BANWARI LAL Vs. GOPI NATH

JUDGEMENT

(1.) This is a second appeal by a defendant Banwari Lal, against a decree of the learned District Judge of Farrukhabad who decreed the suit of the plaintiff for sale on a simple mortgage dated 10 April 1912. This deed purports to have bean executed for Rs. 600 by one Mt. Bilaso in favour of Gopi Nath. The plaintiff sued Mangala Prasad as the legatee of Mt. Bilaso under a will. The appellant Banwari Lal applied to be made a defendant and claimed to be a reversioner of this property along with Mangala Prasad on the death of Mt. Bilaso. The last mala owner being Parbhu Lal, the husband of Mt. Bilaso, the defendant claimed that Mt. Bilaso had only the right of a Hindu widow in this property, but the plaintiff claimed that she was the absolute owner and had full power to dispose of the property by will.

(2.) The questions which have been argued before us in appeal are firstly that there was no" finding as to legal necessity and that Mt. Bilaso had only the rights of a Hindu widow, and secondly that it is not proved that the mortgage deed was duly executed. In regard to the first point it is a fact that the lower appellate Court and the Court of first instance stated that no finding as regards legal necessity was required although that was one of the issues, because those Courts considered that Mt. Bilaso had an absolute right as owner in this property. Without expressing any opinion on this matter we proceed to consider the second point argued in appeal.

(3.) The evidence which was tendered to prove the mortgage deed consisted firstly in calling a witness, Banwari Lal. He was one of the three persons whose signatures appear on the deed of mortgage as attesting witnesses. But when Banwari Lal was called he said that Mt. Bilaso had not put her thumb impression on the mortgage deed in his presence and that he merely put his signature on the mortgage deed as Mangali Prasad the karinda of the lady asked him to do so. It is clear therefore that Banwari Lal, although he signed as an attesting witness was not an attesting witness within the meaning of attesting witnesses laid down in Section 3, T. P. Act. The plaintiff also tendered his own evidence to the effect that Mt. Bilaso put her thumb impression on the mortgage deed in his presence and in the presence of Badri Prasad and Mangala Prasad defendant, whose names also appear as attesting witnesses on the document. But this evidence of the plaintiff is not sufficient for the purpose of Section 3, T. P. Act, because the plaintiff does not state that these attesting witnesses made their signatures in the presence of Mt. Bilaso. Moreover it has been pointed out by learned Counsel for the appellant that this evidence is not admissible to prove the execution of the document under Section 71, Evidence Act, because Section 71 only applies: if the attesting witness denies or does net recollect the execution of the document.