GANGARAM Vs. UMAI

JUDGEMENT

(1.) THE lower appellate Court has come to a finding that the executants admitted the execution to the attesting witnesses and that the latter attested on the strength of such admission of execution. This kind of proof was held insufficient to prove strictly the attestation of a mortgage-deed. But since the passing of the Transfer of Property Amendment Act, No. 27 of 1926, the matter has been set at rest and it has to be held that even on such evidence the attestation must be held to be duly, proved. The Madras High Court has held in Balaji Singh v. G. Gangamma A.I.R. 1927 Mad. 85, that the mortgage attested under such circumstances-must be held to be duly attested. No doubt, there is a ruling of the Allahabad High Court, reported in Girja Nandan v. Hanuman Das A.I.R. 1927 All. 1, in which a contrary view has been taken, but that view does-not appeal to me as sound. The result is that the appeal succeeds and the plaintiff's claim is decreed to the extent to-which it was entertained by the Court, of first instance. A fresh preliminary decree for sale with a due date six months hence will he passed under Order 34, Rule 4, Civil P.C., with liberty to plaintiff to apply for a personal decree, if not otherwise barred, against the mortgagors. A fresh account will be made allowing interest at the rate granted by the first Court. Appellants' costs of this appeal shall be included in the decretal amount. Respondents will bear their own.