BABAN CHARAN SINGH Vs. PURNA CHANDRA MISRA

JUDGEMENT

(1.) IN this second appeal the sale Defendant is the Appellant from a decision of the learned Additional Subordinate Judge, Puri, setting aside a decision of the learned Additional Munsif, Puri, in a mortgage suit filed by the Plaintiff against the Defendant.

(2.) ON May 30, 1945 the Defendant borrowed from the Plaintiff Rs. 100/ - on mortgage of certain land, interest payable being 12 per sent per annum, the period of redemption provided in the mortgage deed being one year. Upon the failure of the Defendant to repay the loan the Plaintiff on May 11, 1953 filed the mortgage suit. The Defendant in his written statement resisted the claim of the Plaintiff. The Defendant pleaded that he had originally pledged gold and silver ornaments with the Plaintiff as "security for a loan of Rs. 50/ - which the Plaintiff had advanced to him. The Plaintiff wanted further security and there upon the Defendant executed the mortgage bond in suit. The Defendant also pleaded that the suit mortgage bond had not been legally executed.

(3.) MR . N. Mukherji, learned Counsel appearing for the Defendant -Appellant, contended that the alleged legal execution of the mortgage bond was denied in the written statement and the mortgage bond therefore is not admissible in evidence. Section 59 of the Transfer of Property Act requires a mortgage to be attested by two witnesses. In the present case the attesting witnesses are stated to be P.W. 2 Jaykrishna Misra and one Binoy Chandra Dasgupta, Jaykrishna Misra, P.W. 2 in his evidence stated that the Defendant did not sign in his presence. The other attesting witness was not examined. The scribe P.W. 2 was examined. He also could not prove the attestation of the document. Section 3 of the Transfer of Property Act interprets the word 'attested' in relation to an instrument to mean attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument etc. The learned Counsel contended that the document was not legally attested as required by law. In this context he also relied on the proviso to Section 68 of the evidence Act which provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for proving its execution provided that it shall not be necessary to call an attesting witness in proof of the execution of the document unless its execution by the person by whom it purports to have been executed is specifically denied. The effect of the proviso to Section 68 of the Evidence Act is that the said section will be no bar to the admissibility of a document if its execution has been admitted. The proviso in terms will apply if execution is admitted. In the present case it is sought to be argued that the word 'execution' means mere signing of the document and does not necessarily mean legal execution in compliance with all the formalities as required by law.