RAM RATAN MISRA Vs. BITTAN KAUR

JUDGEMENT

(1.) The question raised in this second appeal by the defendant is an interesting one. A mortgage deed is executed. When it comes to the proof of the deed the only surviving attesting witness is not examined. Instead the plaintiff examines the lawyer who drafted the mortgage deed and helped in the execution of the deed. Admittedly, the lawyer had not signed the deed as an attesting witness. Both the courts below held the execution of the deed duly proved and also justified the absence of the attesting witness on the ground of his having been won over. The suit on the basis of the mortgage deed has been decreed by the courts below.

(2.) In this appeal learned counsel for the appellant contended that the execution of the mortgage deed has not been duly proved and the evidence of other witnesses could not be looked into or relied upon by the court below unless the case came under the proviso to Section 68 or fell within the ambit of Section 17 of the Evidence Act. Learned counsel also contended that the provisions of Section 68 are mandatory and cited certain reported decisions. Learned counsel also contended that it was incumbent on the appellant to have summoned the attesting witness and if he denied the execution of the mortgage deed or declined to give evidence of the execution on the ground of the loss of memory then and then only other evidence could be led. As such the other evidence relied upon by the court below is not relevant. If the attesting witness denied the execution of the mortgage deed he would be liable to be declared hostile and cross-examined under Section 154 of the Evidence Act. Learned counsel for the respondent strenuously argued that the case came within the proviso of Section 68 of the Act as the document, the mortgage deed was a registered document and it was not necessary to call an attesting witness in proof of the execution of the document. He also contended that unless the execution of the document had been denied by the person concerned, it was not necessary to call an attesting witness. It was further contended by the learned counsel that since the plaintiff was fully aware that the attesting witness had been won over it was not necessary to call such a witness for he would have in any event denied the execution of the document. The Court was, therefore, justified in looking into other evidence.

(3.) Having heard the learned counsel for the parties I am satisfied that there has been a miscarriage of justice in this case. Section 68 of the Evidence Act is mandatory. It reads.:-