POOTHAKKA NACHIAR Vs. ANNAMALAI CHETTY

JUDGEMENT

(1.) This is an appeal from a mortgage decree. The mortgage; was executed by Defendants 1 and 2, their elder sister, Vengu Nachiar for Rs. 43,500, It is admitted that the whole of this amount was not paid, and the suit is brought for the principal amount of Rs. 24, 936 and interest. The executants are gosha ladies and at the time of execution Vengu Nachiar and the last defendant were wives of one. Udayana Thevar alias Delhi Batcha. The 2nd defendant, sister of the other two executants, was living with her sisters under the. protection of Delhi Batcha and subsequently married him.

(2.) The main objection taken by the appellants, Defendants 1 and 2 and the 8 defendant, is that the mortgage deed was, not duly executed and attested. The mortgage property had been leased by the sisters to certain persons now represented by Defendants 4 and 8, of whom the 4 defendant has not filed an appeal. The contention for the appellants is that the mortgage deed was not properly attested. It purports to be attested by a large number of witnesses but inasmuch as the executants are gosha ladies it is admitted that all the attesting: witnesses, except two, attested the document without actually seeing the execution which took place behind the purda, These. two witnesses are P.Ws. 1 and;2, viz, Arulammal, a dependant of the sisters, and Delhi Batcha, the husband of two of the sisters. These two witnesses deny having witnessed the execution, but the Subordinate Judge has found that their evidence is untrue. The signature of the three ladies, both at the time of execution and at the time of registration is admitted, but in their statements Defendants 1 and 2 deny proper attestation and also deny receipt of consideration. Arulammal deposes that she did sign the document and that she was present at the time of registration as an identifying witness, but she denies having been present at the execution. Her evidence is highly improbable, seeing that she pretends to know nothing whatever about execution. If that is so, it is extraordinary that she, a woman, should have been asked to attest the documents. Delhi Batcha also denies witnessing execution and puts forward as one ground for this assertion that the 2nd defendant was gosha to him.

(3.) This is a most improbable story considering the relations between them and it is flatly contradicted by the evidence of P.W. 3, the Sub-Registrar, who says that at the time of registration Arulammal and Delhi Batcha were the identifying witnesses of the executants. He also states that the male identifying witness, namely Delhi Batcha, must have been a person to whom the three executants were not gosha. There is no reason to disbelieve this statement ; for it is not essential that there should be two identifying witnesses; but in this case the Sub-Registrar thought it advisable to have two witnesses and accepted Delhi Batcha as one of them as he was in a position to go behind the screen and identify the executants. This false statement of Delhi Batcha, namely that the 2nd defendant was gosha to him throws a great deal of doubt on his evidence, which has apparently been given with a view to protect the executants. As against the evidence of P. Ws. 1 and 2, we have the evidence of P.W. 4 who attested the document outside the place where it was signed. He however, states that three ladies came into a place called Gowri Vilas in the palace when Delhi Batcha took the mortgage deed inside the building and brought it out to the witnesses outside, and that it then contained the signatures of the three sisters, Delhi Batcha and Arulammal. If this witness is believed, and the Subordinate Judge has believed him and no reason is shown why he should not be believed, it is a strong piece of evidence that the two attesting witnesses, P. Ws. 1 and 2, did actually witness the execution. In a case of this sort, it is very easy for gosha ladies to pretend that execution was not duly carried out, and, if the attesting witnesses can be, induced to perjure themselves, it is difficult for the other side to prove satisfactorily that the document was properly attested. It is therefore legitimate in estimating this evidence to consider the circumstances of the case. The three ladies admit their signature, but neither the first nor the second defendant (Vengu Nachiar being dead), is prepared to go into the witness- box and swear that they signed in the absence of witnesses. They are the persons who have the best knowledge of what took place behind the sereen and their omission to go into the witness box very strongly discredits their story. Delhi Batcha also states thatihe sent the document through one Karuppayi and asked her to get the Signatures of the three ladies. This Karuppyi has not been: examined. On the whole, therefore, the statement of P.W. 4 that the signatures of the three executants and the two attesting witnesses were placed on the- document behind the screen is sufficient proof that it was duly attested.