BHAGWANDAS DHONDIDAS PUNEKAR Vs. BASAWWA RYAVAPPA KOLLI

JUDGEMENT

(1.) THIS is an appeal arising from a suit to enforce a simple mortgage, and the only question which arises is whether the mortgage in this ease was proved. It appears that the written statement which was filed by the two contesting defendants, defendants Nos. 1 and 2, was that they did not admit the legal execution of the document. Subsequently when defendant No. 1 went into the witness box, he did indeed admit that he as well as defendant No. 2 had signed a document conveying the property. But at the trial there was an issue framed as to whether the plaintiff proved the execution of the suit mortgage bond, and even though the mortgage was required to be attested and does purport to be attested by two witnesses, the plaintiff did not call any attesting witnesses to prove the execution. He called instead one witness who said that he was present at the time when the mortgage was executed, though he had not attested it and proved the signature of the executants to the bond as well as the signatures of the attesting witnesses. The learned trial Judge then came to the conclusion that even though signatures had been proved, it had not been shown that the bond was properly attested, because the sole witness who was examined to prove the execution including the attestations did not say that executants signed in the presence of the attesting witnesses, or the attesting witnesses signed the instrument on receiving from the executants a personal acknowledgment of the execution of the instrument. Similarly there was nothing to show that the attesting witnesses attested the mortgage bond in the presence of the executants. He, therefore, dismissed the plaintiff's suit. This decision of his was confirmed in appeal by the learned District Judge.

(2.) NOW , I am quite prepared to concede that there was no specific denial of the execution of the document by the contesting defendants, and consequently it was not necessary to call an attesting witness to prove the execution. But execution had to be proved, and inasmuch as the contesting defendants specifically stated by their written statement that they did not admit the legal execution of the bond, the effect is that they did not admit the mortgage, that is, a mortgage executed in accordance with the law; and inasmuch as the mortgage is required to be attested by two attesting witnesses it had to be proved not only that the mortgagors had signed the mortgage -deed but that the mortgage -deed was attested by the two witnesses as that word has been defined in the Transfer of Property Act. It is contended on behalf of the appellant plaintiff that inasmuch as this document was a registered document and the contesting defendants did not specifically deny its execution, the proviso to Section 68 of the Indian Evidence Act came into play, and it was not necessary to call an attesting witness to prove the document. That may be conceded. But Mr. Datar, who appears on behalf of the appellant, urges that the meaning of the words 'it shall not be necessary to call an attesting witness,' in the proviso is really speaking to dispense with any proof of attestations whatsoever. In support of this contention he relies upon the decision of this Court in Yakubkhan v. Guljarkhan (1927) 30 Bom. L.R. 565. In that case the mortgage -deed was attested by three witnesses, two of whom were dead at the date of the suit. One of the two had attested the mark of the executant lady before the Sub -Registrar made below her acknowledgment as executant. The defendants contended that they had no knowledge of the mortgage and that if it was really a genuine document it was a hollow one. They did not specifically deny the execution of the mortgage by the mortgagor. It was held that there having been no specific denial by defendants of execution of the deed, it was not necessary to call an attesting witness to prove it, by virtue of Section 68 of the Indian Evidence Act, as amended by Act XXXI of 1926. It was held further that even if there was a specific denial, the execution of the document was properly proved, because even though the only attesting witness who was alive and was called said that the mortgagor was not present when he attested it, one Roshankhan who had received from the mortgagor an acknowledgment of her mark before the Sub -Registrar could also be regarded as an attesting witness and the writer of the document was also an attesting witness because he had signed immediately after the execution by Mirjubibi his own name under the description of the executant's mark. There is nothing, however, in this case which would suggest that where execution of a mortgage -deed is not specifically denied it is not necessary to prove that the document was either executed or that the document was properly attested. It is true that when on p. 569 the second paragraph begins with the words But even if the written statement be taken to be a specific denial, we are of opinion that execution of the document is properly proved within the meaning of Section 68 of the Indian Evidence Act, plausibility is lent to the argument that what this Court intended to decide was that absence of a specific denial dispenses with proof of the document at all.

(3.) THIS , however, obviously caused unnecessary waste of public time and money and often cost to the parties where there was no specific denial of a mortgage. Parties may frequently be confronted with mortgages executed not by themselves but by others. In such cases they would often require formal proof of a mortgage. The proviso provides that if the document was registered such proof can then be given by any evidence.It is not necessary for that purpose to call an attesting witness. That was, as a matter of fact, the view which was taken inB.M.A.R.M. Chettyar Firm v. V. Htaw I.L.R.(1932) Rang 26, and it seems to me that that is also the view which was taken by their Lordships of the Privy Council in the ease of Lala Kundan Lal v. Musammat Musharrafi Begam (1936) L.R. 63 IndAp 326 : 38 Bom. L.R. 783. That was a case in which the defendant put the plaintiffs to proof of the mortgage -deed. The mortgage -deed was a registered deed, and the issues which their Lordships of the Privy Council stated were (p. 332):.(1) whether the plaintiffs have given sufficient proof of due attestation to satisfy the terms of Section 3 of the Transfer of Property Act 'and each of whom has signed the instrument in the presence of the executant;' (2) whether the plaintiffs have given sufficient proof in the case of an illiterate purdanashin lady that she thoroughly comprehended and deliberately of her own free will carried out the transaction. If Mr. Datar's contention is correct, the document, being a registered document and there being no specific denial, there could arise no issue like the issues which were framed by their Lordships of the Privy Council, because the document would require no proof. But the matter does not rest with their Lordships raising the issues in the case of Lala Kundan Lal v. Musammat Musharrafi Begam. They stated (p. 333) : It was, however, obligatory upon the plaintiffs to give due proof of the mortgage deed, and they claim to have done so by the evidence of the two attesting witnesses, Deonath and Badri,.... It seems to me quite clear, therefore, that what the proviso does is that it makes it unnecessary, when a document required by law to be attested is not specifically denied, to give proof of the due execution including therein the attestation by calling an attesting witness. It is permissible for the person who wishes to rely upon the document to give other proof of it; but it does not dispense with proof of due execution altogether.