NUND KISHORE LAL Vs. KANEE RAM TEWARY

JUDGEMENT

(1.) This is a suit by a mortgagee to enforce a mortgage for Rs. 3,000, and the suit is defended, not by the mortgagor himself, but by a subsequent purchaser from him, that is to say, subsequent in point of date to the mortgage. The properties mortgaged were an entire mauza called Tutlo, and an eight annas share in a mauza called Atakora, and the mortgage is dated the 16 of August 1890. The Court below has decided in favour of the plaintiff, the mortgagee; and although our attention has not been directed to the precise terms of the decree passed, it was, I take it, an ordinary mortgage decree.

(2.) The mortgagor, as I have stated, has not defended the suit, but the purchaser has, and he is the present appellant, and various points have been raised by him in support of his present appeal. His first point is that the execution of the mortgage has not been properly proved; secondly, that as regards mauza Atakora, in which the mortgagor had in possession an eight annas share only, the objection is taken that as this was ancestral property, governed by the School of Mitakshara law no legal necessity had been shown necessitating the mortgage of this moiety. A third point was that as regards Atakora, the mortgagor was entitled to one half of this property in possession and to the other half in reversion expectant on the death of a Hindu widow, Mussummat Brojomoni Koer, whom I will call Mussummat, and that the half-share mortgaged was not the share to which he was entitled in possession, but the share to which he was entitled in reversion. The last point, which is the most important, is that the mortgage of Tutlo was the mortgage of a reversionary interest expectant upon the death of a Hindu widow, and that according to Hindu law the mortgagor had no power to create a valid and effectual mortgage of this reversionary interest.

(3.) I will now deal with these points seriatim. First, as to the execution of the mortgage not having been duly proved. The objection is that the witness, who was called to speak to the execution of the mortgage, one Dwarka Nath Misser, whose evidence will be found at p. 10 of the Paper Book, did not say that the mortgage was attested by two witnesses, as it was bound to be, having regard to Section 59 of the Transfer of Property Act. But it has not been, nor do I think it could have been, successfully contested that, having regard to Section 68 of the Evidence Act, the document has not been properly proved. The document was no doubt required by law to be attested by two witnesses, and on the face of it it is attested by three. Its due execution has not been denied in any of the written statements, for the defence was, not that the deed had not been executed, but that the execution of the deed had been brought about by the fraud of the plaintiffs. The execution of the mortgage has, in fact, never been challenged, and I think it has been sufficiently proved, within the meaning of Section 68 of the Evidence Act, and I may point out that the objection now raised is not raised in the grounds of appeal, for the objection raised in the grounds of appeal was that the mortgage had not been proved according to law. The objection is of a technical character, and I think we may fairly tie down the appellant on this point to the grounds of appeal in relation to it. The mortgage, then, has been duly proved.