The central legal point established in the judgment is the requirement to prove the due execution of a sale deed and the limitations of the presumption under Section 60(2) of the Registration Act in the absence of the original sale deed.

R.L. Khurana, J.—The present second appeal has been directed by the defendants against the concurrent findings of the two courts below decreeing the suit of the respondents-plaintiffs for possession of the land in dispute (measuring 0-11-53 Hects. comprising of khasra No. 296/1 of Chak Badiara, Tehsil Chirgoan, District Shimla) by way of redemption of mortgage on payment of Rs. 3,000.

2. The plaintiff filed a suit, being Civil Suit No. 150/1 of 1989 before the learned Sub Judge 1st Class, Rohru, claiming the following reliefs: (a) decree for possession of the land in dispute by way of redemption. (b) decree for declaration that sale deed dated 20.1.1989 registered in the office of Sub Registrar, Chirgoan executed by plaintiff No. 2 Bhagat Ram (since died) in favour of defendant No. 2 Smt. Dakhu is null and void being the result of fraud and mis-representation; and (c) decree for permanent injunction for restraining the defendants from alienating/transferring etc. and getting the mutation attested on the basis of the abovesaid sale deed dated 20.1.1969.

3. Briefly stated, the facts as set out in the plaint are these. The plaintiffs are the owners of the land measuring 0-42-18 Hects. comprising of Khasra No. 296 of Chak Badiara, Tehsil Chirgoan, District Shimla in equal shares. A portion of this land, that is, the land in dispute was mortgaged with possession for a consideration of Rs. 3,000 in favour of defendant No. 1 in the month of Jaishtha 2045 (BK) through a writing, which writing is in possession of defendant No. 1. During the last week of February 1989, the plaintiffs offered and tendered the mortgage money to the defendant No. 1 with a request to handover the possession of the land in dispute to them by way of redemption of mortgage. The defendant No. 1 refused to do so on the ground that he share of plaintiff No. 2 in the land comprising of khasra No. 296 stood sold to his wife, that is, defendant No. 2. It was then revealed to the plaintiffs for the first time that the defendants by fraud and misrepresentation got a sale deed qua the share of plaintiff No. 2 (deceased) executed in their favour instead of a deed of mortgage.

4. The plaintiffs have averred that the defendants taking advantage of the illiteracy of plaintiff No. 2, who was also handicapped person of about 20 years of age, sometime in the month of December 1988, took plaintiff No. 2 to Rohru by representing that a mortgage deed was required to be executed and registered to enable them to get the necessary mutation sanctioned qua the mortgage. The defendant No. 1 got some document scribed at Rohru and without reading over and explaining the contents thereof to the deceased plaintiff No. 2 by representing the document to be a mortgage deed obtained thumb mark of plaintiff No. 2 on such document. Again on 20.1.1989 defendant No. 1 took deceased plaintiff No. 2 to the office of Sub Registrar at Chirgoan for the purpose of getting the said document registered. At the time of registration of the document, the contents thereof were neither read over nor explained to the deceased plaintiff No. 2 by the Sub Registrar. He was only asked if the document was thumb marked by him and whether the possession of the land in dispute was with the defendant No. 1. On the deceased plaintiff No. 2 having answered in the affirmative, the Sub Registrar made him to affix his thumb mark on the ^document. Hence the suit claiming the above reliefs.

5. The defendants while resisting the suit denied the mortgage and pleaded that the land subject matter of the sale was given to defendant No. 2 by deceased plaintiff No. 2 with the condition that in case he (the deceased plaintiff No. 2) failed to pay back the sum of Rs. 3,500 which was advanced to him, then he would sell the land in favour of defendant No. 2 for a consideration of Rs. 4,500 by way of a regular sale deed. It was further pleaded that since the deceased plaintiff No. 2 failed to return and repay the amount advanced to h