was in Second Appeal of 1988  decided  on 15.1.1996.  The second situation in  which interference with findings of fact is permissible is where a finding  has  been  arrived  at by the  appellate  Court  by placing  reliance  on inadmissible evidence which if it  was omitted,  an opposite conclusion was possible.  In Sri Chand Gupta vs.  Gulzar Singh [1992 (1) SCC 143], it was held that the  High  Court was right in interfering in  Second  Appeal where  the lower appellate Court relied upon an admission of a  third party treating it as binding on the defendant.  The admission  was inadmissible as against the defendant.   This was  also a Second Appeal of 1981 disposed of on  24.9.1985. In either of the above situations, a substantial question of law  can arise.  The substantial question of law that arises for  consideration  in this appeal is:  "whether the  courts below  had  failed to consider vital pieces of evidence  and whether  the Courts relied upon inadmissible evidence  while arriving  at  the conclusion that the mortgage was sham  and that there was no relationship between the plaintiff and the defendant   as   mortgagor  and   mortgagee  but  the   real relationship was as landlord and tenant?  Point 1 is decided accordingly.   POINT 2:  We shall first deal with the  proof of  the  certified copy of the deed of mortgage.  So far  as the  mortgage  deed  is  concerned, the  plaintiff  filed  a certified  copy  and called upon the defendant to  file  the original.   The defendant refused to do so.  The  plaintiff, therefore, proceeded to file the certified copy as secondary evidence  under sub-clause (a) of section 65 of the Evidence Act.   This  was certainly permissible.  The mortgage  is  a document  required  to  be attested by two  attestors  under

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section  59 of the Transfer of Property Act and in this case it  is  attested  by two attestors.  The mode  of  proof  of documents  required to be attested is contained in  sections 68  to  71  of the Evidence Act.  Under section 68,  if  the execution  of  a document required to be attested is  to  be proved,  it will be necessary to call an attesting  witness, if  alive and subject to the process of Court and is capable of  giving evidence.  But in case the document is registered - then except in the case of a will - it is not necessary to call  an  attesting witness, unless the execution  has  been specifically  denied  by the person by whom it  purports  to have  been  executed.  This is clear from section 68 of  the Evidence Act.  It reads as follows:

     "Section  68:  If a document is required by law to  be attested,  it  shall  not  be used  as  evidence  until  one attesting witness atleast has been called for the purpose of proving  its  execution,  if there be an  attesting  witness alive,  and subject to the process of the Court and  capable of giving evidence:

     Provided  that  it shall not be necessary to  call  an attesting witness in proof of the execution of any document, not  being  a will, which has been registered in  accordance with  the  provisions of the Indian Registration Act,  1908, unless  its  execution by the person by whom it purports  to have been executed is specifically denied."

     In  the  present  case, though it was  stated  in  the written statement that there was no relationship between the parties  as mortgagor and mortgagee, the defendant  admitted in  his additional pleas in the same written statement  that the  mortgage deed was executed but he contended that it was executed  to  circumvent the Rent Control  legislation.   In fact,  in  his  evidence as DW2 the defendant  admitted  the execution  of the mortgage.  It must therefore be taken that there was no specific denial of execution.  Hence it was not necessary  for  the plaintiff to call the attestor into  the witness  box,  this not being a will.  The  plaintiff  could therefore  not  be  faulted  for not examining  any  of  the attestors.  Hence the mortgage stood proved by the certified copy.   The  Courts below were right in accepting  that  the deed   was  proved.   Point  2  is  decided  in  favour   of plaintiffs- appellants.

     POINT 3:

     The  point here is whether oral evidence is admissible under  Section  92(1)  of the Evidence Act to prove  that  a document  though  executed was a sham document  and  whether that  would amount to varying or contradicting the terms  of the  document.   The  plea of the defendant in  the  written statement  was  that  mortgage deed though true was  a  sham document  not  intended  to be acted upon and  that  it  was executed only as a collateral security.  It was pleaded that the  plaintiff demanded that a mortgage deed be executed  by defendant as "collateral security in order to guarantee that the  shop will be vacated by the defendant whenever demanded by  the plaintiff" and that this was done to circumvent  the rent  control law.  It was said that the alleged transaction of  mortgage  was  a sham transaction,  executed  only  with aforesaid  object.  The consideration of Rs.1000/- "was only in the nature of a collateral security or ’pagri’."

     The  plaintiff was and is a rich man and there was  no

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occasion  for him to mortgage his property.  It was  further pleaded

     "The  plaintiff  thus  demanded   Rs.1000/-  from  the defendant  by  way  of security and asked the  defendant  to thumbmark  some writing to arm the plaintiff with a right to get  the  shop  vacated according to his  sweet  will.   The defendant  who  was  in dire necessity of the shop,  had  to agree on the said condition put forward by the plaintiff".

     This  Court has held in Gangabai Vs.  Chhabubai  (1982 (1)  SCC  4) that in spite of Section 92(1) of the  Evidence Act, it is permissible for a party to a deed to contend that the  deed  was not intended to be acted upon but was only  a sham  document.   The bar arises only when the  document  is relied  upon  and  its  terms are sought to  be  varied  and contradicted.   In  the above case, it was observed by  D.A. Desai J as follows:

     "the  bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not when the case of a party is that the transaction  recorded in the document was never intended  to be  acted  upon  at  all between the parties  and  that  the document  is a sham.  Such a question arises when the  party asserts  that  there was a different transaction  altogether and  what is recorded in the document was intended to be  of no consequence whatever.  For that purpose, oral evidence is admissible  to  show  that the document executed  was  never intended  to  operate  as an agreement but that  some  other agreement  altogether,  not  recorded in the  document,  was entered into between the parties".

     But the question is whether on the facts of this case, the  reason  given  by  the defendant in  his  evidence  for treating the mortgage as a sham document, can be accepted.

     The reason given by the defendant appears to us rather curious.   One can understand a debtor incurring a debt  and executing  a deed as collateral security.  There is no  such situation  here.   Further,  if it is a deed  of  collateral security  by defendant, then the defendant would have had to execute  a  deed  in favour of the plaintiff and  not  vice- versa.   Here the plaintiff-owner has mortgaged his shop  to the  defendant,  as  security.   The plea  and  evidence  of collateral  security offered by the defendant appears to  us not to fit into a situation where the plaintiff has executed the  mortgage.  Obviously, if the plaintiff wanted to secure something  by  way  of  an   additional  security  from  the defendant,  the  normal  course would have been to  ask  the defendant  to give such a security and not for the plaintiff to  execute  a  mortgage.   Thus the  reason  mentioned  and evidence  given  by the defendant as to why a sham  document was executed falls to the ground.

     Under  Point 3 we therefore hold that though  evidence is admissible under Section 92(1) to prove that the mortgage is  a sham document, such evidence is lacking in this  case. Point 3 is decided against the defendant.  Points 4 & 5:  To accept  the plea of lease set up by the defendant, the trial court and the first appellate Court, relied upon the entries Ex.   D2  and  Exs.   D3 to D5 relating to  the  payment  of "rents"  by  defendant  as recorded in the  ’account  books’ allegedly  maintained by the defendant in the regular course of business.

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     The  Courts below, in our view, failed to notice  that no account book or books were ever produced by the defendant in  the  Court.   Exs.D2 to D5 filed into  Court  were  only ’extracts’  of the defendants’ account books.  The  extracts were  filed  two  years  after the  filing  of  the  written statement  and  one and a half year after the settlement  of issues,   without  any  explanation   for  the  delay.   The genuineness  of the extracts was challenged seriously in the cross-examination of the defendant who was examined as DW 2. It was specifically contended by the plaintiff ( see p.13 of the  appellant’s notes of arguments in the appellate  court) that   the  "account  books   were  never  produced".    The plaintiff’s  plea  against the admissibility of Ex.  D2  and Exs.   D3 to D5 in the trial Court was rejected by the  said Court  and  a  revision under Section 115 CPC was  filed  by plaintiff in the High Court.  That was dismissed by the High Court  saying  that there was no "case" decided  within  the meaning  of the word ’case decided’ in Section 115 CPC.  The plaintiff  therefore questioned the admissibility of  Exs.D2 to  D5  in  the  first  Appeal.   In  our  opinion,  it  was permissible  for him to raise the said question in the first appeal  in view of Section 105 C.P.C.  In the light of  what was  stated by the plaintiff in the memo of first appeal  in the  appellate Court, it cannot be said that the  ’accounts" produced by defendant were not objected to by the plaintiff.

     Ex.D2  is an extract of accounts.  So are Exs.  D3  to D5.  This is clear from para 21 of the judgment of the trial Court.  That para reads as follows:

     "The  plaintiff made the contention that the defendant relied  upon his account books to prove that he is a  tenant of  the  shop in dispute under the plaintiff.  He  made  the statement  that the payment of the rent to the plaintiff  is entered in his regular kept account book but strange enough, he  had  not  produced at any stage of  the  proceedings  an extract of account books which are Ex.D 3 to D 5 and this is wrong  to  state  that the defendant has  not  produced  the account books to show that he has ’not’ been paying the rent to  the plaintiff.  The plaintiff also contended that  Ex.D2 extract  of  the account books has been produced  and  which could  not  be  liable  to  be  accepted.   Whatsoever,  the document  has been admitted without objection.  It is liable to be considered while deciding issues".

     Unfortunately,  in  a latter passage, the trial  Court referred  to  these extracts as ’account books’ and  applied Section 34 of the Evidence Act.  The Court forgot that these were extracts of alleged accounts.

     Now  under Section 34 of the Evidence Act, entries  in "account books" regularly kept in the course of business are admissible  though  they  by themselves  cannot  create  any liability.  Section 34 reads as follows:

     "Section  34:   Entries  in   books  of  account  when relevant  -  Entries in books of account, regularly kept  in the  course of business, are relevant whenever they refer to a  matter  into  which the Court has to  inquire,  but  such statements  shall not alone be sufficient evidence to charge any person with liability".

     It  will  be noticed that sanctity is attached in  the

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law  of evidence to books of account if the books are indeed "account  books i.e.  in original and if they show, on their face,  that  they  are  kept  in  the  "regular  course   of business".   Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts  are  not filed into Court.  This is because,  from the  extracts, it cannot be discovered whether the  accounts are  kept in the regular course of business or if there  are any  interpolations  or whether the interpolations are in  a different  ink or whether the accounts are in the form of  a book with continuous page-numbering.  Hence, if the original books  have  not been produced, it is not possible  to  know whether  the entries relating to payment of rent are entries made in the regular course of business.

     It is only in the case of Bankers’ Books Evidence Act, 1891 that certified copies are allowed or the case must come under  Section  65(f) or (g) of the Evidence  Act.   Private extracts  of  accounts in other cases can only be  secondary evidence and unless a proper foundation is laid for adducing such secondary evidence under Section 65 or other provisions of  the  Evidence Act, the privately handwritten  copies  of alleged  account  books cannot by themselves be  treated  as secondary evidence.

     In the recent judgment of this Court in Central Bureau of  Investigation  Vs.  V.C.  Shukla ( 1998(3) SCC 410),  it has  been laid down that for purposes of Section 34,  ’Book’ ordinarily  means  a collection of sheets of paper or  other material,  blank,  written  or printed,  fastened  or  bound together  so  as to form a material whole.  Loose sheets  of paper or scraps of paper cannot be termed as ’book’ for they can  be easily detached and replaced.  It has also been held that the rationale behind admissibility of parties’ books of account  as  evidence is that the regularity of  habit,  the difficulty  of  falsification  and  the  fair  certainty  of ultimate  detection  give  them in a  sufficient  degree,  a probability  of  trustworthiness."  When that is  the  legal position,  extracts  of alleged account books, in our  view, were  wrongly  treated  as admissible by  the  courts  below though  the original books were not produced for  comparison nor  their  non-production was explained nor the person  who had  prepared  the  extracts was examined.   Therefore,  the private  extracts of alleged account books like Exs.D2 to D5 are  not admissible.  The principal evidence relating to the alleged  payment  of rent disappears and the foundation  for the  alternative  plea  of tenancy crumbles.   This  is  one reason why the finding relating to tenancy is vitiated being based  on inadmissible evidence.  We shall next refer to the vital  evidence or facts relating to the mortgage which have not  been  considered  by the Courts below.   The  defendant admitted  in his evidence as DW2 that the mortgage deed  was executed by him.  The endorsement of the Sub-Registrar shows that  the  money  of Rs.1000/- was paid as  mortgage  money. There is a presumption of the correctness of the endorsement made   by  the  Sub-Registrar  under   Section  58  of   the Registration  Act  (vide Baidyanath Singh vs.   Jamal  Bros. AIR  1924 PC 48), it can be rebutted only by strong evidence to the contrary.

     Another  important  aspect is that in the copy of  the Municipal House Tax Register Ex.D1, the defendant, Sohan Lal was  shown  as ’occupier’ of a shop just as  certain  others like   Ganpat,  Omprakash  Niranjan   were  also  shown   as occupiers.   Description  as occupiers does not  necessarily

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imply  occupation  only as tenants.  According to DW 3,  the rent  paid  by Om Prakash was Rs.40/- p.m.  and by  Niranjan was   Rs.22.50.   The  plaintiff   submitted  in  the  first appellate  Court that the annual value of both thus comes to Rs.40  +  Rs.22.50  = (Rs.62.50) x 12=Rs.750/-.   The  total annual  value  of  the shop having been fixed at  Rs.824  in Ex.D1,   that  leaves  only  a   balance  of  Rs.74  (  i.e. Rs.824-Rs.750).   The  plaintiff  submitted in his  memo  of arguments  before  the appellate Court that the  balance  of annual  rental  value  of Rs.74/- could not  relate  to  the occupation of Sohanlal as tenant in this shop, for according to  the  defendant,  the  monthly  rent  was  Rs.80/-.   The plaintiff  submitted  that  the balance of  Rs.74  could  be attributed  only  to  the occupation of Ganpat.   The  above aspect was also not kept in view by the lower Courts.

     One  other  important  point is that the term  of  the mortgage  deed is that the defendant is to be in  possession and the interest payable by the plaintiff as mortgagor is to be  set off against the ’profit’ realised by the mortgagor’s occupation  of the shop.  There is no recital that it is  to be set off against any "rent" payable by the defendant.

     We  have already pointed out that in regard to whether the  plaintiff was rich enough so as not to be in need to go in  for  a mortgage, there are conflicting findings  by  the trial Court.  The plaintiff’s acute need for money is proved by  the  fact  that  he incurred losses  in  regard  to  his partnership  with  the Haryana Woollen Mills.  This  aspect, according  to  the  plaintiff  (as  stated  in  his  written submissions)  is borne out by the reported judgment of  this Court  in L.Iswar Dass Vs.  The Haryana and General  Woollen Mills  Ltd.   (  AIR 1974 SC 592) to which plaintiff  was  a party.  The said judgment was referred to as evidence of the plaintiff’s  losses.  This aspect was also not considered by the lower Courts.

     In the result, we hold that the extracts from accounts are  not  "account books" falling within Section 34  of  the Evidence  Act and are inadmissible.  We also hold that vital material  was  omitted  from consideration  by  the  Courts. Thus,  the finding in regard to tenancy is liable to be  set aside.  Points 4 and 5 are held in favour of the plaintiff.

     POINT 6:

     The  appellate  Court,  in  our view,  went  wrong  in thinking  that  the plaintiff had only a half share  in  the property.   The defendant’s title was a derivative title  as mortgagee.   Having  came  into   possession  of  the  whole property  as  a  mortgagee   from  the  plaintiff,  treating plaintiff  as full owner it was not open to the defendant to question  the title of the plaintiff.  In Tasker Vs.  Mall ( 3  My.  8 Cr.63 ( 5 L.J.  Ch 321), Lord Cottenham said:  "To him  (  mortgagee) it is immaterial, upon repayment  of  the money, whether the mortgagor’s title was good or bad.  He is not  at  liberty to dispute it any more than a tenant is  at liberty  to  dispute his landlord’s title".   A  usufructory mortgagee  cannot deny the title of his mortgagor.  Nor  can he  set up adverse possession unless he actually leaves  the holding  and re- enters under a different status ( Jainandan Vs.   Umrao) ( AIR 1929 All.305) and (Sriram Vs.  Thakur)  ( AIR 1965 All.  223)

     Point 7:

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     The  judgments  of all the three courts therefore  are set  aside.  The suit is decreed for redemption as  follows. The  appellants  are  entitled  to  redeem  the  usufructory mortgage  and  get  possession  of the suit  shop  from  the defendant,  if  the appellants deposit in the  trial  Court, within three months from today, the sum of Rs.1000/-.  There is  no need to deposit any interest inasmuch as according to the deed, the defendant was to be in possession and interest was  to  be set off against the occupation of the shop.   We direct that on such deposit of Rs.1000/-, the defendant will produce  the mortgage deed into Court for cancellation.   In case  he does not produce the deed, within the said  period, it  will be deemed that the mortgage is cancelled.  On  such deposit  of  Rs.1000/-  as aforesaid,  the  defendant  shall restore  possession to the appellants.  On such  restoration of  possession, defendant shall be entitled to withdraw  the sum  of Rs.1000/-.  In case the defendant does not surrender possession  as aforesaid, it will be open to the  appellants to seek possession by way of execution.

     The  appeal  is  allowed.   Costs  of  appellants  are quantified at Rs.5,000/-.