Viscount Cave :-

This is an appeal from a judgment and decree dated the 24th April, 1917, of the Chief Court of the Punjab, which modified a decree dated the 8th March, 1915, of the Senior Subordinate Judge of Lahore,

The history of the case may be shortly stated as follows :- On the 2nd October, 1907, the first two respondents acting by their agent and attorney, Mirza Jalal-ud-Din, a Barrister-at-law, mortgaged certain property in Mauza Asafpura in the District of Lahore to the appellant, the Wazir of Punch, for Rs. 30,000. It was provided by the mortgage that the loan should bear interest at 10 annas per cent, per mensem, and that an annual instalment of Rs. 6,000 towards the payment of the mortgage money and interest should be paid at the end of each year, commencing from the date of the completion of the mortgage deed. It was also provided that if two instalments should remain unpaid the mortgagee should be entitled to take possession of the land. The advance was made by a series of payments of which the last was made on the 2nd April, 1908. The instalments of principal and interest prescribed by the mortgage deed were not paid, and on the 26th April, 1910, Shankar Das, the agent and attorney of the appellant, wrote to Jalal-ud-Din pointing out that Rs. 36,293 were due for principal and interest up to the end of March, 1910, and calling upon him to pay the money or as much of it as he could pay and to adjust the account. The account was duly adjusted by Shankar Das and Jalal-ud-Din on the 2nd May, 1910, and the above sum of Rs. 36,293 was admitted to be due. Jalal-ud-Din asserts that on the 5th May, 1910, he paid to Shankar Das the sum of Rs. 26,510 on account of the mortgage money and interest; but this payment is wholly denied by Shankar Das. On the 4th August, 1910, Jalal-ud-Din, as agent for the mortgagors, sold the mortgaged property to Mr. Shah Din, a Judge of the High Court (since deceased) for Rs. 65,000; and the purchaser, having been informed by Jalal-ud-Din that the balance then owing on the mortgege was only Rs. 9,783, somewhat incautiously paid the whole purchase money to Jalal-ud-Din on his undertaking to discharge the balance due and obtain the mortgage deed with a release endorsed. This sum of Rs. 9,783 was the correct amount on the footing that Rs. 26,510 had been paid, as alleged by Jalal-ud-Din, on the 5th May, 1910. It is common ground that after the sale the following sums were paid by Jalal-ud-Din to Shankar Das generally on account of the mortgage money, viz., Rs. 3,000 on the 13th August, 1910, Rs. 2,500 on the 12th September, 1910, and Rs. 700 on the 21st September, 1910. Mr. Justice Shah Din from time to time pressed for the discharge of the balance owing on the mortgage and the delivery of the mortgage deed, but without effect and ultimately, on the 28th July, 1911, he caused bis nephew, Mr. Shah Nawaz, to write to the appellant referring to the sale of the property and asking for an adjustment of the account. The appellant replied requesting Mr. Justice Shah Din to settle the account with his (the appellant's) agent Shankar Das, and to pay to him the money found due. The Judge accordingly sent for Shankar Das and enquired of him what amount was still due to the appellant under the mortgage, and Shankar Das replied that the balance due was a little over Rs. 30,000. Thereupon the Judge sent for Jalal-ud-Din, who maintained that the amount due was much smaller, and produced what purported to be a receipt signed by Shankar Das for the sum of Rs. 26,510 paid on the 5th May, 1910. Shanker Das after some little hesitation admitted that the signature on the receipt was his; but alleged that he had affixed his signature to a blank sheet of paper, and that the body of the receipt had been afterwards written above his signature. He denied that a payment had been made on the 5th May, 1910. After some conversation (to which reference will be made hereafter) this suit was brought by the appellant against the mo