JAGANNATH NARSINGDAS MARWADI Vs. RAVJI TULSIRAM PANSARE

JUDGEMENT

(1.) The plaintiff in this case sued to enforce his mortgage bond dated January, 8, 1912. The bond was for Rs. 500. The defendant No. 1 filed a written statement in which he disputed the claim, but he did not dispute either the execution or the validity of the mortgage bond. The defendant No. 2 was joined as a purchaser of a part of the mortgaged property subsequent to the mortgage, but he did not appear to contest the plaintiff's claim. The first issue raised was, whether the mortgage bond in suit was proved. It may be mentioned that when defendant No. 1 was examined in the suit, he admitted the execution of the bond in his evidence. The learned trial Judge, however, relying upon the decision in Dalichand Shivram V/s. Lotu Sakharam (1919) I.L.R. 44 Bom. 405; 22 Bom. L.R. 136 came to the conclusion that as there was no proof in the case of such attestations as are required by Section 59 of the Transfer of Property Act the bond was not proved and dismissed the plaintiff's suit.

(2.) In appeal to the District Court the same point was raised, and it was dealt with by the District Judge practically on the same lines. It may be mentioned, however, that he realised the circumstance which distinguishes this case from Dalichand V/s. Lotu, namely, that there was no evidence in the present case that the attestations had not been made in the proper manner, whereas in the other case there was such evidence.

(3.) The present appeal is preferred by the plaintiff to this Court, and the respondents have not appeared before us. The defendant No. 2 has not been served, and Mr. Patvardhan for the plaintiff agrees that defendant No. 2's name may be struck off from the suit, as he does not desire to press his mortgage claim against that part of the mortgaged property which has been transferred to him. He is content to limit his security to the property in the possession and ownership of defendant No. 1.