SHEO GHULAM Vs. SHIB DAYAL AND LACHMAN PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit on foot of a mortgage, dated the 18th of November. 1904. The mortgage is alleged to have been made by Shib Dayal, the appellant, in favour of one Babu Lachman Singh. The plaintiff was the transferee from Babu Lachman Singh. The connected appeal also arises out of the same suit. The present appeal is by the defendant who alleged that the mortgage was not proved. In the connected appeal the plaintiff appeals against so much of the decree of the lower appellate court as disallowed a portion of the interest claimed. With regard to the proof of the mortgage the plaintiff produced one of the attesting witnesses, who proved that he saw the mortgagor sign the mortgage and that he signed his name as an attesting witness. On the face of it the mortgage appears to have been attested by a number of other witnesses, but they were not called. Nor did the witness who was called say that there was any other attesting witness present. He was not asked the question by either side. The question is whether under these circumstances, there being no other evidence, the mortgage can be said to be proved. The plaintiff contends that, once he called one attesting witness who proved that the mortgagor had signed the document in his presence, he had complied with the law as stated in Section 68 of the Evidence Act. On the other hand, the defendant contends that it is necessary in addition to calling one of the attesting witnesses to prove, by that witness or some other witness or witnesses, that there were at least two attesting witnesses present who saw the mortgagor sign, A very similar question arose in an unreported case, Second Appeal No. 1789 of 1914, decided by a Bench of this Court on the 12th of February, 1916, Uttam Singh v. Hukara Singh Since reported I.L.R. 89 All. 112. In that case it was proved that all the attesting witnesses were dead, and the proof of the mortgage consisted of proof that the signature of one of the attesting witnesses was in the handwriting of that witness,, and the further proof that the signature which purported to be that of the mortgagor was the signature of the mortgagor. The Court held that the mortgage, in the absence of any other rebutting evidence, was sufficiently proved. We think that the principle laid down in that case applies to the present case and we ought to follow it. In the connected appeal the lower appellate court has disallowed portion of the interest on the ground of undue influence. The learned Judge has pointed out that at the date of the mortgage the mortgagor was already indebted to the mortgagee. He speaks of the inability of the mortgagor to satisfy* those debts and the necessity to incorporate the debts into a mortgage and he therefore says that undue influence must be presumed. We must point out that the defence to the present suit was not undue influence either in respect of the principal or interest. No evidence was given on the point. So far as we know to the contrary the debtor may have been able to pay his debts, and it does not necessarily follow that he was obliged to make a mortgage, or that he was even asked to make a mortgage. Furthermore, bearing in mind the rates of interest) which are common in these provinces, Rs. 12 per cent, per annum with yearly rests was not an exceptionally high rate. We think that the circumstances of the present case were not sufficient to justify the lower appellate court in disallowing any portion of the interest. We dismiss the appeal with costs.