UTTAM SINGH Vs. HUKUM SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit on foot of a mortgage. The only question which we have to decide in the present appeal is as to whether or not the lower Appellate Court was justified in holding that the mortgage had been proved. Section 59 provides that a mortgage can only be effected by a registered instrument signed by the mortgagor and attested by at least two witnesses. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence." Section 69 provides: If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." In the present case it was proved and admitted that all the attesting witnesses were dead. A witness was called who proved to the satisfaction of the Court that the attestation of two of the attesting witnesses was in their handwriting. It was also proved that the signature, of the person executing the document was in the handwriting of that person. It is contended that this was not sufficient proof and that it was necessary to produce some witness (though not an attesting witness) who would be able to state that the mortgage was in fact executed by the executant in the presence of the attesting witnesses. We think that there is no force in this contention. Once it was proved that the witnesses were dead, the evidence on the record (if believed) would be sufficient to prove the mortgage. Once this evidence was given, there was a presumption of the due execution of the document which it lay upon the other side to rebut [see Wright v. Sanderson, Sanderson, In re (1884) 9 P.D. 149 : 53 L.J.P. 49 : 50 L.T. 769 : 32 W.R. 560 : 48 J.P. 180], We think the decree was correct and should be affirmed. We dismiss the appeal with costs.