LACHMAN SINGH Vs. SURENDRA BAHADUR SINGHA

JUDGEMENT

(1.) His Lordship after quoting the points referred proceeded.

(2.) The first point as framed above is. meant to decide whether, when a plaintiff sues on a mortgage deed and the mortgage deed not being admitted by the defendant or defendants, he has formally to prove it, it is necessary for him to give evidence of the fact that the deed had been attested by two witnesses; or whether it would be enough for him to comply with the provisions of Secs.68 to 71, Evidence Act. In other words, when. it is not specifically in dispute whether there were two or more attesting witnesses to the deed or less than two, whether it is enough for a party seeking to prove the document to call a marginal witness to prove the signature of the executant and the witness's own signature on the margin, the deed itself bearing on the face of it the attestation of more than one attesting witness. Again, in other words, the question is whether in the three cases decided in this Court : Ram Dei V/s. Munne Lal [1917] 1930 All. 669, Uttam Singh v. Huham Singh [1917] 39 All. 112 and Shib Dayal V/s. Sheo Ghulam [1917] 39 All. 241, have been correctly decided. The argument for the appellants as advanced by Dr. Katju was this. In order to make a mortgage deed admissible in evidence it may be enough for a party to examine only one attesting, witness and to prove that the attesting, ?witness attested the document and that the mortgagor signed it. To comply with the rules contained in Secs.68 and 69, Evidence Act, it may be enough for the party propounding the document not to adduce any further evidence. But, if he contented himself with a bare compliance with Secs.68 and 69, Evidence Act,, he may succeed in making the document capable of being read by the Court, but the evidence would not be enough to prove that the document creates or created a valid mortgage, and therefore if a mortgage has to be enforced, it must be proved that it was duly attested by at least two witnesses according to law.

(3.) The argument on the other side is that in the absence of anything to show that a mortgage bond, which on the face of it is attested by two or more witnesses, was not actually so attested, it is enough to prove that one marginal witness attested the deed and the mortgagor executed it. It is urged in support of this argument that the presumption under Section 114, Evidence Act, would be that the mortgage deed had been executed in the manner required by law and that everything that was likely to have happened at the execution of a mortgage did happen. Certain English cases have been quoted in support of this contention, which rely on a presumption of the correctness of things, and these are Wright v. Sanderson [1884] 9 P.D. 149, relied on in Uttam Singh V/s. Hukam Singh [1917] 39 All. 112 and Harris V/s. Knight [1890] 15 P.D. 170 and an Indian Case Jongendra Nath V/s. Nitai Gharan [1903] 7 C.W.N. 384 has also been cited. The first two were cases of a will and the last one was a mortgage case. It was further argued on behalf of the respondents that the rules laid down in the three cases reported in I.L.R. All. 39 have so long held good in this Court that it would be undesirable to pronounce them bad law after such a length of time. It becomes necessary to examine the three cases in Vol. 39 of the Allahabad series. In Ram Dei V/s. Munna Lal [1917] 39 All. 669 the pleadings of the parties do not appear from the report. We have sent for and examined the paper-book. We find that the suit was by the mortgagee on a simple mortgage alleged to have been executed by one Bachchu Lal, the late husband of the defendant. The defendant pleaded that so far as she was aware Bachchu Lal never executed any mortgage deed in favour of the plaintiff as alleged by him. On these pleadings it was held that the plaintiff had done all that was needed of him by law if he examined one of the attesting witnesses who said that the mortgagor had signed in his presence and he (the witness) had signed the deed as an attesting witness. It was pointed out at p. 111 of the Report that: It was not expressly proved that there was another attesting witness present who saw the mortgagor sign, but it was not proved to, the contrary that there was not another attesting; witness.