LAKSHMAN PUNJU SHET Vs. KRISHNAJI MAHARU BHOI

JUDGEMENT

(1.) The learned District Judge has unfortunately fallen into an error here. The document to be proved was a mortgage. On the face of it there were two attesting witnesses. One was dead, and therefore he could not bo called. The plaintiff called the other in accordance with Section 68 of the Indian Evidence Act 1872, the case being prior to the recent amending Act XXXI of 1926. That attesting witness then denied he had anything whatever to do with the document. Accordingly under Section 71 it was open to the plaintiff to prove the due execution of the document by other evidence. This ho proceeded to do, He called the writer not as an attesting witness, but to prove that the document was executed by the mortgagor, and also attested by these two attesting witnesses. We have read the evidence of the writer, Ex. 16. He does depose to these essential matters, viz., not only the execution by the mortgagor, but also the attestation by the two witnesses. And strange to say-having regard to the argument addressed to us for the respondents-he has not even been cross-examined. The trial Judge accepted the evidence of the writer, and held that the document was duly proved. The lower appellate Court does not say that it disbelieves the writer, but it allowed the appeal on the ground that the writer ought to have been an attesting witness. With all respect, that was not the real point at all.

(2.) In the result the appeal must be allowed and the order of the District Judge set aside. Unfortunately the lower appellate Court did not determine the remaining point as to legal necessity for the debt, and there must accordingly be a remand.

(3.) The respondents will pay the costs of the hearing of January 12, 1926, and also of this appeal.