MT MANKI KAUR Vs. HANSRAJ SINGH

JUDGEMENT

(1.) This appeal is by the defendant and arises out of an action on a mortgage. The first question that came up for determination by the Judges in the Courts below was whether the mortgage bond had been proved in the sense that witnesses who could prove the execution and purported to be attesting witnesses had been called and that the plaintiffs in this regard had satisfied Secs.68 to 71, Evidence Act. The position was this. There were four attesting witnesses. One of them was dead at the time, two others were called, but the absence from Court of the fourth was unexplained.

(2.) According to the decision of the Judges in the Courts below and to use the language of the Appellate Court: There can be no doubt that both the witnesses examined did really attest the bond in suit and in denying its execution by the Musammat they were both giving deliberate lies.

(3.) That is the position, and according to what I have just read, the learned Judge in the Court below has come to the conclusion that the plaintiffs were entitled to prove execution by a witness other than the attesting witness under Section 71, Evidence Act. It is the contention of Mr. Rai appearing on behalf of the appellant that the plaintiffs were not so entitled; that it was necessary to call the fourth witness to whom I have referred: in other words all the attesting witnesses who were alive had to be called before the plaintiffs could take advantage of Section 71. Section 68, Evidence Act provides: If a document is required to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.