RADHA MOHUN DUTT Vs. NRIPENDRA NATH NANDY

JUDGEMENT

(1.) This appeal by defendant 2 arises out of a suit brought by the sub-mortgagee against the sub-mortgagor and the original mortgagor. Defendant 2 was the original mortgagor. The mortgage bond is dated 27 February 1920, and was executed in favour of defendant 1. Defendant 1 sub-mortgaged his right to the plaintiff by a deed dated the 18 January 1921. The Subordinate Judge, passed a decree in favour of the plaintiff. Defendant 2, in his appeal, takes the ground that neither the original mortgage bond nor the sub-mortgage-bond was properly attested. With regard to the bond executed by the original mortgagee, the contention of the learned vakil for the appellant is untenable, because there is the evidence of one witness that the other witnesses also at tested the document, and there was no cross- examination on the point. The argument with regard to the original mortgage bond has more substance Of the two witnesses, whose names appear as attesting witnesses, one was examined, viz., Mr. Sambhu Nath Banerjea. This gentleman was a vakil of this Court at the time when he attested the bond. He is now an advocate and a barrister-at-law. This gentleman stated in bis cross-examination that Mr. Susil Chandra Sen, the other attesting witness, was not present when the document was executed and that the signature of Mr. Susil Sen was not made in his presence. With regard to his own attestation : he said that he was present at the time of the mortgage-bond, that hesawEadha Mohun Dutt put his signature on the mortgage-bond and that he attested it. Prom his evidence it is quite clear that Susil Chandra Sen was not present at the time when the mortgagor put his signature on the bond.

(2.) According to the definition of "attestation," as interpreted by the Privy Council in the case of Shambu Patter V/s. Abdul Kadir Bowthan [1912] 35 Mad. 607, the attesting witness, in order to prove legal attestation of a document, must have seen the executant put his signature to the document and, in that view, it should have been held, as the appellant contends, that the document was not properly attested.

(3.) The learned Subordinate Judge, however, was of opinion that Mr. Sambhu Nath Banerjea, having given his evidence five years after the event, might not distinctly remember the details. That is quite possible. But the difficulty in supporting his judgment, on the ground the Subordinate Judge has stated, is that there is no other evidence on the record to prove proper attestation. The mortgagee even does not give his evidence that the other witness was present and had seen the execution. The Subordinate Judge further says that, when the mortgagor admits execution, the document should bind that person. The difficulty, again, in accepting this proposition is that the defendant 2, from the very outset, pleaded that the document was not properly attested. Under these circumstances the learned advocate for the original mortgagee, defendant 1, asked us to take the evidence of the other attesting witness, Mr. Susil Sen, who was then an attorney-at-law and acted on behalf of the mortgagee as a member of the firm of Messrs. Dutt and Sen. Mr. Susil Sen is also a vakil of this Court, and the learned advocate for defendant 1 requested us to examine this gentleman in furtherance of justice.