BENOY BHUSAN ROY Vs. DHIRENDRA NATH DEY

JUDGEMENT

(1.) This is an appeal "by the defendant in a suit to enforce a mortgage security. The document was executed on the 27 March 1911 by the father of the defendant in favour of the father of the plaintiff, to secure a loan of Rs. 35,00 which was to carry interest at the rate of 2 per cent. per month. The suit was instituted on the 9 February 1920 by the son of the mortgagee against the son of the mortgagor. The plaintiff stated that as the original document had been lost, he produced a certified copy from the Registration Office. The defendant contested the claim on a two-fold ground, namely, first, that there was no valid mortgage- bond, executed and attested in conformity with the provisions of Section 59 of the Transfer of Property Act; and, secondly, that no consideration had been paid on the basis of the mortgage transaction. The Subordinate Judge has overruled these contentions and has decreed the claim. On the present appeal, that decree has been assailed on each of the two grounds urged in the Trial Court.

(2.) As regards the first objection, the Subordinate Judge held that Section 70 of the Indian Evidence Act rendered it unnecessary for the plaintiff to prove execution and attestation of the bond, inasmuch as the defendant, in his written statement, admitted execution of the bond by his father. This view cannot be supported. Section 70 provides that the admission of a party to an attested document of its execution by himself, shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. The Subordinate Judge interpreted this section to mean that the admission by the representative of a party to an attested document may be treated as sufficient proof of its execution. The view is unsustainable on the plain language of the section. The section speaks of an admission by a party to an attested document of its execution by himself, that is, of its execution by the party concerned. An admission by the representatives of a party to an attested document of its execution by the party cannot be treated as an admission of the party to an attested document of its execution by himself.

(3.) Apart from this, there is an additional difficulty in the way of acceptance of the view taken by the Subordinate Judge. In the present case, no doubt, the defendant admitted that the bond was executed by his father. At the same time, he specifically denied that the bond had been duly attested as required by law. In such circumstances, it is incumbent up m the party who, relies upon the mottle instrument to establish that the document was attested as required by law. The case is covered, not by Nibaran Chandra Sen V/s. Nagendra Chandra Sen 44 Ind. Cas. 984 : 22 C.W.N. 444; Satish Chandra Mitra V/s. Jogendra Nath Mahalanobis 34 Ind. Cas. 862 : 44 C. 345 : 20 C.W.N. 1044 : 24 C.L.J. 175, but by Arjun Chandra Bhadra V/s. Kailas Chandra Das 70 Ind. Cas. 532 : 36 C.L.J. 373 : 27 C.W.N. 263 : (1923) A.I.R. (C) 149; It is consequently necessary for us to examine, whether the document has been proved, to have been duly attested.