HARIPADA MAITY Vs. ANNADA PROSAD HALDAR

JUDGEMENT

(1.) In this case the suit was brought by the plaintiffs to recover a sum of money said to be due on a mortgage bond dated 3 Pous 1322 B.S. alleged to have been executed by defendant 1. The bond was said to be given as security for repayment of the sum of Rs. 498 and there was an agreement to repay that loan in six yearly instalments of Rs. 83 in Falgoon every year from 1323 to 1328 and in default of payment of any one instalment interest was to run on the entire amount at half an anna per rupee per month. The plaintiffs case was that the defendants had paid nothing at all on the bond. Defendants 2 and 3 are said to be subsequent transferees and the remaining defendants were brought into the suit as having an interest in a prior mortgage. The suit was contested by defendants 1 and 3 and the defences which they raised were to the effect that the bond had not been duly executed and attested and alternatively that defendant 1, that is to say the mortgagor, was not of sound mind at the time ha executed the bond; further that the plaintiffs had taken advantage of defendant's mental condition and had improperly obtained execution of the bond. There was a further defence set up by defendant 3 to the effect that he had purchased the property and to redeem the prior mortgage he deposited the money due under it, but that the plaintiffs had not taken that money and so he had been obliged to bring a redemption suit against them and that the present suit was brought out of malice and without any cause of action.

(2.) The main points discussed in the case were three: (1) Was the bond duly executed and attested? (2) Was there any consideration given for the execution of the bond? (3) What was the mental condition of defendant 1 and was execution obtained by undue influence? The learned Subordinate Judge who tried the case found all these issues in favour of the defendants and accordingly he dismissed the suit. These findings were reversed on appeal by the learned Additional District Judge and he made a decree in favour of the plaintiffs. He also took upon himself to go into the question whether the rate of the interest charged in the bond was reasonable or not arid he took the view that it was excessive and ho assessed what he considered to be the proper rate of interest at Rs. 1-9-0 per cent per month. The only question which has been argued before us is whether or not the mortgage bond was properly attested. With regard to this the learned Subordinate Judge said that as regards attestation he thought that the plaintiffs had not succeeded in proving that the document was properly attested. He said: They have examined the scribe Brojomohan Bhandari who spoke everything except his attestation of the bond.

(3.) A perusal of his evidence had led him (the Subordinate Judge) to conclude that he wrote the bond and signed his name as the scribe but he did not appear to have seen the execution of the bond nor the attestation thereof by the other two witnesses. One of the alleged attesting witnesses Bhabendranath Teli was called and he said that he merely put his signature on the bond at the behest of the plaintiffs when neither defendant 1 nor any other attesting witness, not even the scribe, was present. Accordingly the learned Subordinate Judge said that Bhabendranath Teli could not be said to be an attesting witness. The other attesting witness Rati Kant Sarkar was not called. It has been said before us that the reason why he was not called was that he was ill at the time. It was obvious that if we take the view taken by the learned Subordinate Judge it would be right to come to the conclusion that this document was not properly attested. As against that the learned Additional District Judge thought that us the bond was admittedly registered and defendant 1, that is the mortgagor, had admitted execution of the bond before the Sub-Registrar, that was in itself sufficient to constitute the Sub-Registrar as an attesting witness and that the Court ought to take judicial notice of the attestation. With regard to the other alleged witness, the learned Additional District Judge said that as regards attestation the learned Subordinate Judge found that the bond was not properly attested because of the two attesting witnesses one Ratikanta Sarkar was not examined and the other Bhabendranath Teli stated that he merely put his signature on the bond at the behest of the plaintiff when the defendant was not there. The learned Additional District Judge then went on as follows: Further the scribe read out the bond and then read it over to the defendant; then the defendant signed it; and then the scribe signed it. This is dearly sufficient attestation within the meaning of Act 26 of 1926 read with Act 27 of 1927.