LAWS(PVC)-1917-7-81

NIBARAN CHANDRA SEN Vs. NAGENDRA CHANDRA SEN

Decided On July 12, 1917
NIBARAN CHANDRA SEN Appellant
V/S
NAGENDRA CHANDRA SEN Respondents

JUDGEMENT

(1.) This appeal arises out of a suit to enforce a mortgage bond executed by the defendant No. 1. The defendant No. 2, who is the purchaser of the equity of redemption in respect of one of the properties in Schedule II at a sale held in execution of a decree upon a subsequent mortgage, and the defendants Nos. 3 and 4, who were subsequently added as parties defendants to the suit upon objection raised by the defendant No. 2, contested the suit. The defendant No. 2 in a written statement admitted that the defendant No. 1 had executed the bond but pleaded that the bond was not a bona fide transaction and that no consideration passed.

(2.) The Court of first instance decreed the suit, but that decree was reversed and the suit dismissed by the lower Appellate Court. The plaintiff has appealed to this Court.

(3.) The first question for consideration is whether the lower Appellate Court was right in holding the bond to be invalid because one of the attesting witnesses was not examined as required by Section 68 of the Evidence Act. The learned Judge says: Under Section 59 of the Transfer of Property Act, the bond must be attested by two witnesses and under Section 68 of the Evidence Act, one of the attesting witnesses must be examined to prove execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. In this case one of the attesting witnesses is a defendant, another is related to the defendants and the third is a very old man who is said to have lost his eyesight. Even if it be supposed that the first two would not speak the truth, the third ought to have been examined, as there is no evidence that he has lost his memory and no reason why he could not have spoken to the execution of the bond. Under the circumstances, it is quite clear that Exhibit I cannot be used in evidence so that the plaintiff s claim must fail on this ground."