RAJAMMAL Vs. CHINNATHAL

JUDGEMENT

(1.) THE plaintiff in O.S. No. 29 of 1969 on the file of the Court of the Subordinate Judge of Pudukottai is the appellant herein. She instituted the suit against the respondent on a mortgage Ex. A -1 dated 16 -11 -1964 said to have been executed by the respondent for a sum or Rs. 8000. The plaint itself stated that the respondent had repaid four sums of Rs. 50 each on 15 -4 -68, 30 -4 -68 and 21 -6 -68 and 30 -7 -68 towards interest and the suit was filed for recovery of the balance. One of the several defences that was put forward by the respondent was that she was not aware of the execution and due attestation of the document and that she had not even seen the appellant herein. She also denied the due execution and valid attestation of the mortgage Ex. A -1. On this question admittedly no attesting witness was examined as required by Section 68 of the Indian Evidence Act, in view of the denial of execution by the respondent P. W. 2, who is the scribe of the document, was examined. Having regard to this position, the learned trial Judge has stated that the effect of Section 68 of the Indian Evidence Act, which requires the examination of at least one attesting witness to a document, which under the law requires to be attested, has been considered in Venkatasubbiah v. Subbamma, AIR 1956 Andh Pra 195 and that it has been held in that case that "the proof contemplated under Section 68 can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses." It is on this basis only that the learned trial Judge decreed the suit to the extent of Rupees 5,000 on his finding that the mortgage was supported by consideration only to that extent.

(2.) THE plaintiff has filed the appeal contending that she is entitled to the entire mortgage amount due under the mortgage deed and not merely to the sum of Rs. 5,000 as held by the learned trial Judge, while the defendant has preferred a memorandum of cross -objections contending that even the decree for the sum of Rs. 5,000 ought not to have been granted by the learned Subordinate Judge.

(3.) WITH reference to the decision of the Andhra Pradesh High Court relied on by the learned trial Judge, namely, Venkatasubbiah v. Subbamma, AIR 1956 Andh Pra 195, the very same High Court in a subsequent decision in Gandham Rajyalakshmamma v. Rayanapati Satyavani, 1970 -2 Andh WR 88, held that the said decision of that High Court was no longer good law after the decision of the Supreme Court in Abdul Jabbar Sahib v. Venkata Sastri and Sons., AIR 1969 SC 1147, wherein the Supreme Court, as I have already pointed out, took the view that the animo attestandi must be present before a person can be said to be an attesting witness.