MITHA LAL Vs. GEHARILAL

JUDGEMENT

(1.) THIS is an appeal by Mithalal defendant N0. 3 against an order of remand passed by the District Judge, Pratapghar on appeal against the decision of Munsif, Dungla, dismissing the suit of the plaintiff on the ground that the mortgage-deed on which it was based was attested only by one witness.

(2.) THE facts out of which the present appeal arises are these. Gopilal defendant No. 1 executed a mortgage-deed in respect of his house property in favour of Geharilal plaintiff on 24. 1. 58 and delivered possession over it to the latter on the same day. Geharilal leased the property to Narayan defendant No. 2 on the same day and delivered possession to him. THE case of the plaintiff is that Narayan delivered possession to Gopilal collusively and the latter executed a sale-deed of the same property in favour of Mithalal defendant No. 3 on 29. 1. 58 and put him into possession. THE present suit was filed by Geharilal for obtaining possession over the property. It was contested only by Mithalal defendant No. 3 the first two defendants having admitted the claim in toto. THE mortgage deed was attested only by one attesting wetness before it was registered. Mithalal resisted the suit inter alia on the ground that the mortgage-deed having been attested only by one witness was void. THE trial court, without giving an opportunity to the plaintiff to produce oral evidence, held that the mortgage-deed was void as it was attested only by one witness. It accordingly dismissed the suit. On appeal to the learned District Judge it was contended on behalf of the plaintiff that the question as to whether the mortgage-deed was void on account of want of proper attestation was a mixed question of law and fact. THE learned counsel for the contesting respondent conceded before the learned District Judge that the Registrar's endorsement can amount to attestations of the mortgage-deed provided the conditions laid down for due attestation under section 3 of the Transfer of Property Act were otherwise fulfilled. THE learned District Judge accordingly set aside the order of dismissal and remanded the suit. He referred to a number of rulings for and against the proposition and expressed the opinion that the endorsement by the registrar can constitute due attestation provided it is proved that he signed the document in the presence of executant after toe latter admitted its execution. He remanded the case for decision in accordance with law after giving an opportunity to the plaintiff to produce evidence to show that the endorsement by the Registrar amounted to attestation within the meaning of sec. 3 of the Transfer of Property Act.