SHIV DAYAL Vs. PUTTO LAL

JUDGEMENT

(1.) This appeal was heard on 26 June, 1931, when certain issues were remitted. On return of the findings, there was a further hearing on 3 November, 1931. The facts of the case which have given rise to this appeal are briefly these: On the 2nd August 1902, one Bhole, Chamar, husband of Mt. Amri, defendant 2 executed a usufructuary mortgage-deed in favour of Maharaj Baldeo Prasad, father of plaintffs 1 and 2, for Rs. 400. The mortgaged property consisted of 18: mango trees and one jaman tree. The mortgage bond purported to be attested by four witnesses including one Baldeo Prasad. The mortgagor, the mortgagee and the four attesting witnesses are all dead. On 26 April 1929, a suit was instituted by Puttu Lal and Banwari Lal, sons of the mortgagee and by one Rustam Kisan to whom the mango crops were sold for one year. They brought a suit in the Court of the Munsif of Farrukhabadi against Shib Dayal, the Zemindar, for a perpetual injunction restraining the latter from interfering with the plaintiffs possession, for possession in the alternative and for recovery of Rs. 35 as damages. The suit was resisted inter alia upon the grounds that Bhola was not the owner of the trees and that the mortgage bond had not been executed with the necessary formalities. Eight issues were framed by the trial Court. The suit was dismissed on the ground that Bhola was not the owner of the trees alleged to have been mortgaged by him and that the plaintiffs possession was not proved. The Court further found that Issues 3 and 5 were immaterial and unnecessary. The remaining issues were also decided but they were dealt with somewhat sketchily and the findings were not supported by a detailed reasoning.

(2.) The lower appellate Court on appeal held that Bhola was the owner of the trees in dispute, that he was in possession of the property and that the plaintiffs were also in possession of the property under the mortgage in suit. As the lower appellate Court was of opinion that the remaining issues had not been properly tried, it remanded the case under Order 41, Rule 23, Civil P.C. hence the appeal. The lower appellate Court had held that the execution of the mortgage bond by the mortgagor had been duly proved, presumably having reference to the provisions of Secs.68 and 69, Evidence Act. Secs.68 provides: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least, has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

(3.) Section 69 provides: If no such attesting witness can be found or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his hand-writing and that the signature of the person executing the document is in the handwriting of that person.