JUDGMENT

1. In 1874 Kahna and Singhu mortgaged the land in suit to the defendant's father Kirpa Earn with possession for Rs. 402. The land was to be redeemed within 8 years, and there was a stipulation in the deed that if the mortgagors did not redeem the land they would sell it. Kahna and Singhu are dead and the present suit was bought by their heirs for redemption. The defendant pleaded that foreclosure proceedings had been taken in 1894, that a notice was served on Singhu the surviving mortgagor, and that as Singhu had not paid the mortgage money within a year of the receipt of the notice the defendant had become absolute owner of the land.

2. The record of the proceedings of 1894 shows that on the application of Kirpa. Earn a notice of foreclosure was issued to Singhu, who appeared in Court and admitted having received the notice and a copy of the application, and said that he had not paid the mortgage-money, but urged that Kirpa Earn out down trees of the value of Rs. 352 without permission and that this sum should be deducted and said he would pay the balance.

3. The notice of foreclosure issued by the Court is, however, not on the record and the Munsif held that its validity could not be presumed and that the defendant was bound to prove that the foreclosure proceedings were valid, and as he had not done so the Munsif passed a decree for redemption.

4. The District Judge on appeal took a different view of the case, holding that the mortgage was not one by way of conditional sale, but a mortgage with an agreement that the mortgagors would sell the land if they failed to redeem it, and that, therefore, the mortgagee was not competent to tike foreclosure proceedings, but that his remedy should have been to sue to enforce performance of the agreement to sell. The learned Judge also found that an oral sale to the defendant, which was alleged in the grounds of appeal, had not been proved, and he dismissed the appeal. The defendant has presented a second appeal to this Court.

5. We do not agree with the District Judge in his construction of the mortgage of 1874. Although the words entered in the mortgage deed were "agar fakui-rahn-na, karainge to bai kardenge," we think there is no doubt that what the mortgagors really meant was that if they did not redeem the land it would be deemed to be sold. An agreement to sell would be useless without an agreement as to the price for which the land was to be sold. Moreover the plaintiffs in the First Court admitted that the mortgage was one by conditional sale, and the lower appellate Court has put an interpretation on the inortgage-deed which the, plaintiffs themselves had not put on it.

6. But although we differ from the lower appellate Court on that point we think that the suit must fail for the reason given by the Munsif. It is settled Jaw that the Court will not presume that all the formalities required by Regulation XVII of 1806 in proceedings for foreclosure have been observed, but the mortgagee must prove affirmatively the due performance of every necessary condition. There are numerous authorities on this point to which it is unnecessary to refer. It is argued for the appellant that as Singhu appeared in Court 1894 and admitted the receipt of the notice and took no objection to its validity it may be presumed that the notice fulfilled the requirements of the Regulation, but we cannot agree with the contention. Singhu may not have read the notice, and ha may even have been illiterate. At any rate, the mere fact of his raising no objection to the validity of the notice does not warrant the presumption that the notice fulfilled all the necessary conditions. The notice is unfortunately not forthcoming, and this fact makes it impossible for the appellant to prove that all accessary formalities were observed. We recognize the difficulty of his position, but we are unable to hold that the nonexistence of the notice relieves him of the burden of proving that the notice satisfied the requireme