RAM NAHAK Vs. SITA DAKUANI

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 28th April, 1967 of K. K. Das, J. passed in Second Appeal No. 252 of 1964. One Khali Dajua on behalf of himself and his minor son Ladu along with his son Raghunath Dakua executed on 3-31953 a registered deed of mortgage on conditional sale in favour of Ananta Nahak for a consideration of Rs. 600/-which was advanced to him in cash. The condition of the bond was that if the amount was not repaid within a period of two years from the date of the execution of the bond, mortgagee would become the full owner of the property and would enjoy the same absolutely. As the amount was not paid within the stipulated period, the mortgagee demanded payment or, in the alternative, possession of the mortgaged property and as the demand was not complied with, a suit was instituted in Court by the heirs of the mortgagee who was by then dead, against Khali Dakua and his two sons Raghunath Dakua and Ladu. Defendants 1 and 2 in the written statement admitted the execution of the bond, but contended that it was purely a benami transaction. Defendant No. 3 contended that he was not aware of the suit mortgage bond and that the same was not valid and binding on him. It is unnecessary for the purpose of this appeal to refer to other contentions raised on behalf of the defendants. At the time of hearing of the suit, two witnesses were examined on the plaintiffs' side. The first witness was plaintiff No. 1 who stated inter alia that-

(2.) SECTION 59 of the Transfer of Property Act enjoins that a mortgage bond for an amount of rupees one hundred or upwards, in order that it may be enforceable as such must be attested by at least two witnesses. The expression "attested" is defined in Section 3 of the T. P. Act as meaning attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument,. . . . and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time. . . .

(3.) SECTION 68 of the Evidence Act provides the mode of proof of the execution of the document required by law to be attested and it says that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is such an attesting witness alive, and subject to the process of the Court. There is a proviso to the section in the nature of an exception which in effect says, that it shall not be necessary to call an attesting witness in proof of the execution of a registered mortgage bond, unless its execution by the person by whom it purports to have been executed is specifically denied. We have already noticed the written statements filed in this case and it is clear therefrom that while defendants 1 and 2 had admitted execution of the mortgage bond, defendant No. 3 had not specifically denied the execution thereof. All that he stated was that he was not aware of the execution of the mortgage bond. In the circumstances, the proviso to Section 68 of the evidence Act is attracted. If, in such a case, execution of the document has still to be proved, it is not necessary for the plaintiff to call an attesting witness for the purpose, but execution and due attestation may be proved by other methods.