KALU RAM Vs. GHISALAL

JUDGEMENT

(1.) THIS is an appeal from the judgement and decree dated 4th February, 1963, of the Senior Civil Judge Sikar.

(2.) A preliminary decree for sale of the mortgaged property in terms of O. 34, R. 4 C. P. C. has been passed in favour of the plaintiff respondent. The suit is for enforcement of four mortgages dated 2nd December 1947, 16th April, 1948, 27th May, 1950 and 19th July, 1951 alleged to have been executed by defendant No. 1 in favour of the plaintiffs. All the deeds are duly registered. According to the plaintiff who is the son of Kedarmal, the original mortgagee, a sum of Rs. 15571/14/9 is due against the defendants on the said mortgages. Defendant No. 2 has been impleaded because he is the defendant No. 1 and is a member of the joint Hindu family with his father. The suit was contested by both the defendants. Defendant No, 1 denied the execution of the mortgages as also the receipt of any consideration. It was stated that in gambling transactions with the plaintiff he had to pay about Rs. 15000/- to him and he pledged about 70 Tolas of gold ornaments and when he asked him to render accounts and return the gold ornaments, he falsely instituted the present suit against him. Objection regarding the nonjoinder of necessary parties and misjoinder of defendant No. 2 were also taken. Defendant No. 2 raised similar pleas and further added that even if the mortgages were found proved to have been executed by his father, he was not liable because the said mortgaged were without any legal necessity. A number of issues were framed and issue No. 1 is as follows: - "were the mortgage-deeds marked as Ex. 1, Ex. 2, Ex. 3 and Ex. 4 executed by Kalooram defendant?" Both parties gave evidence in regard to the issues and the learned Senior Civil Judge on a consideration of the evidence came to the conclusion that the said mortgages were executed by Kalooram defendant. The other issues were also decided in favour of the plaintiff as a result of which the decree as stated above was passed in his favour.

(3.) THE appeal is, therefore, accepted, the judgment and decree of the lower court is set aside and the plaintiff is permitted to withdraw the suit as against both the defendants, but in the circumstances of the case when the lower court has found and rightly so that defendant No. 1 did execute all the mortgage-deeds by putting his signatures upon them and the plaintiff is compelled to withdraw the suit because the so-called attesting witnesses have not deposed that defendant No. 1 had put his signatures upon the deeds in their presence, or they had received personal acknowledgments thereon from him, the parties shall bear their own costs throughout. I desire to impress upon those who are called upon to prove the mortgage-deeds to bear in mind the definition of 'attested' as stated in sec. 3 Transfer of Property Act and provisions of sec. 68 of the Evidence Act. Provisions of both these sections should be strictly observed unless the case squarely comes within the proviso to sec. 68. .