MURUGESA MUDALIAR Vs. GOPALAKRISHNA MUDALIAR

JUDGEMENT

(1.) IN a neat, concise and pointed argument Mr. Thyagaraja Ayyar has taken three points in this case, with which I shall presently deal. It is necessary, however, for me to set forth a few facts before I actually deal with those points.

(2.) THE suit out of which this second appeal arises was instituted for the cancellation of a certain order made on an application for re -delivery by the plaintiff. The circumstances in which the application for re -delivery was made are these. The present defendant, appellant before me, is the auction purchaser in execution of a certain decree by a third party against one Kumaraswami Mudali. The purchase was in September, 1942, and the Court delivery pursuant thereto was in October, 1942. The present plaintiff applied for re -delivery on the ground that his younger brother Selvaraja Mudaliar had a usufructuary mortgage, Exhibit P -1, of the year 1936, from Kumaraswami and that there was later, in the year 1940, a release by him of the mortgage right in the plaintiff's favour. I he application was dismissed and the present suit was filed for setting aside the order of dismissal. The case of the defendant, it may be stated, is that the usufructuary mortgage in favour of the plaintiff's younger brother was a sham and nominal document. This plea was rejected by the Courts below and the suit has been decreed.

(3.) THE next point urged by Mr. Thyagaraja Aiyar is that the usufructuary mortgage, which is a document required by law to be attested, cannot be used as evidence in. the present case because there has been no compliance with the requirement of Section 68 of the Indian Evidence Act. The document is attested by two persons one Raman Nair and one Singaravelu. In regard to these two persons what the appellate Judge finds is that nobody knows where the one man is and so far as the other is concerned he was summoned as a witness by the plaintiff but did not appear in pursuance of the witness summons. The Courts below seem to have therefore thought that under Section 69 of the Indian Evidence Act, if there was evidence about the handwriting of the attestation of the attesting witness or witnesses that would be quite sufficient proof of the mortgage document. So, says the learned appellate Judge in paragraph 14 of his judgment: