BINDESHRI PRASAD Vs. PANCHAYATI AKHARA MAHA NIRBANI GOSHAIN

JUDGEMENT

(1.) This is a defendant s-appeal arising out of a suit for sale on the basis of a mortgage-deed dated 8 October 1928, for Rs. 5,600, payable in five years, executed by Bindeshri Prasad in favour of the plaintiff, Panchayati Akhara. The document carried interest at annas 14 per cent per mensem, and also provided that if the mortgagor did not pay the interest within the stipulated period of five years, the mortgagee was entitled to realize the entire amount of the mortgage debt, either within the stipulated period, or after the. stipulated time. The present suit was instituted on 11 October 1932, and there was a clear allegation in the plaint that the mortgagor had not paid the interest as agreed upon.

(2.) The claim was resisted by defendant 1, the mortgagor, on the ground that the suit was premature, and further on the ground that the executant had not made his signature on the deed in the presence of the marginal witnesses of the document in suit, and that the completion and the execution of the document in suit were not made as provided by Section 59, T.P. Act; hence, in accordance with law, no mortgage in respect of the property in suit was effected, and the said property cannot be sold by auction. His sons, in addition to the pleas taken by their father, also pleaded that the mortgage debt was without legal necessity. The trial Court framed several issues, the second of which was, "Whether the deed in suit was duly executed according to law and is for consideration." It held that the suit was not premature and that there was legal necessity for the debts. As to the plea of want of due execution according to law, it merely remarked: The defendants admitted the execution of the mortgage-bond in suit. In the face of this admission of execution, no attesting witness need be produced to prove the document.

(3.) The defendants have come up in appeal, and the only plea urged on their behalf is that the due attestation of the mortgage-deed had not been proved. We find from the record that when the case name up for hearing on 7 March 1933, the plaintiff's counsel made the statement that he would not produce any evidence, as he did not consider it necessary to produce any witness in the first instance. Accordingly the defendants produced three witnesses who were examined, including defendant 1, Bindeshri Prasad Himself, who stated that when he signed the document, no attesting witnesses were present, and that none of the marginal witnesses signed it in his presence. The plaintiff then produced two witnesses, but none of them said anything about the attestation of the document. An attesting witness had apparently been Summoned, but he was not produced. It seems to us that the learned Subordinate Judge has taken a wrong view of the law. The execution of a document is one thing, and the attesting of it as required by law is quite another thing. As was laid down by their Lordships of the Privy Council in Hira Bibi V/s. Ram Hari Lal 1925 52 IA 362, a document required by law to be attested must be proved to have been signed by the executant thereof in the presence of the attesting witnesses; and admission by the executant under Section 70, Evidence Act of his signature on the document does not dispense with the proof of its attestation as required by law.