MAHABIR KASAIMDHAN Vs. MAKHDUM BAKHSH

JUDGEMENT

(1.) THIS is an appeal from an order of remand. The suit was on a mortgage. The contesting defendant, who is a transferee from the original mortgagor, put the plaintiff to proof of the execution and of the validity of the deed in suit, as well as of the passing of the consideration. The first Court held that the execution of the deed was proved, but it was not proved that it was attested by two witnesses as required by Section 59 of the Transfer of Property Act The lower Appellate Court has held that the attestation by two witnesses was proved. If this had come before us as a clear finding of fact on the part of the lower Appellate Court, it is doubtful whether we could have interfered with it, but the learned Subordinate Judge arrives at his conclusion by a method of reasoning which is apparent from the judgment itself. He admits that no witness deposed that the mark of the executant Phagu, by whioh the said Phagu, being illiterate, purports to have executed the deed in suit, was affixed to the document in the presence of the said witness. There is no evidence on the record to that effect. The learned Subordinate Judge says that it is proved, by a witness named Makhdum Bakhsh, that the signature of the executant Phagu was appended to this document by the scribe of the document at Phagu s request, and he refers to the case of Deo Narain Rai v. Kukur Bind 24 A. 319 : A.W.N. (1902) 127 as proving that this is sufficient execution. As a matter of fact the document with which we have to deal in the present case daces not purport to have been executed by the scribe s writing the name of Phagu, on behalf of Phagu, at the request of the said executant. It distinctly purports to have been executed by Phagu s affixing his mark to the same. What follows below the mark is merely a statement, certified as being in the handwriting of the scribe, to the effect that the above is the mark of Phagu and that the said Phagu admits having executed the deed in question and received the consideration there for. In the absence of any evidence that Phagu s mark was affixed to this document in the presence of any witness, the finding of the lower Appellate Court seems to be an impossible one. The decision of the first Court is right. We allow this appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs here and in the Court below. Costs in this Court will include fees on the higher scale.